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YALE MOOT COURT OF APPEALS - SPRING TERM 1997
No. 96-318
_____________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
_____________________________________________
DARYLL RICHARDSON AND JOHN WALKER,
Petitioners,
v.
RONNIE LEE MCKNIGHT,
Respondent.
_____________________________________________
On Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
BRIEF OF PETITIONERS
DARYLL RICHARDSON
AND JOHN WALKER
_____________________________________________
Jay Michaelson
Attorney for
Petitioners
Page
QUESTION PRESENTED ........................................... i
TABLE OF AUTHORITIES ......................................... iv
OPINION BELOW ................................................ 1
JURISDICTION ................................................. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ..............
STATEMENT OF THE CASE .........................................
SUMMARY OF ARGUMENT ...........................................
ARGUMENT
I. SUPREME COURT PRECEDENT AND ITS "FUNCTIONAL"
APPROACH TO QUALIFIED IMMUNITY FOCUS NOT ON THE
TITLE OR STATUS OF AN INDIVIDUAL BUT ON THE NATURE
OF THE FUNCTIONS THE PERSON IS FULFILLING AND THE
EFFECT LIABILITY WOULD HAVE ON THEM, AND THUS
FAVORS QUALIFIED IMMUNITY FOR PRIVATE CORRECTIONAL
OFFICERS PERFORMING PUBLIC FUNCTIONS UNDER
CONTRACT WITH THE STATE OF TENNESSEE.........
II. THERE IS PRECEDENT IN THE COMMON LAW FOR HOLDING
PRIVATE ACTORS IMMUNE FROM TORT LIABILITY WHEN
THEY ACT PURSUANT TO A STATE DIRECTIVE....
III. PUBLIC POLICY FAVORS EXTENDING QUALIFIED IMMUNITY
TO PETITIONERS, BECAUSE ALLOWING FRIVOLOUS, BUT
VEXATIOUS, LAWSUITS TO PROCEED PUTS AN UNFAIR
DOUBLE-BIND ON THEM, INHIBITS THEIR ABILITY TO
PERFORM THEIR PUBLICLY-MANDATED AND ESSENTIAL
CIVIC FUNCTIONS, AND UNDERMINES THE AUTHORITY
NECESSARY TO MAINTAIN A SAFE AND SECURE
CORRECTIONAL FACILITY.....
A. HOLDING PRIVATE PRISON GUARDS PERSONALLY
LIABLE FOR CONSTITUTIONAL OFFENSES COMMITTED
AS PART OF THEIR RESPONSIBILITIES WOULD
UNJUSTLY PUNISH THEM FOR EXERCISING THEIR
DISCRETION AS REQUIRED BY THE OBLIGATIONS OF
THEIR POSITIONS.........
B. HOLDING PRIVATE CORRECTIONAL OFFICERS
PERSONALLY LIABLE FOR CONSTITUTIONAL OFFENSES
COMMITTED AS PART OF THEIR RESPONSIBILITIES
WOULD HARM THE PUBLIC GOOD BY INHIBITING
THEIR ABILITY TO PERFORM THEIR PUBLICLY-MANDATED FUNCTIONS.......
1. PRIVATE CORRECTIONAL OFFICERS, LIKE
STATE CORRECTIONAL OFFICERS, WOULD BE
UNABLE TO EFFECTIVELY MAINTAIN
DISCIPLINE AS REQUIRED BY THEIR
PUBLICLY-MANDATED DUTIES ABSENT
QUALIFIED IMMUNITY FROM
FRIVOLOUS, BUT VEXATIOUS, LAWSUITS.
2. PRIVATE PRISONS, LIKE STATE PRISONS,
WOULD BE UNABLE TO FUNCTION EFFECTIVELY
IF THEIR EMPLOYEES WERE NOT SHIELDED
FROM COSTLY FLOODS OF LITIGATION BY
QUALIFIED IMMUNITY...........
C. THE GOOD FAITH DEFENSE IS INSUFFICIENT TO
AVOID THE PERVERSE INCENTIVES WHICH ANIMATE
QUALIFIED IMMUNITY DOCTRINE.....
D. ALLOWING QUALIFIED IMMUNITY WOULD NOT
ENDANGER THE CONSTITUTIONAL RIGHTS OF INMATES
OF TENNESSEE'S PRIVATE PRISONS.....
