418
Scalia, J., dissenting
nesses who testify in court proceedings have enjoyed immunity, regardless of whether they were government employees. "[T]he common law," we have observed, "provided absolute immunity from subsequent damages liability for all persons—governmental or otherwise—who were integral parts of the judicial process." Briscoe, supra, at 335 (emphasis added). I think it highly unlikely that we would deny prosecutorial immunity to those private attorneys increasingly employed by various jurisdictions in this country to conduct high-visibility criminal prosecutions. See, e. g., Kaplan, State Hires Private Lawyer for Bryant Family Trial, Los Angeles Times, Apr. 28, 1993, p. B4, col. 2; Estrich, On Building the Strongest Possible Prosecution Team, Los Angeles Times, July 10, 1994, p. M1, col. 1. There is no more reason for treating private prison guards differently.
II
Later in its opinion, the Court seeks to establish that there are policy reasons for denying to private prison guards the immunity accorded to public ones. As I have indicated above, I believe that history and not judicially analyzed policy governs this matter—but even on its own terms the Court's attempted policy distinction is unconvincing. The Court suggests two differences between civil-service prison guards and those employed by private prison firms which preclude any "special" need to give the latter immunity. First, the Court says that "unwarranted timidity" on the part of private guards is less likely to be a concern, since their companies are subject to market pressures that encourage them to be effective in the performance of their duties. If a private firm does not maintain a proper level of order, the Court reasons, it will be replaced by another one—so there is no need for qualified immunity to facilitate the maintenance of order.
This is wrong for several reasons. First of all, it is fanciful to speak of the consequences of "market" pressures in a
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