It is a well-known fact that state officers facing federal claims in their individual capacities may be protected from liability by the defense of qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 817–18 (1982). The idea behind qualified immunity is that lawsuits against public actors carry an immense societal cost, including the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Id. at 814. As a result, government officials performing discretionary functions are generally shielded from liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. at 818.

What happens, then, when the state contracts with the private sector for a firm to perform a traditional governmental act? A classic example of this arises in the context of private prison companies. There, the state contracts with a private prison management firm which then undertakes a governmental function: housing, feeding, clothing, and providing security to state prisoners. In doing so, the employees of that company are exposed to liability under 42 U.S.C. § 1983. The question is, are these private employees entitled to qualified immunity like their public counterparts?

The Supreme Court of the United States weighed in on this issue twenty-seven years ago in Richardson v. McKnight. 521 U.S. 399 (1997). In Richardson, a divided court held that private prison guards were not entitled to qualified immunity in large part because, according to the court, prison administration has never been an exclusively state function. 521 U.S. at 412. A four-justice dissent, authored by Justice Scalia and joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Thomas, disagreed. As Justice Scalia put it: “Today the Court declares that [qualified immunity] is unavailable to employees of private prison management firms, who perform the same duties as state-employed correctional officials, who exercise the most palpable form of state police power, and who may be sued for acting ‘under color of law.’ This holding is supported neither by common-law tradition nor public policy, and contradicts our settled practice of determining § 1983 immunity on the basis of the public function being performed.” Id. at 414 (Scalia, J., dissenting).

Richardson compels a curious result. Employees of privately run prison facilities may be sued under § 1983 because those prisons perform a function that courts deem the “exclusive prerogative of the state.” See Ancata v. Prison Health Servs., 769 F.2d 700, 703 (11th Cir. 1985). Those same employees, however, may not claim qualified immunity because, according to the Richardson Court, prison administration has never been an exclusively state function.

The picture becomes even more muddled when considering privately run federal prison facilities. Section 1983 does not provide a cause of action against federal employees. Instead, federal employees may sometimes be sued by virtue of the liability established by Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Against this backdrop, at least two courts have held that employees of privately run federal prison facilities are not subject to liability under Bivens. Holly v. Scott, 434 F.3d 287, 294 (4th Cir. 2006); Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1108 (10th Cir. 2005). The Supreme Court of the United States has agreed. Minneci v. Pollard, 565 U.S. 118 (2012). In reaching its decision in Holly, the Fourth Circuit noted that: “[s]ince qualified immunity under Bivens and § 1983 are identical, were we to find [the officers] potentially liable, the holding of Richardson would preclude us from granting them a qualified immunity defense. This would put prisoners in private facilities in a more favorable position than their counterparts in federally operated prisons. . . . In the absence of statutory authority, we are reluctant to create an anomaly whereby private defendants face greater constitutional liability than public officials.” 434 F.3d at 294.

But this anomaly already pervades the § 1983 liability of state private prison employees. Prisoners held in a state private prison facility are in a more favorable position than their counterparts in a state-run facility or in federal facilities because he or she may file under § 1983 and not be concerned about the defense of qualified immunity. This result has caused lower courts throughout the country to question Richardson and suggest that it is time for courts to revisit the liability of employees at state private prison facilities. See, e.g., Schneider v. Donald, No. 3:05-CV-158, 2006 WL 1344587, at *8 (S.D. Ga. May 12, 2006). This is especially true in the wake of a subsequent Supreme Court case, Filarsky v. Delia, 566 U.S. 377 (2012), which further muddied the water as to when qualified immunity is available to private actors. See, e.g., Saenz v. G4S Secure Solutions (USA), Inc., 224 F. Supp. 3d 477, 481–82 (W.D. Tex. 2016) (characterizing the state of the law regarding the applicability of qualified immunity to private actors as “anything but clear at this point.”).

In short, employees of privately run state prison facilities are not currently entitled to qualified immunity. Conversely, employees of privately run federal prison facilities are entitled to qualified immunity. But this is an area of law that is in flux and given the groundswell of criticism from the lower courts of the Richardson decision and the disparate liability for private actors performing the same duties as public actors, it is an area of law that is ripe for potential changes.