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Unprotected: Private Prison Personnel and Civil Liability
By Jennifer Hulvat, J.D., Full Time Faculty, Undergraduate Criminal Justice, School of Social and Behavioral Sciences
Published: 11/25/2013

Prison e The popularity of privatization in the government sector is not without its drawbacks. In a specific area, the privatizing of prisons throughout the country has left a gaping hole in the immunity protections traditionally extended to prison guards and other governmental personnel. The goal of increasing efficiency and reducing operating costs by outsourcing the public function of criminal punishment has left many questions about liability for claims of civil rights violations by inmates. As a result of some rather circumspect reasoning by our Supreme Court, as recently as April of 2012, it appears that prison guards employed by private prison entities, who are outsourced by state governments, do not enjoy qualified immunity protection against civil rights claims by inmates of that very prison. They are, essentially, exposed.

Clearly, governmental sentiment around the country is that private prisons can undertake the public correctional goals of punishment, deterrence, rehabilitation and incapacitation to the same extent as those institutions administered and funded by the government itself. Query, then, why those who work for those private companies, undertaking this public function, would not enjoy the same qualified immunity protection as their counterparts in purely state and federally funded facilities?

Historically, Title 42 U.S.C. §1983 has provided a procedural mechanism for state and local prison inmates claiming violations of their civil rights to sue those acting “under color of law”. Qualified immunity, however, bars §1983 suits against certain state, local and federal officials unless the actor reasonably believes that his conduct violates a clearly established constitutional right. Certainly, claims suggesting deprivation of rights rooted in the Fourth Amendment, the Eighth Amendment and the 14th Amendment are ripe in the prison context.

Proponents of the privatized prison movement suggest that private prison personnel who contract to perform correctional services should enjoy the same immunity protection as their governmental counterparts, as they are operating as “state actors”. Because the function undertaken benefits the state, the suggestion that there be a “level playing field” for purposes of civil rights litigation, and protection, is a compelling argument.

We need only look as far as the most recent Supreme Court opinion on the matter to quickly conclude that prison guards in private prisons are, for all practical purposes, exposed and vulnerable to liability for civil rights violations. The 1997 Supreme Court case of Richardson v. McKnight established that prison guards working for a private prison company that contracted with the state could not assert the defense of qualified immunity against civil rights allegations. There, two inmates in a privatized Tennessee prison alleged that prison guards subjected them to severe physical restraints, thereby depriving them a constitutionally protected right. The Court believed that “history does not reveal a ‘firmly rooted’ tradition of immunity applicable to privately employed prison guards”. Most notably, the Court found no reason to extend this critical protection to private contracted prison guards. The key factor in the Courts decision was that the person being accused of the constitutional deprivation was not hired directly by the government, rather “a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, underak[ing] that task for the profit and potentially in competition with other firms”. The decision, it appeared, was dispositive, and devastating, for prison personnel working at the behest, and in the best interests, of a contracted governmental employer.

In April of 2012, however, the Supreme Court decided Filarksy v. Delia, and once again considered the question of liability protection where the government, essentially, “outsources” to a private contractor. Contrary to the rule enounced in Richardson, qualified immunity protection was found to extend to a private lawyer hired by the government to conduct an internal affairs investigation, a traditionally “public” function. The Court chose to view the issue much more narrowly, asking the question: Is a lawyer hired by the government prohibited from enjoying immunity just because he is hired on a non-permanent or part-time basis? In a somewhat convoluted opinion, the Court answered that question in the negative, emphasizing that its employees should not be “distracted” by the threat of litigation against nonpublic employees sued under §1983.