IV. CONCLUSION: SUPREME COURT PRECEDENT, COMMON LAW, AND
PUBLIC POLICY ALL FAVOR GRANTING QUALIFIED IMMUNITY TO
PRIVATE CORRECTIONAL OFFICERS PERFORMING TRADITIONAL
PUBLIC FUNCTIONS SUCH AS PETITIONERS......
Cases: Page
Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3041
(1987) ..
Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108 (1982)
.......
Burrell v. Trustees of Ga. Military College,
970 F.2d 785,(11th Cir. 1992),
cert. denied, 507 U.S. 1018, 113 S.Ct. 1814 (1993)
.....
Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894 (1978)
........
Citrano v. Allen Correctional Center, 891 F.Supp 312,
(W.D. Louisiana, 1995) .........
Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496
(1985) ....
Dunn v. Mellon, 174 Pa. 11, 23 A. 210 (1892) .......
Eagon v. City of Elk City, 72 F.3d 1480 (10th Cir.
1996) ....
Forrester v. White, 484 U.S. 219, 108 S.Ct. 538
(1988) ......
Frazier v. Bailey, 957 F.2d 920 (1st Cir. 1992) .....
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727
(1982)
Howell v. Burden, 12 F.3d 190 (11th Cir. 1994) ......
Howell v. Evans, 922 F.2d 712 (11th Cir. 1991) ......
Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984 (1976)
.......
Klauder v. Cox, 295 Pa. 323, 145 A. 290 (1929)
Lee Tung v. Burkhart, 59 Or. 194, 116 P. 1066 (1911).
Leeks v.Cunningham, 997 F.2d 1330 (11th Cir. 1993),
cert. denied, 510 U.S. 1014 (1993)
Lugar v. Edmonson Oil, 457 U.S. 922, 102 S.Ct. 2744
(1982)...
Malley v. Briggs, 475 U.S. 335,
McKnight v. Rees, 88 F.3d 417 (1996).........
Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806
(1985).....
O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct 2486
(1957) ....
Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213 (1967)
..
Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855
(1978) ...
Scheuer v.Rhodes, 416 U.S. 232, 94 S.Ct. 1683
(1974) .......
Sherman v. Four County Counseling Center,
987 F.2d 397 (7th Cir. 1993) ...
Warner v. Grand County, 57 F. 3d 962 (10th Cir.
1995) .......
Williams v. O'Leary, 55 F.3d 320 (7th Cir. 1995),
cert. denied, ___ U.S. ___, 116 S. Ct. 527
(1995) .....
Wood v Strickland, 420 U.S. 308, 95 S.Ct. 992
(1975) ........
Wyatt v.Cole, 504 U.S. 158, 112 S.Ct. 1827 (1992)
..
FEDERAL CONSTITUTIONAL PROVISION:
Eighth Amendment ............
STATUTE:
42 U.S.C. 1983 ............
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
_____________________________________________
No. 96-318
DARYLL RICHARDSON AND JOHN WALKER,
Petitioners,
v.
RONNIE LEE MCKNIGHT,
Respondent
_____________________________________________
On Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
_____________________________________________
BRIEF OF PETITIONERS
DARYLL RICHARDSON
AND JOHN WALKER
_____________________________________________
2. 42 U.S.C. 1983 provides, in relevant part,
Every person who, under color of any statute, regulation,
custom, or usage, of any State or Territory, subjects, or causes to
be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
Respondent filed a claim under 42 U.S.C. 1983 on March 3, 1994 against Officers Richardson and Walker, and against John Rees, the warden of SCCC. Rees was subsequently dismissed from this suit.
Petitioners moved to dismiss the complaint, asserting that they were entitled to qualified immunity as correctional officers performing traditional public functions for the state of Tennessee. The United States District Court for the Middle District of Tennessee, Thomas A. Higgins, J., denied the motion to dismiss, holding that qualified immunity categorically could not be extended to private, for-profit corporations or to their employees. See McKnight v. Rees, 88 F.3d 417, 419 (6th Cir. 1996). Petitioners filed an interlocutory appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817 (1985) ("denial of qualified immunity ... to the extent that it turns on an issue of law, is an appealable final decision' within the meaning of 28 U.S.C. 1291 . . . ."). Though every other circuit court that had faced the issue had extended qualified immunity to private parties when they were engaged in public functions, the United States Court of Appeals for the Sixth Circuit, Boyce F. Martin, Jr., J., affirmed the district court's ruling on July 10, 1996, on the grounds that public policy concerns and this Court's holding in Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1827 (1992), barred such parties from asserting qualified immunity. McKnight, 88 F.3d at 423-25 (6th Cir. 1996). This Court granted certiorari on November 27, 1996.
