Ronnie Lee McKnight v. John Rees, Daryll Richardson and John Walker

DAVID A. NELSON, Circuit Judge,

concurring in the judgment.

If I believed that we were free to dispose of this appeal on public policy grounds, my vote would be to remand the case with instructions to dismiss it should the district court conclude that the conduct of the defendant correctional officers could reasonably have been thought consistent with the constitutional rights the officers are alleged to have violated. The notion that there is likely to be a meaningful difference between the behavior of a correctional officer whose paycheck comes from the State of Tennessee and the behavior of a correctional officer whose paycheck comes from the Corrections Corporation of America is a notion, it seems to me, that bespeaks a vaguely utopian view of the virtues of those who feed at the public trough. This view is not one I share. If it is sound public policy to offer qualified immunity from suit to the correctional officer employed by a public corporation, I think it is equally sound policy to offer qualified immunity to the officer employed by a private corporation, assuming both employees perform identical functions for identical reasons.

As a matter of circuit precedent; however, I believe that this panel is foreclosed from following the course to which my own view of public policy might point. In Duncan v. Peck, 844 F.2d 1261 (6th Cir.1988), as the Supreme Court has recognized, “[t]he Sixth Circuit ... rejected qualified immunity for private defendants sued under § 1983 but ... established a good faith defense.” Wyatt *426 v. Cole, 504 U.S. 158, 161 , 112 S.Ct. 1827, 1830 , 118 L.Ed.2d 504 (1992).

In rejecting qualified immunity for private parties, the Duncan panel applied a two-part test:

“The first part requires the party claiming immunity to show that the immunity was recognized at common law. The second part requires a showing of strong public policy reasons for granting such an immunity.” Duncan, 844 F.2d at 1264 (footnote omitted).

The holding of Duncan was stated by the panel as follows:

“Because we find no evidence that private parties were immune from suit at common law, and because the various rationales for good faith immunity are inapplicable to private parties, we hold that private parties are not eligible for immunity from suit.” Id. (Emphasis supplied.)

This holding may be too broad, but I believe that our circuit precedent rule makes it binding on us here. It is true that where public officials are concerned, the Supreme Court has disclaimed any “suggestion] that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law.” Anderson v. Creighton, 483 U.S. 635, 645 , 107 S.Ct. 3034, 3042 , 97 L.Ed.2d 523 (1987). As Anderson went on to say, “[t]hat notion is plainly contradicted by Harlow [v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982) ], where the Court completely reformulated qualified immunity along principles not at all embodied in the common law_” Id. But the Supreme Court decided Anderson well before this court decided Duncan , so Anderson does not relieve us of the obligation to follow Duncan . And the two decisions are not inconsistent in any event, Duncan having involved private parties and Anderson having involved an agent of the Federal Bureau of Investigation.

Neither, of course, does the Supreme Court’s subsequent decision in Wyatt reheve us of the obligation to follow Duncan . The Wyatt Court pointed out that the Sixth Circuit’s blanket rejection of qualified immunity for private defendants conflicts with other circuits’ recognition of such immunity under certain circumstances, but Wyatt did not resolve the conflict. In the post-Wyatt era, I imagine, most of our sister circuits will probably continue to make qualified immunity available to private defendants who perform governmental functions for governmental purposes. Several circuits have already done so —see, e.g., Williams v. O’Leary, 55 F.3d 320 (7th Cir.), cert. denied, — U.S. -, 116 S.Ct. 527 , 133 L.Ed.2d 434 (1995) (private physicians whose employer held contract with state prison system to provide medical services for inmates could assert qualified immunity); Warner v. Grand County, 57 F.3d 962 (10th Cir.1995) (director of a private “crisis center” who performed body cavity search at sheriffs request entitled to qualified immunity); Leeks v. Cunningham, 997 F.2d 1330 (11th Cir.), cert. denied, 510 U.S. 1014 , 114 S.Ct. 609 , 126 L.Ed.2d 573 (1993) (private physician providing medical services under contract with county jail entitled to qualified immunity). Given Duncan , however, I do not believe that the qualified immunity option is currently open to our panel.

Except insofar as to the right to an interlocutory appeal is concerned, the courts’ increasingly benign attitude toward summary judgment proceedings may frequently mean that there will be little practical difference between the good faith defense that was recognized in Duncan and the qualified immunity “defense” (arguably a misnomer, see Duncan, 844 F.2d at 1265 ) recognized by our sister circuits. The good faith defense is not before us now, however, and I intimate no view as to whether the defendants can prevail on such a defense under the facts of this case.

For the reasons stated, I concur in the affirmance of the district court’s denial of qualified immunity.