I disagree with the outcome of the Malesko case at the Supreme Court level. Indeed, in 5 against 4 votes the Supreme Court arrived at the decision that private action against Federal Officers violating constitutional rights of individuals could not be extended to include private corporations delivering the same duties under a contract by the government, in that case, the Bureau of Prisons. I personally find the reasoning of the learned judges as escapist and a defeat of the spirit of the laws. Foremost, it has to be appreciated that the holding in Bivens had expressly provided for the defense of the rights of citizens against infringement by Federal Officers. It needs to be appreciated that the spirit in that holding was not necessarily to hold the Federal Officers to account. Rather, the spirit was to ensure that the rights of the individuals was respected and not trampled upon. Indeed, that logic arises from the constitutionalist nature of the United States of America. This is the spirit that should have informed the reasoning and judgment of the learned judges. However, they chose to exempt to the defendant from liability merely because he was working under a contract with the Bureau of Prisons.
This merely places the burden on Federal Officers and in one way or another has the effect of lessening the burden imposed on the private providers under a government contracting. In the long run, it goes against the spirit of the law as was laid in the Bivens.
Under the facts, Malesko should have had the express and unlimited rights to bring a suit. This is predicated on the fact that he had been duly exempted and was allowed to use the elevators. This was a matter in the records and the officers in the correctional facilities should have been presumed to be knowledgeable of the circumstances. This is a reasonable and rational application. Otherwise it opens a Pandora’s Box for the infringement of the rights of prisons and the public by Federal Officers and or Officers discharging the functions otherwise discharged by Federal Officers. The assumption of knowledge is equally premised on the legal application that ignorance of the law and in this case policy cannot found a valid defense. The question on if he had been treated properly and he still got injured assumes a different answer. This is perhaps because the treatment is a material issue in this case. The suit was based on the fact of improper treatment to the extent of infringing on his rights. In that context, if he had been treated well and he still got injured he would not have any legal recourse.
It is often much harder to sue government employees as against private individuals because of the nature of public services that government employees often discharge. The services discharged by private employees are more often based on contracts. Any breach of the terms and or conditions automatically leads to litigation hence the ease of bringing suits. For the government employees, the rules of engagement often differ. First, no clear contract of service exists. Secondly, the assumption that government employees often exercise their discretion in the interest of the public and the general lack of information by public service subscribers often conspire to make suing government employees a difficult task.
Correctional Services Corp v Malesko, 00- 860 534- US 61 (Supreme Court of United States of America November 27, 2001).