Though private correctional officers seeking qualified immunity from 1983 damage actions are a relatively recent phenomenon, this Court's functional approach to qualified immunity cases is not. Described as "running through [qualified immunity] cases with fair consistency," Forrester v.White, 484 U.S. 219, 224, 108 S.Ct. 538, 542(1988), the Supreme Court's functional orientation "clearly indicate[s] that immunity analysis rests on functional categories, not on the status of the defendant." Briscoe v. LaHue, 460 U.S. 325, 342, 103 S.Ct. 1108, 1119 (1982). The questions this Court has asked, in case after case, are (1) "the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and [second] . . . the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions." Forrester, 484 U.S. 219 at 224, 108 S.Ct. at 542. See also Harlow v. Fitzgerald, 457 U.S. 800, 810, 102 S.Ct. 2727, 2734 (1982) (explaining functional approach). In the instant case, Petitioners are not parties invoking state law for a private purpose, like the creditor in Wyatt v. Cole, 504 U.S. 158, 166, 112 S.Ct. 1827, 1832 (1992), but private correctional officers functionally equivalent to the correctional officers granted qualified immunity by this court in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855 (1978). Given Procunier and the functional questions this Court asks in qualified immunity cases, Petitioners are clearly entitled to qualified immunity under Supreme Court precedent.
Common law, contrary to assertions in the opinion below, McKnight, 88 F.3d at 420, shares this functional orientation. Though case law is sparse and not necessarily determinative of the "precise contours" of immunity, Anderson v. Creighton, 483 U.S. 635, 644, 107 S.Ct. 3034, 3042 (1987), several courts in the late nineteenth and early twentieth century excused private defendants from tort liability when they were performing public functions in accord with state mandates. See Dunn v. Mellon, 174 Pa. 11, 23 A. 210 (1892) (holding immune from liability private landlord who altered tenant's dwelling in furtherance of highway commissioner's order); Lee Tung v. Burkhart, 59 Or. 194, 116 P. 1066 (1911) (denying conversion claim against private party who had removed plaintiff's property from a vacated store because said removal was "merely an assertion of her claim of right to render the municipal officers of Portland assistance"). Anticipating this Court's emphasis of function over the form of the actor, the Pennsylvania Supreme Court in Dunn held that "if . . . the municipal officer would be exempt from individual liability for executing the orders of the city, we know of no reason why the citizen should be subject to such liability." Dunn, 147 Pa. at 18, 174 Pa. 11, 23 A. at 210. Petitioners in the instant case, like the defendants in Dunn and Lee Tung, are private citizens fulfilling a public function in pursuant to an express contract with the state of Tennessee, and are clearly entitled to qualified immunity to the extent that the common law forms a basis for this Court's immunity jurisprudence.
Finally, public policy concerns strongly argue for qualified immunity for private correctional officers such as Petitioners. In the terms of this Court's policy rationales for qualified immunity that were elucidated in Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688 (1974), denying immunity here and allowing litigation to proceed (1) would represent an unjust punishment of Petitioners for exercising the discretion that is required by their position, and (2) would seriously inhibit the execution of Officers Richardson's and Walker's public duty. Every close judgment call, every tight restraint, and every adverse decision would -- absent immunity -- provide the pretext for an aggrieved inmate to bring a "frivolous, but vexatious" lawsuit. Forrester, 484 U.S. at 226, 108 S.Ct. at 544. And because mounting a subjective good-faith defense typically requires "broad-ranging discovery and the deposing of numerous persons, including an official's professional colleagues, . . . peculiarly disruptive of effective government," Harlow, 457 U.S. at 817, 102 S.Ct. at 2737-38 -- a fortiori the effective maintenance of a prison -- denying qualified immunity would make the courthouse as much a focus of Petitioners' lives as the jailhouse, and render the entire concept of privatized correctional institutions infeasible.
