RESOLVING THE PROBLEM OF QUALIFIED IMMUNITY FOR PRIVATE DEFENDANTS IN SECTION 1983 AND BIVENS DAMAGE SUITS

• NCJ Number: 142017
• Journal: Louisiana Law Review Volume: 53 Issue: 2 Dated: (November 1992) Pages: 449- 493
• Author(s): C W Thomas
• Date Published: 1992
• Length: 45 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: Earlier version of paper presented at the Southern Conference on Corrections, 1992, Tallahassee, Florida

Annotation

Concerned primarily with the implications for correctional privatization, this legal analysis forecasts how Federal courts will ultimately resolve questions regarding the availability of a qualified immunity from civil rights damage lawsuits to private employees under Section 1983 of the Civil Rights Act.

Abstract

Based on a review of the qualified immunity doctrine and its application to cases involving private defendants in Section 1983 damage lawsuits, the analysis reveals that Federal courts are in sharp disagreement about whether private defendants can assert a qualified immunity. To be sure, many of the cases reviewed were lawsuits involving creditor-debtor relationships and thus may not be of great value to those concerned with the legal implications of privatization. However, cases involving the pursuit of commercial interests by private parties whose conduct meets the State action requirement solely because they received significant assistance from State or Federal officials are easily distinguished from those involving the pursuit of public interest by private parties whose contracts oblige them to work on behalf of public agencies. The rationale of courts that have declined to permit private defendants to assert a qualified immunity from damage lawsuits relies heavily on a combination of historical and policy considerations. The historical focus, which is especially apparent in Section 1983 cases, emphasizes immunities that were available to public and private parties more than 100 years ago. The policy focus emphasizes the fact that disallowing a qualified immunity to private defendants does not interfere with their ability to serve the public interest because their conduct is aimed at serving a purely private rather than a public interest. The validity of historical and policy considerations in the context of correctional privatization is questioned. 181 footnotes