400
Syllabus
performs a job without government supervision or direction. Petitioners' argument to the contrary overlooks certain important differences that are critical from an immunity perspective. First, the most important special government immunity-producing concern—protecting the public from unwarranted timidity on the part of public officials—is less likely present when a private company subject to competitive market pressures operates a prison. A firm whose guards are too aggressive will face damages that raise costs, thereby threatening its replacement by another contractor, but a firm whose guards are too timid will face replacement by firms with safer and more effective job records. Such marketplace pressures are present here, where the firm is systematically organized, performs independently, is statutorily obligated to carry insurance, and must renew its first contract after three years. And they provide the private firm with incentives to avoid overly timid job performance. To this extent, the employees differ from government employees, who act within a system that is responsible through elected officials to the voters and that is often characterized by civil service rules providing employee security but limiting the government departments' flexibility to reward or punish individual employees. Second, privatization helps to meet the immunity-related need to ensure that talented candidates are not deterred by the threat of damages suits from entering public service. Comprehensive insurance coverage increases the likelihood of employee indemnification and to that extent reduces the employment-discouraging fear of unwarranted liability. Since a private firm is also freed from many civil service restraints, it, unlike a government department, may offset increased employee liability risk with higher pay or extra benefits. Third, while lawsuits may distract private employees from their duties, the risk of distraction alone cannot be sufficient grounds for an immunity. Tennessee, which has decided not to extend sovereign immunity to private prison operators, can, moreover, be understood to have anticipated a certain amount of distraction. Pp. 407-412. (d) The Court closes with three caveats. First, the focus has been on § 1983 immunity, not liability. Second, the immunity question has been answered narrowly, in the context in which it arose, and, thus, does not involve a private individual briefly associated with a government body, serving as an adjunct to government in an essential governmental activity, or acting under close official supervision. Third, no opinion is expressed on the issue whether petitioners might assert not immunity, but a special good-faith defense. Pp. 413-414.
88 F. 3d 417, affirmed.
Breyer, J., delivered the opinion of the Court, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed a dis-
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