Qualified immunity, with its quickly resolvable "objective reasonableness" standard, is precisely the "balance between compensating those who have been injured by official conduct and protecting government's ability to perform its traditional functions," Wyatt, 504 U.S. at 167, 112 S.Ct. at 1833, that is necessary in the unique context of a correctional institution. Clear violations of constitutional rights are not immune from suit, but frivolous claims by disgruntled inmates are not entertained. The mere formalism of who writes Officer Richardson's paycheck, and the fact that SCCC -- like any other correctional facility -- seeks to operate as efficiently and cost-effectively as possible, should not upset this balance. Petitioners perform public functions identical to the state prison guards in Procunier, face the same difficult working conditions, and have the same set of concerns. They should be entitled to the same qualified immunity as a matter of law.
Unlike absolute immunity, qualified immunity is only available if the party in question "did not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wyatt, 504 U.S. at 166, 112 S.Ct. at 1832 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). Qualified immunity thus "strikes a balance between compensating those who have been injured by official conduct and protecting government's ability to perform its traditional functions." Wyatt, 504 U.S. at 167, 112 S.Ct. at 1833.
In evaluating immunity claims, this Court has consistently adopted a "functional approach," which emphasizes not the rigid formalism of a party's title or status but (1) the nature of the functions the person is fulfilling and (2) the effect the exposure to liability would have. Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542 (1988)(describing functional approach as "[r]unning through our cases, with fair consistency," and denying immunity to a judge acting in his executive role of hiring probation officers); Harlow, 457 U.S. at 810, 102 S.Ct. at 2734; Cleavinger, 474 U.S. at 201, 106 S.Ct. at 501. Supreme Court immunity cases "clearly indicate that immunity analysis rests on functional categories, not on the status of the defendant." Briscoe v. LaHue, 460 U.S. 325, 342, 103 S.Ct. 1108, 1119 (1982).
Thus, though one might read Wyatt v. Cole, which decided the "very narrow" issue of qualified immunity for a private party invoking state replevin statutes, Wyatt, 504 U.S. at 168, 112 S.Ct. at 1834, as barring qualified immunity for private parties, the relevant demarcation for this Court's inquiry is not between categories of "private" and "public" parties -- a distinction which has little coherence in the age of Amtrak, Comsat, and private prisons like SCCC -- but rather the functions which the parties in question serve. The defendant in Wyatt was using state statutes for private ends -- seizing the property of a former business partner. Wyatt, 504 U.S. at 160, 112 S.Ct. at 1829. Officers Richardson and Walker are maintaining a prison for the state of Tennessee. They are functionally equivalent not to the creditor in Wyatt but to the correctional officers granted qualified immunity in Procunier, 434 U.S. at 561, 98 S.Ct. at 859, the prison discipline committee in Cleavinger, 474 U.S. at 193, 106 S.Ct. at 496, and other law enforcement officers.
That there may be some additional private interest, such as the financial interests of Petitioners' employer, CCA, in no way affects the "nature of the functions with which a particular official or class of officials has been lawfully entrusted," Forrester, 484 U.S. 219 at 224, 108 S.Ct. at 542 (emphasis added), which this Court has held to be the fundamental criterion in its qualified immunity jurisprudence. Though SCCC, like any correctional institution, has an interest in operating as efficiently as possible, the questions this court has always asked in immunity cases are what public function is being performed, what public good being advanced, and what effect liability would have on them. Forrester, 484 U.S. 219 at 224, 108 S.Ct. at 542. Here, it is "beyond peradventure" that Officers Richardson and Walker are performing a public function in the furtherance of the public interest in having safe, secure, and efficient prisons, McKnight, 88 F.3d at 424, and, as discussed in more detail below, that exposing these officers to "frivolous, but vexatious" lawsuits to exhaustively and expensively second-guess every judgment call they make in the line of duty would seriously impede their ability to carry out these functions. Forrester, 484 U.S. at 226, 108 S.Ct. at 544. Officers Richardson and Walker hold an office "requiring them to exercise discretion" and are "principally concerned with concerned with enhancing the good," Wyatt, 504 U.S. at 168, 112 S.Ct. at 1833, not by dint of some abstract formal status, but because of their function -- because it's their job.
