Resolving the Problem of Qualified Immunity for Private Defendants in Section 1983 and Bivens Damage Suits

• NCJ Number: 133385
• Author(s): C W Thomas
• Date Published: Unknown
• Length: 58 pages
• Publication Format: Document
• Publication Type: Survey
• Language: English
• Country: United States of America
• Note: To be presented at the Southern Conference on Corrections, Tallahassee, Florida, February 24-25, 1992.

Annotation

As local, State, and Federal governments rely more and more heavily on private contractors for the provision of services, including corrections, Federal courts will be confronted with cases regarding the availability to private employees of a qualified immunity from civil rights damages brought under 42 U.S.C. Section 1983 or the Federal analog to Section 1983 that resulted from the Supreme Court Bivens decision. Qualified immunity refers to those situations in which public officials are immune from liability for monetary damages where the constitutional right violated was not clearly established at the time of the alleged violation.

Abstract

This analysis reviews the courts' general rationale regarding the appropriateness of either absolute or qualified immunity, describes the major Supreme Court cases which have defined the tests by which qualified immunity defenses are evaluated, and examines the conflict that divides Federal circuit courts on this issue. The author concludes that private citizens, particularly those who are carrying out the responsibilities normally invested in government officials, should enjoy the same degree of immunity from litigation that is enjoyed by their public sector counterparts.