Cite as: 521 U. S. 399 (1997)
Scalia, J., dissenting
guard. It is only the absence of such a case, and not any explicit rejection of immunity by any common-law court, that the Court relies upon. The opinion observes that private jailers existed in the 19th century, and that they were successfully sued by prisoners. But one could just as easily show that government-employed jailers were successfully sued at common law, often with no mention of possible immunity, see Schellenger, Civil liability of sheriff or other officer charged with keeping jail or prison for death or injury of prisoner, 14 A. L. R. 2d 353 (1950) (annotating numerous cases where sheriffs were held liable). Indeed, as far as my research has disclosed, there may be more case-law support for immunity in the private-jailer context than in the government-jailer context. The only pre-§ 1983 jailer-immunity case of any sort that I am aware of is Williams v. Adams, 85 Mass. 171 (1861), decided only 10 years before § 1983 became law. And that case, which explicitly acknowledged that the issue of jailer immunity was "novel," ibid., appears to have conferred immunity upon an independent contractor.1
The truth to tell, Procunier v. Navarette, supra, which established § 1983 immunity for state prison guards, did not trouble itself with history, as our later § 1983 immunity opin-1 Williams held that prisoners could not recover damages for negligence against the master of a house of correction. That official seems to have been no more a "public officer" than the head of a private company running a prison. For example, the governing statute provided that he was to be paid by the prisoners for his expenses in supporting and employing them, and in event of their default he was given an action indebitatus assumpsit for the sum due, "which shall be deemed to be his own proper debt." Mass. Gen. Stat., ch. 143, § 15 (1835). If he failed to distribute to the prisoners those "rations or articles of food, soap, fuel, or other necessaries" directed by the county commissioner (or the mayor and aldermen of Boston), he was subject to a fine. Id., § 45. The opinion in Williams says that "[t]he master of the house of correction is not an independent public officer, having the same relations to those who are confined therein that a deputy sheriff has to the parties to a writ committed to him to serve." 85 Mass., at 173.
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