chevron-down Created with Sketch Beta.

Public Contract Law Journal

Public Contract Law Journal Vol. 51, No. 2

A Functionalist Approach Toward Qualified Immunity for Government Contractors

Junhao Chen


  • Discusses the history of qualified immunity for government officials.
  • Examines the varying approaches to qualified immunity in cases decided by different federal circuit courts.
  • Presents a possible approach to qualified immunity for government contractors.
A Functionalist Approach Toward Qualified Immunity for Government Contractors
RichLegg via Getty Images

Jump to:


This Note will explore the circuit split over granting qualified immunity for government contractors. Before analyzing the three sides of the circuit split, this Note will discuss the history of qualified immunity and the evolution of this protection for government employees and government contractors. The Note will then discuss the Fifth, Sixth, and Seventh Circuits’ contrasting views concerning the circumstances under which government contractors can claim qualified immunity. Following the analysis of the circuit split, this Note proposes a statutory solution to the problem of contractor qualified immunity and demonstrates that this proposal ensures both horizontal harmony by treating private contractors and state employees the same, and vertical harmony by eliminating circuit splits.

I. Introduction

“We must restore the legislative intent of a 149-year-old landmark civil rights law, which gave victims of police brutality the right to their day in court through a civil action,” said Senator Edward Markey in a statement after protests swirled around the country in reaction to police brutality. The civil rights law to which Senator Markey referred is the Ku Klux Act of 1871. Congress passed the Ku Klux Act in the Reconstruction Era because states refused to recognize the equal rights guaranteed to Americans under the Fourteenth Amendment of the U.S. Constitution. Section 1983 of the Ku Klux Act (Section 1983) provides a remedy for individuals whose federal, statutory, or constitutional rights have been violated by officials acting under color of state law. Beginning in the 1960s, however, the Warren Court crafted a legal defense for government officials that limited the effectiveness of Section 1983: qualified immunity. Qualified immunity shields government officials from being held personally liable when they commit certain offenses that would violate plaintiffs’ rights if committed in other contexts.

In an era marked by political divisions, disagreement over and disapproval of this doctrine exists across the political spectrum. In 2020 alone, however, the Supreme Court denied eight petitions of certiorari seeking review of qualified immunity cases, although Justice Thomas has signaled his willingness to revisit this judicial construction. The need for revision of the qualified immunity doctrine is urgent as communities nationwide seek accountability for police violence, particularly where victims are individuals of color. Currently, armed with qualified immunity, officers are provided a get-out-of-court-free card when they violate people’s rights.

While Supreme Court doctrine provides qualified immunity to police officers, among other government officials, such protections do not extend to private contractors who work as police officers or prison guards. In 1995, the Supreme Court held in Richardson v. McKnight that prison guards employed by a private firm were not entitled to qualified immunity from suits brought by prisoners charging a Section 1983 violation. Richardson raised a series of questions. First, scholars have debated whether Justice Stephen Breyer’s policy-ridden majority opinion can withstand close legal and textual analyses. Justice Breyer’s economics-driven approach emphasized that the competitive market system would discipline private contractors’ behavior. Justice Scalia, however, argued in his dissent that if private contractors are functionally no different from state employees, they should have the same legal protections as comparable state employees.

In 2012, fifteen years after Richardson, the Supreme Court revisited the issue of qualified immunity. In Filarsky v. Delia, the Supreme Court established that a private attorney, temporarily acting on behalf of the government, should be afforded qualified immunity protection. Filarsky thusaffirmed the legality of qualified immunity: an official will not be liable even if he or she violated the Constitution, unless prior cases have “clearly established” that his or her conduct was unconstitutional. Filarsky stressed that it did not overrule Richardson because the holding in Richardson was fact-specific. The decision in Filarsky, however,posed new questions for the lower courts.

Filarsky did not impose a rigid date limit that courts should adhere to in looking at prior case law to determine whether the officials should receive qualified immunity. The holding in Filarsky instead required a different inquiry: would a person in the same position as the party asserting qualified immunity have been immune from liability under the common law of the late nineteenth century? Applying this standard, the Sixth Circuit in McCullum v. Tepe held that, following Filarsky, it would look at cases from the late nineteenth century, a period contemporaneous with the passage of the Ku Klux Act, when evaluating questions of qualified immunity.

The Seventh Circuit later noted in Meadows v. Rockford Housing Authority that the Court from Richardson had resolved the “qualified ‘immunity question narrowly, in the context in which it arose’—[a context] ‘in which a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertakes that task for profit and potentially in competition with other firms.’” This decision placed more emphasis on policy justifications behind both Richardson and Filarsky.

Finally, in Perniciaro v. Lea, the Fifth Circuit opted not to look at any of the relevant cases discussing immunity in the nineteenth century, even though, as relevant to the facts of the case, historical findings from other circuits indicated that qualified immunity protections did not exist for privately employed doctors. The Fifth Circuit based its decisions on the purposes of qualified immunity that the Supreme Court outlined in Richardson. If qualified immunity is a judicial construction and betrays the plain meaning of Section 1983 and the Act, then the Fifth Circuit’s decision is another layer of judicial construction that extends qualified immunity to officials who would not enjoy its protections in the nineteenth century.

