Cite as: 521 U. S. 399 (1997)
Scalia, J., dissenting
The point that function rather than status governs the immunity determination is demonstrated in a prison-guard case virtually contemporaneous with the enactment of § 1983. Alamango v. Board of Supervisors of Albany Cty., 32 N. Y. Sup. Ct. 551 (1881), held that supervisors charged under state law with maintaining a penitentiary were immune from prisoner lawsuits. Although they were not formally state officers, the court emphasized the irrelevance of this fact:
"The duty of punishing criminals is inherent in the Sovereign power. It may be committed to agencies selected for that purpose, but such agencies, while engaged in that duty, stand so far in the place of the State and exercise its political authority, and do not act in any private capacity." Id., at 552.2
Private individuals have regularly been accorded immunity when they perform a governmental function that qualifies. We have long recognized the absolute immunity of grand jurors, noting that like prosecutors and judges they must "exercise a discretionary judgment on the basis of evidence presented to them." Imbler, 424 U. S., at 423, n. 20. "It is the functional comparability of [grand jurors'] judgments to those of the judge that has resulted in [their] being referred to as 'quasi-judicial' officers, and their immunities being termed 'quasi-judicial' as well." Ibid. Likewise, wit-2 The Court cites Alamango for the proposition that there is "no cause of action against [a] private contractor where [the] contractor [is] designated [a] state instrumentality by statute." Ante, at 406. The opinion in Alamango, however, does not cite any statutory designation of the supervisors as a "state instrumentality," and does not rely on such a designation for its holding. It does identify the Board of Supervisors as "a mere instrumentality selected by the State," 32 N. Y. Sup. Ct., at 552, but the same could be said of the prison management firm here (or the master of the house of corrections in Williams v. Adams, 85 Mass. 171 (1861), see n. 1, supra). If one were to accept the Court's distinguishing of this case, all that would be needed to change the outcome in the present suit is the pointless formality of designating the contractor a "state instrumentality"—hardly a rational resolution of the question before us.
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