Government Contractors’ Liability for Constitutional Torts: The Legal Implications of Privatization

From: Review of Public Personnel Administration 22:3 (2002): 241-245. In recent decades, public administrators have witnessed a burgeoningtrend toward privatization of government services. At the same time, however, existing legal doctrines and principles enunciated in precedent and statutes have sometimes failed to accommodate the privatization movement. In this brief, we address several legal issues raised by privatization concerning the scope of private contractors’ constitutional tort liability. Understanding the diﬀerences in public and private service providers’ liability may assist public managers faced with the decision to privatize. In recent years, governments have come to rely extensively on the privatesector to perform traditional public functions. For example, governments have contracted with private entities to provide public school education, mental health care facilities, detention and correctional facilities, janitorial services and refuse collection, wastewater treatment, and social services. Although viewed in light of potential cost-saving opportunities, the privatization decision has blurred the line between the public and private spheres and raises important philosophical issues related to private contractors performing public functions (Donahue, 1989). At the same time, existing legal doctrines and principles enunciated in precedent and statutes often fail to accommodate the trend toward privatization of governmental services. How should courts respond to such innovations in public management? One area where this question has been raised involves the constitutional tort liability of private ﬁrms and individuals who contract with federal, state, and local governments to deliver essential public services. In this note, we discuss several related questions concerning the scope of aprivate party’s constitutional tort liability, including whether private individuals and corporations are subject to suits for monetary damages for constitutional violations and whether such private defendants may enjoy qualiﬁed immunity protections from constitutional torts. Understanding the diﬀerences in public and private service providers’ liability may assist public managers faced with the decision to privatize. Indeed, private contractorsFor governmental agents at the state level, liability for constitutional torts is derived from the Civil Rights Act of 1871, codiﬁed at 42 U.S.C. § 1983. Originally designed to address the Klan’s activities in the South during the Reconstruction era, section 1983 provides a civil cause of action for plaintiﬀs alleging violation of their federal constitutional or statutory rights by persons acting under color of state law. The section was intended to protect persons against misuse of power made possible because the defendant acted while clothed with the authority of the state. State employees whose oﬃcial actions violate citizens’ constitutional rights may be sued personally under section 1983.1 On the other hand, private parties are not subject to liability unless the plaintiﬀ can prove that a private defendant’s actions were undertaken “under color of state law.” To so qualify, private parties’ actions must be “fairly attributable to the state.” Courts have held that where private parties perform traditional state functions or participate with a state to engage in concerted activity, they act under color of state law for purposes of section 1983. As a result, a wide range of constitutional rights may be enforced against private defendants with whom state government has contracted to perform public functions. Moreover, the Supreme Court has authorized suits against both individuals and corporations as proper defendants under section 1983. Where the focus is on federal action rather than state action, plaintiﬀsalleging violation of constitutional rights may rely on the judicially created Bivens (1971) action. This remedy for violations by federal oﬃcials is similar to section 1983 except that it provides for the enforcement of a narrower range of constitutional rights against fewer potential defendants. The narrower scope of the Bivens action stems from its source; as a judicially created remedy, the Supreme Court has been reluctant to expand Bivens beyond a limited number of claims. According to the Court, a Bivens action may be implied only in those situations in which Congress has not provided an alternative remedy or where the Court has not discerned “special factors counseling hesitation in the absence of aﬃrmative action by Congress” (Schweiker v. Chilicky, 1988, p. 421, citing Bivens). At this time, it is well settled that a Bivens action exists for violations of Fourth, Fifth, and Eighth Amendment rights, but the Supreme Court has not extended Bivens to other constitutional torts. Thus, in contrast with the wide range of liability under section 1983, private contractors with the federal government may clearly be subject to suit under Bivens for unreasonable searches and seizures, for violations of due process, and for cruel and unusual punishment, but suits for other constitutional violations may be limited. Moreover, although lower courts and commentators have indicated that private individuals may benot Services Corporation v. Malesko (2001), a ﬁve-member majority held that the corporate operator of a halfway house for federal inmates could not be sued for Eighth Amendment violations. Although the Court did not address the question whether individual corporate employees could be sued in a Bivens action, the opinions in the case seem to reﬂect the emerging consensus that such individual liability does exist (see Correctional Services Corporation, 2001, p. 526, n. 6).