This Note argues that the Supreme Court should adopt a functionalist approach toward the liability of private contractors, particularly those who are hired to perform state functions. Since the prison guards employed by a private firm have the same function as the guards employed by the state, for example, the former should enjoy the same qualified immunity as the latter. This approach is preferential to the current method because it parallels recent discussion of abolishment of qualified immunity: if qualified immunity is abrogated for state employees, then private contractors who perform the same tasks as state employees should not be accorded the same privilege. Clarifying the application of qualified immunity to private contractors would also mitigate the inconsistency that currently ensnares the lower courts. This kind of functionalist approach would create both horizontal harmony by treating private contractors and state employees similarly and vertical harmony by eliminating circuit splits.

Part II of this Note describes the history of qualified immunity, tracing the creation and evolution of qualified immunity first for government employees and then for government contractors. Part III analyzes decisions from different circuits interpreting key modern cases (Richardson and Filarsky) differently, thus creating circuit splits. Part IV then argues that the functionalist approach should become the rule when a court decides qualified immunity cases for government contractors and proposes statutory language to guide judicial decisions.

II. History of Qualified Immunity

This Part introduces the legislative history of Section 1983 then lays out how the Supreme Court invented qualified immunity as a defense to Section 1983. It frames the debate concerning whether the Court should adopt the functionalist approach toward Section 1983 liability for government contractors. This Part concludes by discussing current case law regarding Section 1983 liability for government contractors.

A. Enactment of Section 1983

The statute codified at 42 U.S.C § 1983 (colloquially and herein referred to as “Section 1983”) provides a remedy for those whose federal statutory or constitutional rights have been violated by officials acting under color of state law. Section 1983 was first enacted during the Reconstruction Era because Southern states were reluctant to enforce the Fourteenth Amendment. President Ulysses S. Grant hoped Congress could pass legislation requiring state officials to enforce the rights guaranteed in the Fourteenth Amendment. Now codified in the U.S. Code, the legislation ultimately passed provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

The text of Section 1983 does not expressly provide for a defense of qualified immunity. On the contrary, a plain reading of the Section makes it clear that it provides a cause of action for affected individuals to bring suits against officials for violations of their statutory and constitutional rights. In 1967, however, the Warren Court in Pierson v. Ray held that, in enacting Section 1983, Congress intended to provide a defense to a Section 1983 action.

B. First Attempts at Creating Qualified Immunity (Pierson v. Ray)

In Pierson, a group of Caucasian and African American clergymen were arrested by policemen employed by the City of Jackson, Mississippi, because the clergymen attempted to use segregated facilities and refused to leave when the police told them to do so. They were arrested and convicted. The clergymen subsequently sued both the officers for violating their rights under Section 1983 and the judge for handing down an unconstitutional decision. Ruling in favor of the policemen and the judge, Justice Earl Warren suggested that defense of good faith and probable cause was “available to the officers in the common-law action . . . under [Section] 1983.” Through this decision, the judicially constructed defense of “qualified immunity” was born. It was a natural extension of a common law good faith defense to tort liability.

Justice Warren wrote that, absent qualified immunity, a police officer would have to choose between “being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.” However, Justice Douglas believed that the majority erred in affording judges with absolute immunity under Section 1983 lawsuits. His use of legislative history of the section shed light on the legislative purpose when the Ku Klux Klan Act, including Section 1983, was enacted.

Justice Douglas applied a plain reading of the statute. Citing legislative history, Justice Douglas believed that the congressional purpose was clear: every person means every person.The statute was enacted to correct wrongs and provide remedies for violations of constitutional and statutory rights when “a condition of lawlessness existed in certain of the States, under which people were being denied their civil rights.” Therefore, both the plain meaning of the Section and purpose of the Act did not grant immunity for judges.

Justice Douglas also responded to concerns that his approach would entail unwelcome policy results. For example, the majority argued that his approach would result in chilling effects on judges who might worry about the potential for litigation arising from their decisions. Justice Douglas responded that there should be no absolute immunity for a judge when he or she was “guilty of using his [or her] power to vent his [or her] spleen upon others, or for any personal motive not connected with the public good.” One can apply the same logic to the qualified immunity of police officers. There should be no qualified immunity for police officers who act out of malice upon others or whose actions are not connected to promoting the public good.

Finally, Justice Douglas compared the exemption from judicial scrutiny to the idea that “the King can do no wrong.” A judge makes an informed decision when he adjudicates a case. However, exemption from judicial scrutiny in some ways elevates a judge to a “King” who can make no mistakes. Justice Douglas suggested there is a difference between imposing liabilities for honest but mistaken decisions, and imposing liabilities for intentionally depriving a party of his or her constitutional rights—the latter being the focus of his argument. Thus, Justice Douglas argued that no absolute immunity should be created. In applying this same logic to present concerns, this argument can be extended to suggest that qualified immunity should not be extended to police officers who willfully violate individuals’ constitutional rights.