Understood functionally, then, the instant case breaks no new ground whatsoever, and granting qualified immunity here follows naturally from this court's granting of qualified immunity to state prison guards in Procunier, 434 U.S. at 560, 98 S.Ct. 859. Indeed, in the years following Wyatt, every circuit court in the country except the Sixth has followed the Court's functional approach, and granted qualified immunity to private actors performing public functions, even when they happened to be employed by for-profit organizations. Williams v. O'Leary, 55 F.3d 320 (7th Cir. 1995); cert. denied, 116 S.Ct. 527 (1995)(granting qualified immunity to prison doctor employed by private corporation under government contract); Warner v. Grand County, 57 F. 3d 962 (10th Cir. 1995) (granting qualified immunity for employees of private crisis center who conducted strip search at behest of police officers); Howell v. Burden, 12 F.3d 190 (11th Cir. 1994), aff'g Howell v. Evans, 922 F.2d 712 (11th Cir. 1991) (upholding pre-Wyatt finding of availability of qualified immunity to physician employed by private corporation under contract to provide medical services in Georgia state prison); Leeks v. Cunningham, 997 F.2d 1330 (11th Cir. 1993), cert. denied, 510 U.S. 1014 (1993); Sherman v. Four County Counseling Center, 987 F.2d 397 (7th Cir. 1993) (granting qualified immunity to private hospital acting pursuant to a court order); (granting qualified immunity to private physician providing medical services under contract with county jail). See also Eagon v. City of Elk City, 72 F.3d 1480 (10th Cir. 1996) (granting qualified immunity to private chairperson of civic organization screening holiday displays for town government); Frazier v. Bailey, 957 F.2d 920 (1st Cir. 1992) (granting qualified immunity to private social workers under contract to perform statutorily mandated investigations); Burrell v. Trustees of Ga. Military College, 970 F.2d 785, 796 (11th Cir. 1992), cert. denied, 507 U.S. 1018, 113 S.Ct. 1814 (1993) (dividing pre-Wyatt cases into those in which private parties invoked state law for private ends and thus lacked qualified immunity and those in which private parties performed public functions and were entitled to qualified immunity). The relevant issue is not who signs Officer Richardson's paycheck, or what various interests that entity may have. The issue, pursuant to Forrester, Cleavinger, Harlow, and Wyatt, is what type of function he performs.
In the case of Dunn v. Mellon, 174 Pa. 11, 23 A. 210 (1892), the Supreme Court of Pennsylvania ruled that a tenant had no right of action against a private landlord who removed the part of his house occupied by the tenant, because the landlord acted in compliance with an order of the Pittsburgh highway commissioner. Though the landlord was a private citizen, the court ruled that "if . . . the municipal officer would be exempt from individual liability for executing the orders of the city, we know of no reason why the citizen should be subject to such liability." Dunn, 147 Pa. at 18, 23 A. at 210.
Dunn thus stands for the proposition that a private citizen, following state directives for a public purpose, is not liable for tort damages and is instead treated as an officer of the state would be if he or she were engaging in the same public functions. Other cases reach similar conclusions. See Lee Tung v. Burkhart, 59 Or. 194, 116 P. 1066 (1911) (denying conversion claim because "action of defendant regarding the property was merely an assertion of her claim of right to render the municipal officers of Portland assistance"); Klauder v. Cox, 295 Pa. 323, 145 A. 290 (1929) (upholding Dunn in context of holding members of municipal corporations immune from liability); see also Citrano v. Allen Correctional Center, 891 F.Supp 312, 318 (W.D. Louisiana, 1995) (citing Dunn and stating that "there is some evidence that the common law extended the protection of immunity to private citizens acting in accordance with an obligation to the public as a representative of a public official.")
As such, Dunn and its progeny anticipate this Court's functional approach in immunity cases, suggesting that it is important to look not at who employs a state actor or what his various interests may be, but at the sorts of functions in which the person is engaged. In the words of one district court, "it is apparent that the common law determined questions regarding immunities based on a functional approach rather than blindly distinguishing between private parties and governmental employees." Citrano, 891 F. Supp at 318.
