In February 20th’s post regarding Knightfall, a number of commenters wondered if the fact that Arkham Asylum is presented as a private entity in some stories might affect its liability for escaping prisoners. This is actually a really good question, and one that’s becoming increasingly important as more and more states experiment with privatized prison systems. Arizona is something of a leader here, and its practices have come under pretty intense criticism on a number of fronts. But here, we’re going to look solely at whether private prisons can be sued for damages caused by escaped prisoners.
As discussed in the first post, for our purposes, it really doesn’t matter whether we’re talking about a jail, prison, or mental institution, provided the inmates are there as the result of a court order. That order could be a sentence for a crime or simply protective custody. The fact is that they’re there at the requirement of the state and not allowed to leave, so escape would be a crime. The question is whether the operator of a private prison would be more or less liable for actions an inmate takes after escaping than the state would be.
I. Do Private Prisons Enjoy Sovereign Immunity?
Probably not. Under the state actor doctrine, which we’ve discussed previously, it seems pretty clear that private prisons would be state actors for the purpose of constitutional law. When the state hires or otherwise directs a private person to do the state’s bidding, that person becomes subject to all the strictures of constitutional law with regard to their job. It doesn’t matter whether the person is technically a government employee or not as far as that goes.
State-run prisons generally can’t be sued if a prisoner escapes because states and their political subdivisions can’t be sued unless the state says they can. Most states have passed some version of a tort claims act permitting the state to be sued under certain circumstances for certain things. But as we observed last time, these acts generally do not waive sovereign immunity in the context of escaped prisoners. The state simply can’t be sued for that.
But private prisons, even if they are state actors, aren’t actually part of the government. The fact that a person is a state actor does not necessarily entitle them to sovereign immunity. Otherwise every single company that does business with the state would suddenly become entitled to sovereign immunity. Clearly, that can’t be right.
A similar but related question was actually discussed in a very recent Supreme Court case: Minnceni v. Pollard, __ U.S. __ (2012). In that case, a prisoner sued a privately run prison in California for damages, alleging that the prison’s employees had denied him access to medical care in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. The Supreme Court. . . basically punted, rejecting the plaintiff’s claim on some pretty technical grounds. The lawsuit was a so-called “Bivens” action, a cause of action created by the Supreme Court in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The Supreme Court held that the plaintiff in that case could sue government actors directly for damages for the violation of constitutional rights where there was no other available remedy. Applying Bivens jurisprudence to this case, the Court held in a 8-1 ruling (Ginsberg dissenting) that there was no permissible Bivens action here, because there was an available state tort law remedy, and 2) the defendants weren’t a state, state political subdivision, or government employee. There was thus no obvious reason why the plaintiff couldn’t seek damages in state court. The Court noted that California has explicitly held that the operators of private prisons can be sued in negligence for failing to provide adequate medical care.
So the implication, though the Court never spells it out, is that the operators of private prisons are not immune from lawsuits based on the escape of prisoners. Arizona seems to have taken this into account in its code, requiring the operators of private prisons to maintain insurance, contribute to a fund used to pay for recapturing escapees, and indemnify the state for any liability which might result from an escape. Arizona seems to be a bit weird as far as its sovereign immunity goes—the Arizona Supreme Court actually abolished it in the 1960s, but the legislature took some corrective action since then—but even in more traditional states, private prisons, like any other contractor, don’t seem to automatically receive sovereign immunity based on the nature of their services. It may be that some states have created such immunity statutorily, or that they will do so in the future, but we could not find any such statutes off the bat. The law is still developing here, and there continues to be much ink spilled in law journals on this subject. The Department of Justice has actually published a lengthy report on prison privatization, and liability is discussed in detail.
II. Does Tort Law Support Liability?
So it seems that Arkham Asylum probably wouldn’t be immune from these sorts of lawsuits. The question then becomes whether it even matters. As last time, criminal acts by a third party can serve as superseding causes which break the chain of causation. Further, as with any tort, the injury must be a foreseeable result of the negligent act. The longer it is between the time that the prisoner escapes and the crime is committed, the less likely the crime would be considered “foreseeable.”
Turning specifically to the Knightfall example, there’s something else to consider. This seems to be the one and only time that the operators of Arkham didn’t actually do anything wrong! Bane assaults the facility with heavy weapons from a helicopter. The prison certainly has a duty to exercise reasonable care in keeping its inmates confined, but there’s an excellent argument to be made that reasonable care does not include installing surface-to-air missile batteries or some kind of anti-missile screen, both of which would have been needed to deal with Bane’s assault. In the absence of any failing of reasonable care, there’s no negligence.
Strict liability might not even work either, as strict liability does contemplate superseding causes. Now we’re not talking about the inmates, we’re talking about Bane. If an inmate just sort of escapes, then one might argue (and we’re not going to address that argument here) that Arkham should be strictly liable, i.e. liable whether or not they deviated from the applicable standard of care. Same goes for manufacturers and products liability most of the time, in that if a product is defective, it doesn’t really matter if the manufacturer did its best to avoid that. But borrowing from the products liability scenario, it’s a defense to a strict liability products liability claim if the product was modified or altered between the time it left the factory and the time the consumer was injured. In other words, the manufacturer is strictly liable for all those things in its control, but not the actions of others. Similarly, while Arkham may well be strictly liable for letting the Joker check in and out like he’s doing shift work, they probably wouldn’t be liable if a third party, namely Bane, decided to blow up the building.
Under more “normal” circumstances though, it’s likely that Arkham would be liable to the state for any money the state had to spend in rounding up escaped inmates. Batman probably helps keep costs down here somewhat, but police overtime and workers compensation adds up pretty quickly. This is why Arizona (and presumably other states) require private prison operators to put up money for this sort of thing, including the purchasing of insurance, in advance.
So, viewing Arkham as a species of private “prison,” it seems that its operators would be required to abide by constitutional restrictions about care of prisoners, but would not enjoy immunity from liability, as they would not actually be state entities. If the contractual relationship, by itself, made them such, anyone who sold anything to the state would gain sovereign immunity for losses related to those transactions, and that’s obviously not the right result. But even in the absence of immunity, it might be hard to hold them liable, as there are number of theories which, depending on the facts of the story, might preclude it. That certainly seems to be true in Knightfall, where Bane attacks the facility with heavy weapons, something the operators of Arkham probably had no duty to guard against.