C. The Traditional Functional Approach (Harlow v. Fitzgerald)

Harlow v. Fitzgerald, decided by the Supreme Court in 1982, illuminates another crucial debate regarding Section 1983: the majority and the dissent disagree on whether the Court should adopt a functional approach toward liability when determining the extent of immunity afforded to individuals.

The circumstances underlying this case began when Ernest Fitzgerald discovered two billion dollars in cost overruns that had been concealed by officials at the Pentagon. Fitzgerald testified to these findings before Congress, but was fired and blacklisted from assuming any significant role in the government. The release of Watergate tapes revealed that President Richard Nixon boasted that he was instrumental in firing Fitzgerald. In addition to Nixon v. Fitzgerald, where the plaintiff sued the former President, Fitzgerald brought the suit in Harlow against presidential aides for violating his constitutional and statutory rights by conspiring with the President to retaliate against him. The presidential aides relied on Gravel v. United States to support their arguments that they, like the president, should receive absolute immunity from liability. Gravel held that privileges from the Speech and Debate Clause, which protect the legislative branch from judicial review, would derivatively be applicable to congressional legislative aides because members of Congress cannot fulfill their duties without the help of aides.

The majority in Harlow rejected this argument and held that presidential aides were only entitled to qualified immunity. The Court admitted that, in general, previous cases followed a “functional” approach toward immunity. In Harlow, however, the Court declined to extend this logic to absolute immunity for presidential aides because the absolute “derivative” immunity approach cannot be “reconciled with the [traditional] ‘functional’ approach” that the Court had previously adopted. In other words, the Court rejected the absolute derivate approach and instead adopted a functional approach.

In his dissent, Justice Burger voiced his misgivings about the Court’s reasoning and its inconsistency with the Gravel decision. In Gravel, the Court extended absolute immunity to legislative aides due to their role in legislation. As in Gravel, where the Court determined that congressional members cannot perform their functions without the help of aides, the President similarly cannot perform his function without the help of aides and assistants. This result led to inconsistency that, on the one hand, it was constitutional to extend absolute immunity to congressional aides, but that, on the other hand, it was unconstitutional to grant absolute immunity to presidential aides, who were instead granted qualified immunity. Despite presidential and congressional aides performing similar functions, the Court nonetheless declined to grant the presidential aides absolute immunity.

Justice Burger lamented that this result would diminish and frustrate the function of the presidency. He cautioned that presidential aides’ work would be negatively impacted by the looming threat of liability for their conduct during the performance of their duties. Ultimately, Justice Burger argued that the question of immunity should depend on the function performed by the person and the relationship of that person to his or her superior.

D. Qualified Immunity for Private Individuals (Wyatt and Richardson)

Wyatt v. Cole, decided in 1992, was the first Supreme Court case addressing whether private individuals can receive qualified immunity. In Wyatt, “Bill Cole sought to dissolve his partnership with Howard Wyatt.” When the parties could not reach an agreement to dissolve their partnership, Cole hired an attorney to file a complaint in replevin against Wyatt. A state court granted the request and ordered police officers to seize personal properties from Wyatt. At the post-seizure hearing, “the court dismissed Cole’s complaint . . . and the ordered the property [be] returned to Wyatt.” When Cole refused to turn over the property, Wyatt challenged the constitutionality of the statute allowing individuals to obtain a court order to seize property if one party posted bond, swore he was entitled to the property, and the other party unlawfully possessed the property. After the lower court ruled that the statute was unconstitutional, Wyatt sought damages from Cole and his attorneys for violating his constitutional rights by unlawfully depriving him of his property. The district court found that Cole and his attorneys were entitled to qualified immunity because they acted under color of state law within the meaning of Section 1983.

When the case reached the Supreme Court, the Court rejected the expansion of qualified immunity to private individuals. The Court admitted that Section 1983 created tort liability that “on its face admits of no immunities.” However, the Court advanced three reasons for its decision to create immunities for specific categories of persons. First, the Court would grant absolute or qualified immunities if common law traditions afforded similar immunities in the past. Second, the Court inferred from congressional silence on the topic that Congress would not abolish such a defense because, if they had intended to abolish the defense, this would have been clarified in the Act. Third, the Court looked at Section 1983’s legislative history or purpose to determine whether under such instances qualified immunity should be granted.

Justice O’Connor, in her majority opinion, wrote that “the qualified immunity recognized in Harlow acts to safeguard [the] government, and thereby to protect the public at large, not to benefit its agents. These rationales are not transferable to private parties.” In the facts underlying Wyatt, private parties did not exercise the same discretion as government officials, nor were they principally concerned with the public good in undertaking the actions at issue. Therefore, the policy justification behind qualified immunity was not applicable the private parties. The Court nevertheless suggested that, although it did not recognize qualified immunity for the private party in this case, a private party “could be entitled to an affirmative defense based on good faith and/or probable cause.”