Petitioners here -- like the defendants in Dunn and Lee Tung -- are private citizens fulfilling a public mandate: here, the essential public function of operating Tennessee's correctional system, as required by CCA's contract with the State of Tennessee. Once again, what matters is not who signs Officer Richardson's paycheck. What matters for purposes of qualified immunity is what kind of function he is carrying out as a correctional officer in the state of Tennessee.
Bearing in mind "that immunity status is for the benefit of
the public as well as for the individual accused,"
Cleavinger, 474 U.S. at 203, 106 S.Ct. at 501, this Court
has generally followed the "two mutually dependent rationales" for
qualified immunity as a policy that were elucidated in
Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683,
1688 (1974):
(1) the injustice, particularly in the absence of bad faith,
of subjecting to liability an officer who is required, by the
legal obligations of his position, to exercise discretion;
(2) the danger that the threat of such liability would deter
his willingness to execute his office with the decisiveness
and the judgment required by the public good.
Both of these conditions are present in the instant case.
This danger is clearly present in the instant case. Absent qualified immunity, private correctional officers like Daryll Richardson and John Walker would have to think twice before restraining a dangerous inmate, using the force that is sometimes necessary in maintaining order in prison, or the routine keeping of discipline that are necessary commonplaces in prison life. Obviously, prison guards -- private and public -- must be held accountable for gross, malicious, or obvious violations of constitutional rights, and as noted in Procunier, qualified immunity is not available in such situations. See Procunier, 434 U.S. at 562, 98 S.Ct. at 860; Wyatt, 504 U.S. at 166, 112 S.Ct. at 1832. But the nature of the public function with which Petitioners are entrusted requires a degree of discretion in the application of force and restraint. Such discretion is impossible if skittish prison guards must fear lawsuits, "most of them frivolous but vexatious," Forrester, 484 U.S. at 226, 108 S.Ct. at 544, every time they act in their official capacity.
Correctional officers, private or public, face the exact same threat from aggrieved inmates as do judges from aggrieved litigants: Like judges and government officials, correctional officers must make decisions which "will often have adverse effects on other persons." Forrester, 484 U.S. at 223, 108 S.Ct. at 542. Every bruise and scratch suffered by an inmate at the hands of a guard in the often violent world of today's prisons would offer a potential pretext for a "frivolous but vexatious" lawsuit, Forrester, 484 U.S. at 226, 108 S.Ct. at 544. Forcing Petitioners to litigate such claims on the merits would make the courtroom as much a focus of their lives as the jailhouse.
This "flood of litigation" is not a novel prediction; it is a primary reason why qualified immunity exists in the first place. Absent some form of immunity, every frivolous claim filed by an aggrieved inmate would require that inmate's guards to expend vast resources to conduct the "broad-ranging discovery and the deposing of numerous persons, including an official's professional colleagues," needed to establish a good-faith defense. Harlow, 457 U.S. at 817, 102 S.Ct. at 2737. Especially given the fact that correctional officers are like the probation committee members in Cleavinger, who "usually are persons of modest means and, if they are suable and unprotected, perhaps would be disinclined to serve on a discipline committee," Cleavinger, 474 U.S. at 203, 106 S.Ct. at 502, it is hard to imagine how CCA or the State of Tennessee could find anyone willing to put themselves in the double-bind of having to exercise authority and subject to a costly lawsuit every time they did so.
The Court's observation that "[i]nquiries of this kind can be peculiarly disruptive of effective government." Harlow, 457 U.S. at 817, 102 S.Ct. at 2737-38, is even more true for the effective operation of a prison. Correctional officers rely on their ability to exercise authority in accord with their discretion and judgment, authority undermined by the constant threat of a harassing lawsuit. No prison can operate under such conditions.
As such, this case is really about whether private correctional facilities can exist at all. Were this Court to deny qualified immunity to officers similarly situated to Petitioners, it is inconceivable how private prisons could function. Every aggrieved inmate could file a federal claim based on the most trivial of perceived errors, and require their guard to expend time and resources to conduct discovery, marshal evidence from their peers to construct a subjective good-faith defense, and appear in court to defend it at length. See Harlow, 457 U.S. at 817, 102 S.Ct. at 2737. Because such a situation is manifestly incompatible with the just and efficient maintenance of a correctional system, the denial of qualified immunity in this case would effectively remove the policy option of private correctional facilities from state legislatures and the Congress.
