Richardson v. McKnight: what does the future of qualified immunity hold for nongovernmental employees?
Richardson v. McKnight, 117 S.Ct. 2100 (1997)
McKnight is a prisoner in Tennessee's South Central Correctional Center, a facility run by Corrections Corporation of America. The South Central Correctional Center is apparently a completely privatized facility, employing prison personnel outside the state employment system.
McKnight brought federal constitutional tort action against two guards, Daryl Richardson and John Walker, claiming that the guards had placed him in extremely tight physical restraints" (Richardson v. McKnight, 2102) that deprived him of a constitutionally protected right. The prison guards sought to have the case against them dismissed, claiming that they were protected by qualified immunity because of their position. The district court denied the existence of qualified immunity due to the fact that the guards were employed by a private company rather than the state. The court of appeals affirmed that decision. The Supreme Court affirmed the court of appeals, and returned the case to the district court for further proceedings.
The majority's analysis rested in part on the case of Wyatt v. Cole, 504 U.S. 158 (1992), which assessed whether private defendants who had been charged with a violation of constitutional rights were entitled to assert qualified immunity from suit. The most salient points of the Wyatt decision for the purpose of the majority in Richardson v. McKnight included the following" (1) constitutional tort actions are used to prevent governmental actors from using the power of government to harm citizens; (2) there are differences between qualified immunity and other defenses; and (3) qualified immunity is a protection against suit that arises out of history and public policy concerns. Finally, the majority noted that Wyatt does not answer all questions about the assertion of qualified Immunity by private citizens, leaving open die question raised in Richardson: Can privately employed prison guards, working in a detention facility that houses prisoners of the state, assert qualified immunity from the prosecution of a constitutional tort claim made by a prisoner?
As noted earlier, the majority's decision rested on an analysis of both history and public policy concerns. The majority noted that there is no history of granting immunity to privately employed prison guards. Indeed, the majority found evidence that the opposite is true.
The majority cited the public policy reasons for granting qualified immunity from suit as "protecting the public from unwarranted timidity on the part of public officials by, for example, `encouraging the vigorous exercise of official authority [by contributing to] principled and fearless decision-making' and by responding to the concern that threatened liability would...`dampen the ardor of all but the most resolute, or the most irresponsible'... public officials" (Richardson v. McKnight, 2105-2106, citations omitted).
Qualified immunity provides government employees the ability to carry out the tasks of government without fear of litigation as a method of harassment.
The two prison guards asserted in the district court that they should be allowed qualified immunity because they serve the same function as state-employed prison guards. The majority disagreed, stating that the function served by the person asserting qualified immunity is not the basis for the application of qualified immunity. Instead, the majority looked for an alternative source of protection for the private prison guards and found it in the market pressures imposed by the private sector. The majority finds a market force that corresponds to each element mentioned above. The majority concluded, therefore, that neither history nor public policy dictates that private prison guards should be given qualified immunity from suit, and returned the case to the district court to be heard, as the question of qualified immunity was raised and ruled on before the case proceeded to trial.
The majority added three caveats to its ruling. First, the majority noted that the liability of the two prison guards had not been addressed, and should not be presumed to exist from the decision. Second, the majority was careful to note the narrow reach of this decision. They noted that the decision does not "involve a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision" (Richardson v. McKnight, 2108). Finally, the majority noted that the guards may have available to them a goodfaith defense.
The dissent, as is often the case, accepted the facts as given by the majority but differed on the interpretation of the underlying principles. In this case, the dissent differed both to the history and the public policy grounds for advancing the granting of qualified immunity. The dissent found instances in the history of the United States where private prison guards were granted some immunity from suit. In that history, and in the general history of qualified immunity decisions, the dissent found support for the use of die function test, where the focus of the inquiry was not the sector of the economy in which the employee was located but rather the Eviction the employee was fulfilling when taking the action that was the subject of the suit. Also, the dissent placed an entirely different emphasis on the role of the market in creating forces that will influence guards. Where the majority asserted that market forces will ensure that guards act with vigor so that contracts will be continued, the dissent believed that guards will refrain from action at times to prevent complaints and costly lawsuits. This was the dissent's largest point of disagreement with the majority's market analysis, although not the only one. The other disputes relating to the role of market forces were largely confined to the assumptions regarding market behavior made by the majority that are contradictory to the perspective adopted by the dissent.