In his concurrence, Justice Kennedy expressed skepticism regarding the court of appeals’ heavy reliance on policy considerations. Justice Rehnquist furthered this line of attack in his dissent by suggesting that Section 1983’s jurisprudence went astray when judicial decisions relied heavily on such policy considerations. Moreover, he offered two reasons for rejecting the majority’s position. First, the majority’s decision relied unnecessarily and fastidiously on nomenclature because it suggested that the private party could still use a good faith defense even though he did not enjoy qualified immunity. Since the Court previously recognized the good faith defense for official conduct, the Supreme Court admitted that it usually cast good faith defense as a form of qualified immunity which obliterated the unnecessary distinction between the two. Therefore, he argued, the Court had fabricated an artificial distinction between a common-law good faith defense and qualified immunity. Second, Justice Rehnquist found the Court’s decision absurd because both state officials and private parties were being sued under the same statute. Nevertheless, because of their status as government officials, state officials enjoyed qualified immunity from lawsuits, while the private parties were not similarly immune. Following the absurd logic of Section 1983’s jurisprudence, the Court was subjecting private parties to greater risk than their public counterparts. Therefore, Justice Rehnquist further emphasized that a functional approach toward qualified immunity would be better than the majority’s position.

Five years later, another important case concerning the application of qualified immunity to private parties, Richardson v. McKnight, was tried before the Court. Ronnie Lee McKnight, a prisoner at Tennessee’s South Central Correctional Center (SCCC), sued Darryl Richardson and John Walker, privately employed prison guards, for violating his constitutional rights. He alleged that they physically abused him while he was in prison. Richardson and Walker subsequently invoked Section 1983 qualified immunity.

The Court found four aspects of Wyatt v. Cole relevant to the case here. Like Richardson, Wyatt concerned whether private individuals could invoke qualified immunity to defeat Section 1983 violations. First, as Wyatt noted, Section 1983 seeks “to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide related relief.” Section 1983 “imposes liability only where a person acts ‘under color’ of a state ‘statute, ordinance, regulation, custom, or usage.’” Wyatt also suggests that “Section 1983 can sometimes impose liability upon a private individual.” Second, Wyatt reiterated that, after Harlow, the Court drew a distinction between “immunity from suit” and “other legal defenses for determining qualified immunity.” The Wyatt concurrence emphasized that immunity releases one from the judicial determination of her actions while legal defense can entail “the essence of the wrong.” Third, Wyatt discussed the origin of qualified immunity. Even though the history and text of Section 1983 provided causes of action against state officials for violating constitutional and statutory rights, the text did not expressly mention or address any immunities. Despite this, the Warren Court bestowed immunity where a “tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that ‘Congress would have specifically so provided had it wished to abolish the doctrine.’” The Wyatt majority based its decision on history and potential policy consequences of bringing suits against government officials. Fourth, Wyatt resolved the question presented narrowly and explicitly limited its holding to “private persons . . . who conspire with state officials,” by stating that private defendants “faced with § 1983 liability for invoking a state replevin, garnishment, or attachment statute” were not entitled to immunity.

Richardson posed a new legal question: whether two employees of a private prison management firm enjoy a qualified immunity from suit under Section 1983. Justice Breyer did not believe that they did. He briefly explained that there were no common law traditions that afforded qualified immunity to privately employed prison guards. He devoted the discussion primarily to the aforementioned policy rationales.

Justice Breyer first argued that the most important aspect of special governmental immunity was unwarranted timidity. The market would discipline private prison firms when their guards behaved too aggressively or too timidly by raising costs, thereby permitting other firms to show that they can operate the prison both safely and effectively. Second, privatization means that enough insurance exists to cover liability, so risk of liability will not deter talented candidates. Third, although lawsuits may distract private employees from their duties, in the case of private contractors, this is not sufficient reason to justify qualified immunity. The state, in anticipating that there may be lawsuits relates to its actions, can opt to leave discretionary tasks to state officials.

In his dissent, Justice Scalia first rejected Justice Breyer’s argument that no common law traditions granted qualified immunity to private contractors. Justice Scalia suggested that a court should reject claims for qualified immunity only if that court in the nineteenth century rejected similar claims. Lack of cases granting qualified immunity was not alone sufficient to support the position that there was no such qualified immunity.

Instead of treating qualified immunity on a case-by-case basis, Justice Scalia argued that the Court’s precedent indicated that an immunity analysis should rest on functional categories, not on the status of the defendant. Immunity “flows not from rank or title or ‘location within the Government,’ . . . but from the nature of the responsibilities of the individual official.” Justice Scalia also pointed out such functional treatment was applied in a prison guard case contemporaneous to the enactment of Section 1983. He wrote:

Alamango v. Board of Supervisors of Albany Cty., 32 N.Y. Sup.Ct. 551 (1881), held that supervisors charged under state law with maintaining a penitentiary were immune from prisoner lawsuits. Although they were not formally state officers, the court emphasized the irrelevance of this fact: “the duty of punishing criminals is inherent in the Sovereign power. It may be committed to agencies selected for that purpose, but such agencies, while engaged in that duty, stand so far in the place of the State and exercise its political authority, and do not act in any private capacity.”

Thus, Justice Scalia’s historical approach to immunity led to a different conclusion than the majority’s historical approach.