The Court has stated its firm disagreement with that proposition in Harlow, where it held that "the subjective element of the good-faith defense frequently has proved incompatible with our admonition in Butz [v. Economou, 438 U.S. 478, 98 S.Ct. 2894 (1978)] that insubstantial claims should not proceed to trial . . . substantial costs attend the litigation of the subjective good faith of government officials." Harlow, 457 U.S. at 815-16, 102 S.Ct. at 2736-37. In particular, "judicial inquiry into subjective motivation [required for ruling on the validity of the good faith defense] may entail broad-ranging discovery and the deposing of numerous persons, including an official's professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government." Harlow, 457 U.S. at 817, 102 S.Ct. at 2737-38. As discussed above, this disruption is even more acute in the case of a correctional facility. Relying on the good faith defense instead of qualified immunity creates exactly the sort of interference with the public role of a state actor that immunity was meant to prevent. On the other hand, "[r]eliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption . . . and permit the resolution of many insubstantial claims on summary judgment." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.
Though it could well exonerate Petitioners in this case, asserting a good faith defense is time consuming, costly, and disruptive of the public service Petitioners are attempting to carry out.
This slippery-slope reasoning is unpersuasive. In the first place, government too has an interest in minimizing costs, yet its employees, situated identically to Petitioners, still enjoy qualified immunity. Indeed, rather than presumptively imputing motives of profiteering on officers situated similarly to Petitioners, "[i]t seems more reasonable to conclude that because [prison workers employed by government contractors and government employed prison workers] perform the same functions and face the same problems on a day to day basis that their subjective attitudes about their jobs are more alike than different." Citrano, 891 F. Supp at 319. Petitioners and their government-employed counterparts share the same job description, mix of motivations, occupational hazards, need to exercise authority, and have the same desire to accomplish their public functions in an efficient manner.
Second, the doctrine of qualified immunity in no way presumes purely public interests on the part of the public officials to which it applies. Qualified immunity requires an objective inquiry into whether a clear constitutional right has been violated -- not a subjective mind-probe of what interests may have motivated the infraction. On the contrary, it is precisely the difficulty of such activities which animates the objective standards of qualified immunity. Harlow, 457 U.S. at 817, 102 S.Ct. at 2737-38. School-board officials, prison guards, and hospital administrators are not presumed to be acting solely in the furtherance of untainted public interests; these questions are beside the point. What matters, in those cases and here, is what public function the parties in question serve, and how the public good of that function would be affected by the imposition of liability. Forrester, 484 U.S. 219 at 224, 108 S.Ct. at 542.
Third, CCA and its employees are continually held accountable to the State of Tennessee, with which it is under contract; that CCA has a financial interest in SCCC's efficient operation is only part of the story. Its overriding interest is in operating a correctional facility that stands up to public scrutiny. Indeed, while a public prison might rationalize borderline actions by its officers on the grounds that the prison cannot be changed, CCA must defend its record in order to keep its job. That CCA is in business for profit hardly means that it will shortsightedly skimp on constitutionally-guaranteed rights to save money (a motive which, in any case, is not alleged in the present case) -- from a purely commercial point of view, such a policy would be penny-wise and pound-foolish. From a jurisprudential point of view, imputing financial shortsightedness to CCA as a rationale for denying Officers Richardson and Walker immunity from liability under 1983 is a stretch of the imagination.
Most importantly, qualified immunity is not an absolute bar to litigation. Respondents must still show that their conduct "did not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wyatt, 504 U.S. at 166, 112 S.Ct. at 1832 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). This "wholly objective standard," id., is applicable without the need for the intrusive, costly, and disruptive discovery process associate with the subjective criteria of evaluating the good faith defense, yet still denies immunity to any state actor or official in clear violation of an established constitutional right. Whatever its motive, blatantly unconstitutional behavior would not be immune to judicial scrutiny, whether practiced by private prison guards or their publicly-employed counterparts.
Petitioners Richardson and Walker are correctional officers, whose paycheck comes from CCA but who work for the people of Tennessee. For these and the foregoing reasons, the judgment below should be REVERSED.
_________________________
Jay Michaelson
Attorney for
Petitioners
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