How, then, might a private prison corporation protect itself from the inevitable allegations of civil rights violations inherent in a correctional situation? Certainly, prisoners are held in these facilities, not at the behest of prison administration and personnel, but pursuant to sentences imposed by the courts for violating our government’s criminal laws. Prison is a complete denial of liberty, imposed for that very purpose, in a completely punitive environment. It is a hotbed of civil rights litigation. Should the employment arrangement of those carrying out the administration of those criminal sentences mean that traditional immunity protections are not applicable? It appears that the nature of the employment relationship, in the eyes of our Courts, outweighs the nature and purpose of the work performed.

As government entities continue to grapple with shrinking budgets and burgeoning inmate populations, this shift to privatized prisons will continue to make financial sense. One would imagine that the continued efficacy of such an arrangement lies in its financial soundness. Governmental entities which fund and administer their own correctional facilities, and those who are employed there, have always enjoyed qualified immunity protection from claims of civil rights violations where applicable. Why, then, should those employees working for a private company, performing the exact same duties, in the exact same environment, be stripped of that protection?

The Court in Filarsky was very careful not to overrule Richardson, finding that the employment relationship of a privately retained “one” is quite different than the position and relationship of “many” working for the entity hired by the government. For the time being, then, private prison guards facing civil rights allegations remain exposed and susceptible to liability. That type of reasoning truly begs the question as to why anyone would endeavor to secure employment as a private prison guard to begin with.

Since 2009, attorney Jennifer Hulvat, from the Chicago area, has been a full-time faculty member at Kaplan University, where she teaches law-based courses in Criminal Justice. Before that, she served Kaplan University as an academic department chair who supervised the Law and Fraud cohort of adjunct instructors. Additionally, she coordinated and interviewed undergraduate internship candidates and became a liaison with law-enforcement agencies on a national level. She joined Kaplan as an adjunct instructor in May of 2005.

Ms. Hulvat is a 23-year practicing lawyer, holding law licenses in both Illinois and Florida. She has been a prosecutor in Miami, Florida as well as in the Chicago area, and also spent several years representing the criminally accused. She was a staff attorney for Chicago’s CLEAR Initiative Project, an aggressive, non-state-funded project to review, edit and align the Criminal Code and the Unified Code of Corrections in Illinois.


  1. stein919 on 11/25/2013:

    The primary distinction the Supreme Court drew in Richardson v. McKnight between public and private prison guards is that the former are motivated by providing a public service while the latter are motivated by profit. The concept of qualified immunity (QI) is designed to ensure that public servants, working for the public good, are not reluctant to carry out their duties due to fear of being held liable for conduct that they were unaware may have constituted a rights violation (this is a very abbreviated explanation, of course). There is no counterpart in the private sector, where companies and their employees are motivated by profit and contract with government agencies not for the public good or to provide a public service, per se, but rather to make money. Thus there is no extension of QI to private contractors even when they act under color of state law. The author of this piece seems to lament the fact that QI does not extend to private prison contractors. Consider, though, that QI is simply one of many defenses, with many others available to private prison companies and their employees. Absent qualified immunity they can still raise other defenses, move for summary judgment or take the case to trial in an effort to show that no rights violations occurred. The private prison industry has been operating without QI since the Richardson ruling and it doesn't seem to have held them back in any way, either in terms of their business operations or litigation. In short, seeking to apply QI to private prison contractors appears to be looking for a solution to a problem that does not exist. Further, and most obviously, if private prison companies do not want to deal with the issue of lack of QI, then their employees should, simply, not violate inmates' constitutional rights. That should solve the problem quite nicely -- along the same lines that many corrections officials believe that if prisoners don't like being in prison, they shouldn't commit crimes. Disclosure: In 1996, while incarcerated at a privately-operated prison, I was in touch with plaintiffs' counsel in Richardson v. McKnight and provided them with a legal argument and documentation that was raised in their Supreme Court brief -- i.e., that the profit motivation of CCA, in that case, flowed to its employees because the company's workers participated in an employee stock ownership plan (ESOP), which tied the company's stock performance to their ability to profit from same. Alex Friedmann Managing Editor, Prison Legal News www.prisonlegalnews.org

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