The Court has regularly accorded private individuals’ immunity when liability has arisen from performance of a governmental function. Moreover, Justice Scalia has pointed out that witnesses who testify in court proceedings enjoy immunity regardless of whether they are government employees. The Court has also long recognized the absolute immunity of grand jurors, noting:

[L]ike prosecutors and judges they must “exercise a discretionary judgment on the basis of evidence presented to them.” It is the functional comparability of [grand jurors’] judgments to those of the judge that has resulted in [their] being referred to as “quasi-judicial” officers, and their immunities being termed “quasi-judicial” as well.

Justice Scalia suggested that it would be highly unlikely that the Court would deny prosecutorial immunity to those private attorneys increasingly employed by jurisdictions to conduct high-visibility criminal prosecutions.

E. Current Interpretation (Filarsky v. Delia)

Justice Scalia’s statements regarding prosecutorial immunity foreshadowed the most recent qualified immunity case: Filarsky v. Delia. In 2012, fifteen years after Justice Scalia’s speculation, the Supreme Court held that an attorney retained by a city to help investigate allegations of time theft was entitled to qualified immunity.

In this case, “Nicholas Delia, a firefighter employed by the city of Rialto, California (or City), became ill while responding to a toxic spill.” As result, Delia missed three weeks of work. The city became suspicious and hired a private investigator to determine his whereabouts. When the investigator saw Delia purchasing building supplies, the city suspected that he was missing work to renovate his home. Delia appeared for an administrative interview conducted by Steve Filarsky, an experienced employment lawyer. Filarsky asked Delia to produce the building supplies for inspection, but Delia refused and sued Filarsky and City officials under Section 1983.

The Court held that private individuals acting under the supervision of the government were entitled to qualified immunity. The Court noted that historical evidence existed of a mixture of private individuals and public employees carrying out criminal prosecution in the nineteenth century when the size of government was relatively small and did not have sufficient resources. Common law from that period therefore extended certain protections to individuals engaged in adjudicative activities.

Then the Court distinguished Filarsky from Wyatt because Wyatt was a case about private individuals using government services for personal ends. Conversely, Filarsky concerned individuals working for the government to pursue public good. If such individuals cannot be afforded qualified immunity, this would frustrate the government’s purpose and objectives.

Even though the Court tried to distinguish Filarsky from Richardson, it did not fully explain the difference between the two cases. It merely suggested that the holding in Richardson was narrow and specific to the circumstances in which “a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undert[ook] that task for profit and potentially in competition with other firms.” Filarsky does not fit with the facts in Richardson as Filarsky was a private individual, acting under the direct supervision of the government.

Following Filarsky, circuit courts are split over how to approach qualified immunity for private contractors. Filarsky held that lawyers who work under the guidance of the government enjoy qualified immunity because, when Section 1983 was passed, existing cases established such immunity. This is called the common law defense. The Sixth Circuit, following the logic of the common law defense, adopts an “original and historical” approach and surveys cases of immunity in the nineteenth century for the professions at issue and the outcomes of such cases.

The Seventh Circuit treats Richardson narrowly. If private contractors are not sufficiently similar to the parties in Richardson, the Seventh Circuit looks to the policy considerations articulated in Richardson. Thus, its predominant test when deciding whether or not to extend qualified immunity to private contractors involves analyzing the purposes behind qualified immunity. Finally, the Fifth Circuit analyzes whether a private contractor performs a state function.

III. Differing Viewpoints—The Circuit Splits

This Part discusses each circuit’s approach to qualified immunity for private contractors and argues that, of the three competing views, the Fifth Circuit’s functionalist approach is the most appropriate.

A. Sixth Circuit: Immunity Based on Original Meaning and Historical Cases From the Nineteenth Century

The Sixth Circuit adopted an original and historical approach and surveyed cases of immunity in the nineteenth century for the professions at issue and the outcomes of such cases. This approach, however, can overlook professions that did not exist in the nineteenth century but should receive qualified immunity today.

1. McCullum v. Tepe

In McCullum v. Tepe, the Sixth Circuit found that a privately employed physician working for the public, if sued under Section 1983, should not enjoy the protection of qualified immunity. Dr. Kenneth Tepe, a prison psychiatrist, practiced in Butler County Prison where, in 2007, “Timothy Hughes died after hanging himself from his bed.” While in prison, Hughes did not show signs that he was suicidal, despite a history of depression, but he “asked to see Dr. Tepe about anti-depression medication.” The Butler County Prison contracted Dr. Tepe’s services for approximately ten years. “Until 2005, the County paid Dr. Tepe directly. At the time of Hughes’s suicide, however, [Dr.] Tepe worked” for a non-profit entity, Community Behavioral Health, that provided services from mental health assessment to counseling for Butler County Prison inmates.

“The Prison’s psychiatric services program, which [Dr.] Tepe designed, had two steps.” First, a social worker would determine which inmates Dr. Tepe should see. Then, if the social worker made such a recommendation, the inmate would meet with Dr. Tepe. Hughes and Dr. Tepe never met. Hughes’s mother, McCullum, filed a Section 1983 suit, alleging that Dr. Tepe was “deliberately indifferent” to her son’s “serious medical need.” Dr. Tepe sought summary judgment, arguing that he was entitled to qualified immunity.