Most importantly, the dissent pointed out that the basis of the distinction made by the majority is obscure. They ask, "[I]s it privity of contract that separates the two categories...? Or is it rather employee versus independent contractor...? Or is perhaps state supervision alone... enough to confer immunity? Or is it...the formal designation of the guards, or perhaps of the guards' employer, as a `state instrumentality'...?" (Richardson v. Mcknight 2112).
Impact of Richardson v. McKnight on public Administration
Before beginning a discussion of the implications of this case for public administrators, it is important to note that Richardson is unique for several reasons. First, the decision was a 5-4 decision, with Justices Breyer, Stevens, O'Connor, Souter, and Ginsburg voting to affirm the decision of the appellate court and justices Scalia, Kennedy, Thomas, and Chief Justice Rehnquist voting to reverse. It is dear that this area may be subject to review in the near future, with the possibility of a different ruling due to the closeness of the vote. Second, both the majority and dissenting opinions made dear that die decision and dissent relied on history and public policy concerns to reach their conclusions. While It is not surprising that the Court would rely on history and public policy concerns, such an open reliance makes possible future argumentation on the issues raised. One advantage of the use of legal precedents in legal decision making is that changes in the interpretation of what prior decisions mean are limited if not foreclosed. Reliance on history and public policy concerns is less certain than reliance on judicial precedents.
It should be easy to see that this case represents the next step in the development of both the law that governs relationships between independent contractors and government and the law that governs the application of qualified immunity. Yet, the questions posed by the dissent at the end of their opinion must be asked by all public administrators. What does it mean when the majority states that this decision is to be narrowly construed? If the employees of the private sector company that picks up the garbage are sued, can they assert qualified immunity from suit? What about the road repair crew that works while under the supervision of personnel from die Department of Public Works? As the dissent asked, what separates the independent contractor from a government employee Can government employers issue requests for proposals (RFPs) so that the independent contractor is more or less independent? What would the ramifications of these changes be?
Fundamental to the majority's opinion are the assumptions regarding the role of the market in preventing abuses and promoting efficient operation of privately run facilities. Yet it may be noted that other privately run prisons have faced allegations of abusive employees. Is there something about market forces that the majority of the Supreme Court is riot recognizing? Should public managers be charged with supervising both the public sector responsibilities and the private sector forces that are put in motion when privatization is considered? What would such supervision do in creating government oversight sufficient to ensure the defense of qualified immunity to independent contractors?
As is often the case, the implications of Supreme Court decisions for public administrators seem to be unlimited. For every question posed, four or five may be anticipated. While privatization is a force to be reckoned with in public management, it is increasingly necessary to address the secondary problems that arise from the use of prime companies to provide services once thought to be primarily governmental. It is possible that as the courts develop the law that governs government-independent contractor relationships and the extent to which independent contractors must remain under the management of government to avoid additional liability, a different set of answers will be developed to the question of who is to provide public services. As this process unfolds, and the standing of privatized services and service providers changes, the fundamental responsibility of government to the citizens that it serves must remain at the forefront of the public administrator's mind. These issues not only have the potential to affect the employees of the private firm, but they also have the potential to affect every prisoner housed in a privatized prison and every citizen who relies on government to provide the services for which taxes are paid. Public administrators and the courts must be aware of the fact that vulnerable populations of citizens in direct contact with privatized services will be the ones most likely to suffer until the questions regarding the scantling of private sector workers currently contracting with the government are settled.
Koenig, Heidi (1997). "Me Defense of Qualified Immunity in Employee Termination Suits: Four Cases from the Federal Courts of Appeal." Public Administration Review 57(3): 187-189)
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|Publication:||Public Administration Review|
|Date:||Jan 1, 1998|
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