The Sixth Circuit rejected Dr. Tepe’s claims for two reasons. First, no historical evidence suggested that a privately paid physician working for the public enjoyed such protection. Second, the policy rationales that support qualified immunity were not strong enough to justify ignoring the lack of such history.

In explaining its rationale, the Sixth Circuit admitted that Filarsky did not impose a rigid date limit for the inquiry into common law practice. The Sixth Circuit believed that, since the historical discussion in Filarsky focused on the state laws around the time when the Congress enacted Section 1983, the Court should only look at the same period to determine whether there existed historical evidence for qualified immunity. Congress enacted Section 1983 in the nineteenth century. Therefore, the Sixth Circuit looked at case law in the nineteenth century and concluded that there were no cases suggesting such immunity afforded to a doctor in similar circumstances. Ultimately, the Sixth Circuit decided not to grant immunity to Dr. Tepe.

Moreover, the Sixth Circuit offered additional policy rationale to justify its decision. It admitted, “We acknowledge that it is somewhat odd for a government actor to lose the right to assert qualified immunity, not because his job changed, but because a private entity, rather than the government, issued his paycheck.” It believed that the logic of “market pressures, a private firm’s ability to ‘offset any increased employee liability risk with higher pay or extra benefits,’” justified the decision. In other words, economic pressure, in part, guides the Sixth Circuit’s decision in McCullum.

2. Criticisms

The Sixth Circuit, however, was mistaken. In Richardson, Justice Breyer declined to extend the qualified immunity to private contractors because such contractors are employed by “a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertak[ing] that task for profit and potentially in competition with other firms.” In other words, Richardson was a narrow and fact-specific decision.

In McCullum v. Tepe, the institution that contracted with Dr. Tepe was Community Behavioral Health, a non-profit entity. The nature of that entity was different from the one in Richardson because, in the latter, the entity was for-profit and systematically organized to assume a long-term administrative task (managing an institution). In McCullum v. Tepe, instead of managing the institution, Community Behavioral Health merely provided mental-health assessments for Butler County Prison inmates. Moreover, it was unclear whether the Community Behavioral Health was in fierce competition with other institutions to provide such services, a critical factor that Justice Breyer stressed in his majority position in Richardson.

The second aspect of Justice Breyer’s position in Richardson was also overlooked: “ensur[ing] that talented candidates were not deterred by the threat of damages suits from entering public service.” Put simply, physicians would be less inclined to work for the government if they would not enjoy some sort of immunity. The county might need to outsource the mental health counselling services to for-profit companies, which do not enjoy qualified immunity pursuant to the Court’s decision in Richardson. Ironically, if the contractual relationship had not changed, Dr. Tepe might have received qualified immunity because the state had previously paid him directly.

The Sixth Circuit concluded that its decision would guard against the distraction that lawsuits inevitably create. The opposite might be true, however: a physician’s fear of his or her potential liability under the capacity as a private physician might lead to the timidity of action that concerned Justice Breyer in Richardson.

In conclusion, the outcome of McCullum v. Tepe is irreconcilable with Filarsky and Richardson. The Sixth Circuit rejected Dr. Tepe’s claim of qualified immunity because there was no historical case law to support such a decision. If historical evidence of qualified immunity protection existed, as in Filarsky, then the actor would have had qualified immunity. This ruling created a potential incentive for the affected individuals to sue those private actors who worked for the government whose occupations did not enjoy immunity in the nineteenth century. As Justice Scalia pointed out in the dissent from Richardson, this reliance might create two problems for historical inquiry. First, a lack of evidence was not necessarily indicative of lack of immunity; it could be that no evidence survived from the nineteenth century to guide the Court’s analysis. Second, it could be that the occupation at issue did not exist in the nineteenth century.In either scenario, the historical test would fail, requiring the judge to rely on policy in reaching a decision.

B. Seventh Circuit: Immunity Based on a Broader Reading of Richardson

The Seventh Circuit extracted a broader holding from Richardson, which is supposed to be a narrow and fact-specific decision. That decision nonetheless indicated that a court should at least determine whether the profession at issue existed in the nineteenth century and received qualified immunity to guide its decisions.

1. Meadows v. Rockford Housing Authority

Underlying a relevant Seventh Circuit holding, Don Meadows “worked as a building engineer for the [Rockford Housing Authority] RHA” and “leased an apartment from the agency.” RHA tenants complained to the management that a stranger was living in Meadows’s apartment. Charles Doyle, RHA’s Security Support Manager, saw an unknown man leave the apartment. Doyle reported the incident to the Executive Director of the organization, John Cressman, who in turn referred to Metro Enforcement, a private security company contracted by the RHA. John Novay, who was Metro Enforcement’s deputy chief, went to investigate whether Meadows subleased the apartment without permission.

Novay knocked on the apartment door and met Marc Sockwell, the unauthorized tenant. Novay “took Sockwell’s apartment key, and escorted him from the building.” Sockwell informed Meadows of the incident. Meadows installed a new deadbolt without notifying RHA or Metro Enforcement. After being informed that an unauthorized person was living Meadow’s apartment, RHA Executive Director Cressman suggested changing the locks on the apartment. After Meadows installed the deadbolt, Novay, along with a locksmith, changed the lock but did not see anyone living in the apartment. Upon seeing Novay in his apartment, Meadows called the police.

Meadows brought suit against Novay under Section 1983 for violating his Fourth Amendment rights. The Seventh Circuit ruled for the Novay. The court did not address historical cases as required by Filarsky, but instead justified its decision using the policy rationales behind Richardson. The Seventh Circuit relied heavily on Richardson, even though it admitted that the case was narrow and fact-specific.

Although the corporation that employed Novay was a private firm, like the firm in Richardson, the Seventh Circuit held that the outcome should be different from Richardson because this private firm did not work independently of state supervision. Rather, the government directly supervised RHA. Moreover, the Seventh Circuit believed that this case was similar to Filarsky because of the public policy rationales. When an entity performs tasks at the instruction of government officials, this sequence implicates public interests. Insulating employees of entities from lawsuits might ensure that they will not be distracted from their duties and ability to perform their duties.

2. Criticisms

The Seventh Circuit’s justification for allowing qualified immunity to Novay, a private contractor, was not convincing for two reasons. First, Richardson was a narrow holding. The Seventh Circuit affirmed and recognized this narrow holding. The Seventh Circuit mistakenly extracted a broader holding from the narrow case by treating Richardson as representative of the logic of qualified immunity.

Furthermore, the Seventh Circuit should have conducted historical research to determine whether there existed similar immunity for the party at the issue like the Sixth Circuit in McCullum v. Tepe. Additionally, as Justice Douglas argued in Pierson v. Ray, abolishing qualified immunity was not likely to open the floodgates of litigation. Courts are afforded judicial discretion and are tasked with making informed inquiries, which may provide additional protections to parties in lawsuits.

C. Fifth Circuit: Immunity Based on the Functionalist Approach

The Fifth Circuit has adopted an “original and historical” approach and surveyed cases of immunity in the nineteenth century for the professions at issue, analyzing the outcomes of such cases. This approach, however, can overlook professions that did not exist in the nineteenth century but should receive qualified immunity today.

1. Perniciaro v. Lea

In Perniciaro v. Lea, Dominick Perniciaro was committed to the Eastern Louisiana Mental Health System because of his schizophrenia symptoms. While institutionalized, he had “physical altercations with other patients and with guards” and sustained several injuries as a result. He filed a Section 1983 suit against Dr. Jeffrey Nichol, his psychiatrist, Dr. John Thompson, the institution’s chief of staff, and Hampton “Steve” Lea, the institution’s chief executive. The State contracted its psychiatric services to Tulane University, a private entity. Both Drs. Nicholl and Thompson were employees of Tulane University. Dr. Thompson reported to Mr. Lea, who was employed directly by the state. He was responsible for operating the facility and ensuring that state policies were enforced in the institution. Only Mr. Lea was a state employee. Drs. Nicholl and Thompson were contractors hired by Tulane University to provide psychiatric services.

The Fifth Circuit analyzed whether Drs. Nicholl and Thompson, private employees, could receive qualified immunity. The court held that Drs. Nicholl and Thompson were permitted to assert qualified immunity, despite the existing circuit split regarding whether privately employed doctors may receive such privileges. The Fifth Circuit took a functionalist approach toward qualified immunity. As it explained, courts “did not draw a distinction between public servants and private individuals engaged in public service in according protection to these carrying out government responsibilities.” The Fifth Circuit then haphazardly concluded that, even though Drs. Nicholl and Thompson worked in a public institution and alongside government employees, because public employees would receive qualified immunity, Drs. Nicholl and Thompson should also receive qualified immunity.

2. Criticisms

The Fifth Circuit’s decision suffers from a few shortcomings. First, it deviates from the reasoning of the Supreme Court in Filarsky. The Fifth Circuit should have considered whether there existed common law protections for the professions at issue in the nineteenth century. In a footnote, the Fifth Circuit recognized that both the Ninth and Eleventh Circuits rejected qualified immunity for the privately employed doctors because both circuits did not find a tradition of immunity for doctors who worked for the State. Given that finding, the Fifth Circuit should not have granted qualified immunity for Drs. Nicholl and Thompson. It recognized this circuit split issue but suggested that it read Filarsky to require a different focus.

This shift in focus, however, was misplaced. The Fifth Circuit based its decision on the policy rationales behind both Richardson and Filarsky. It argued that qualified immunity serves three purposes:

(1) preventing unwarranted timidity in the exercise of official duties; (2) ensuring that highly skilled and qualified candidates are not deterred from public service by the threat of liability; and (3) protecting public employees—and their work—from all of the distraction that litigation entails.

The Fifth Circuit justified its decision by arguing that these three criteria were fulfilled by not comparing its situation to Filarsky, which was recently decided, but rather to Richardson. However, the Supreme Court made it clear in Richardson and explained again in Filarsky that the Court had resolved the qualified “immunity question narrowly, in the context in which it arose.” Thus, Richardson was fact-specific and not meant to be a broader holding.

The distinction that the Fifth Circuit drew between Perniciaro v. Lea and Richardson was tenuous. It distinguished Perniciaro from Richardson because, in the former, the market pressure was weak. The state of Louisiana operated the Eastern Louisiana Mental Health System—not Tulane. Therefore, the Fifth Circuit considered the mental health system a state-run facility and thus a government entity. Moreover, it argued that Tulane University was not systematically organized to assume a major length administrative task, and the university’s primary function was not to provide health-care services. Further, Drs. Nicholl and Thompson had other duties besides seeing patients. Thus, the Fifth Circuit concluded that the market pressure would not prevent overly timid care.

The Fifth Circuit’s reasoning is not convincing. Principally, the last statement is almost self-contradictory. The reason that the Court in Filarsky granted qualified immunity was that such immunity—not market pressure—would prevent overly timid care (and, by extension, that the lack of qualified immunity may lead to overly timid care). Therefore, the logical connection between qualified immunity and timid performance is reversed. In addition, the Fifth Circuit believed that because Tulane University had held the contract since 1992, there was no indication of market pressure. As Justice Scalia pointed out in Richardson, there were multiple reasons that Tulane University might receive the contract from the state, which were unrelated to market pressure. Moreover, the Fifth Circuit provided no evidence of a lack of competition between Tulane University and other private parties to bid for the contract.

The Fifth Circuit argued that Perniciaro fulfilled the second purpose of qualified immunity, to help talented candidates enter into public service. If doctors like Drs. Nicholl and Thompson did not enjoy qualified immunity, talented candidates could be deterred from public service due to the threat of litigation. The Fifth Circuit believed that granting qualified immunity to private doctors like Drs. Nicholl and Thompson would not deter them from taking public service because their pay was not unknown. Thus, creating liabilities for their actions might bankrupt them. Nevertheless, the Fifth Circuit did not discuss whether Tulane University bought insurance for their employees in this situation. One reason why the Court in Richardson declined to afford qualified immunity to the private contractors was that the company had enough insurance to cover the liability. The Fifth Circuit failed to mention this critical element when it tried to distinguish its case from Richardson.

Third, the Fifth Circuit argued that qualified immunity protected the public employees from unnecessary lawsuits. Drs. Nicholl and Thompson were private individuals. However, as the Fifth Circuit admitted, Drs. Nicholl and Thompson had duties in addition to seeing patients. They could elect to not see patients, thus avoiding lawsuits. The third purpose behind the qualified immunity was that if the public employees had not received qualified immunity, lawsuits could improperly distract the employees from their official public duties. Since Drs. Nicholl and Thompson were not university employees but rather private contractors, qualified immunity did not fully serve the purpose that the Fifth Circuit claimed it served.

Thus, although the Fifth Circuit’s functionalist approach toward the qualified immunity was commendable, its heavy reliance on policy justifications frustrates the reasoning behind its decision.

IV. Moving Forward with the Functionalist Approach

As demonstrated above, the Supreme Court’s decisions in Filarsky and Richardson have created confusion for lower courts. The lower courts approach and interpret these two cases differently, as the Fifth Circuit noted in Perniciaro. Some courts first conduct historical research into the common law in the nineteenth century to see whether the courts at that time afforded immunity to particular private professions. However, the historical approach poses problems for professions that did not exist in the nineteenth century.

This analysis raises another issue: should the Court still grant qualified immunity to certain professions based on nineteenth century common law? A court might instead turn to policy rationales outlined in Richardson. As the Court noted in Richardson, however, that decision was an extremely narrow one. Under any existing standard, an individual needs to fulfill many characteristics to receive qualified immunity: a private firm, systematically organized, managing an institution, limited supervision by the government, undertaking the task for profit, and potentially competing with other firms. If a firm has limited direct supervision by the government but does not compete with other firms, does this mean that it is distinguishable from Richardson? How can courts draw the line?

Qualified immunity, as Justice Douglas reminded us, is a judicial construction. Appealing to the policy rationales outlined in Filarsky and Richardson is another judicial creation. Such an analysis affords judges too much discretion to decide whether a private contractor may receive qualified immunity and can easily lead to different outcomes, depending on how different circuits interpret underlying policy considerations.

Congress should therefore enact the following statutory language: private contractors shall be liable in the same manner and to the same extent as the United States for tort claims or violations of individuals’ constitutional rights unless private contractors do not receive any supervision from the United States and work independently.

V. Conclusion

In sum, a functionalist approach toward qualified immunity for private contractors is the most logical approach because it affords less judicial discretion and draws a bright line for the private contractors. If private contractors perform the same tasks as state employees, then they should enjoy the same privileges as state employees. Under this approach, private contractors need not worry about their discretionary decisions and potential liability for such decisions. Second, a functionalist approach avoids free riding. Plaintiffs can choose which private contractors to sue based on whether there exists historical evidence that certain professions who received qualified immunity at the time of passing the Section 1983, especially when courts strictly follow the “original and historical” approach.

The functionalist approach also incorporates the recent discussion of abolishment of qualified immunity without creating unnecessary burdens on courts to reexamine previous decisions regarding private contractors. Thus, the functionalist approach creates both horizontal harmony by treating private contractors and state employees similarly and vertical harmony by eliminating circuit splits.