dissenting:
Nothing divides this court like a section 1983 case. Although I join Judge Johnson’s dissent, I write separately to lament the sorry state of the law under section 1983 that the fragmented decisions of this and the Supreme Court reflect.1
I.
I respectfully disagree with the plurality’s opinion that the private defendants in this case are entitled to qualified immunity. I believe that the plurality is wrong in even considering the issue of qualified immunity for private defendants under section 1983. I am particularly concerned because much of the case law under section 1983 is confused or misguided, and no longer corresponds to the reasons Congress enacted section 1983 in the first place.
The present law under section 1983 requires that federal courts inquire into the *1336existence of municipal policies and customs, determine whether there has been a violation of the federal constitution by evaluating the adequacy of state remedies, and decide whether or not the ancient doctrine of the infallibility of kings extends to middle-level public officials and private parties in a twentieth century democracy. These seem to me to be the wrong questions to ask about a civil rights statute enacted to enforce the provisions of the fourteenth amendment. See Monell v. Department of Social Servs., 436 U.S. 658, 665, 98 S.Ct. 2018, 2023, 56 L.Ed.2d 611 (1978); Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475, 5 L.Ed.2d 492 (1961). Instead, I believe we should ask what kinds of constitutional wrongs Congress designed section 1983 to reach, and decide for which constitutional wrongs section 1983 should provide a federal remedy.
II.
I understand the need to corral the explosion of cases brought into federal court under section 1983. Certainly not every prisoner case involving a negligently lost hobby kit or a neglected pillow belongs in federal court. Responding to the vast increase in these types of section 1983 cases, the Supreme Court, in a series of result-oriented decisions, has developed several approaches and doctrines designed to restrict the scope of section 1983. Although these cases have barred certain kinds of actions previously brought under section 1983, I believe that they have failed to limit the scope of section 1983 to the appropriate situations.
A.
The attempts to restrict section 1983 have centered generally on how to distinguish between causes of action “commonly thought to state a claim for a common-law tort normally dealt with by state courts,” Parratt v. Taylor, 451 U.S. 527, 533, 101 S.Ct. 1908, 1911, 68 L.Ed.2d 420 (1981), and those that rise “to the level of constitutional tort.” Jackson v. City of Joliet, 465 U.S. 1049, 1051, 104 S.Ct. 1325, 1325, 79 L.Ed.2d 720 (1984) (White, J., dissenting from denial of certiorari). Courts and scholars have labored to distinguish constitutional tort actions, worthy of a federal forum, from ordinary tort actions couched in constitutional terms, which do not belong in federal court. Bandes, Monell, Parratt, Daniels, and Davidson: Distinguishing a Custom or Policy from a Random, Unauthorized Act, 72 Iowa L.Rev. 101, 102 (1986).
One attempt to make this distinction borrows from tort law the concepts of mere negligence, gross negligence and intent, and tries to distinguish constitutional torts from ordinary torts on the basis of the culpability of the actors. Early decisions of the former Fifth Circuit wrestled with this approach. See, e.g., York v. City of Cedartown, 648 F.2d 231, 232-33 (5th Cir. Unit B 1981) (facts do not support claims of negligence and nuisance and therefore do not rise to an “abuse of governmental power” required to raise an ordinary tort claim to the level of a constitutional violation); Jones v. Diamond, 636 F.2d 1364, 1380-81 (5th Cir. 1981) (in banc) (had individual claims been presented under section 1983, it would have been necessary to examine the nature of the right asserted, apply standards for liability under section 1983, and afford defendants an opportunity to plead official immunity), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981); Williams v. Kelley, 624 F.2d 695, 697-98 (5th Cir.1980) (question of whether defendants’ conduct was “sufficiently egregious as to be ‘constitutionally’ tortious” is resolved by looking to principles of official immunity, and negligence is not enough), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. Unit A Jan. 1981) (determining when physical tort amounts to a section 1983 action involves inquiry into the amount of force used compared to the need presented, the extent of injury inflicted and the motives of the state officer).
The issue of what standard of care applies to section 1983 actions has remained a major theme. The Supreme Court repeatedly has addressed the issue of wheth*1337er mere negligence will support a claim for relief under section 1983, or whether some higher standard is required. See Parratt, 451 U.S. at 532-33, 101 S.Ct. at 1911-12; see also Rizzo v. Goode, 423 U.S. 362, 385 & n. 2, 96 S.Ct. 598, 611 & n. 2, 46 L.Ed.2d 561 (1976) (Blackmun, J., dissenting) (raising but not resolving the issue of whether negligent failure to supervise will support a section 1983 action for damages). The Supreme Court has resolved the issue only partially, by holding in the Parratt line of cases that negligent acts of officials that cause unintentional losses do not amount to procedural due process violations, and hence are not actionable under section 1983. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). Other standard of care issues under section 1983 have never been resolved by the Supreme Court, See Daniels, 106 S.Ct. at 667 n. 3; see also Gilmere v. City of Atlanta, 774 F.2d 1495, 1503-04 & nn. 8, 9 (11th Cir.1985) (there exists substantial disagreement as to whether gross negligence can suffice under section 1983 to establish municipal liability).
In any event, this approach has never been satisfactory. Although the Supreme Court has written that “the difference between one end of the spectrum — negligence —and the other — intent—is abundantly clear,” Daniels, 106 S.Ct. at 667, the middle of the spectrum is not so clear. Id.; cf. Davidson, 106 S.Ct. at 675 (Blackmun, J., dissenting) (finding that recklessness is sufficient and doubting the district court’s conclusion that the prison officials were not reckless). Even if the lines were clear, I do not believe that culpability quantification serves to differentiate constitutional torts from ordinary torts in a meaningful way. Determining whether, for example, a standard automobile collision ease belongs in state or federal court on the basis of whether the driver was negligent or reckless does not strike me as a good way to think about the problem. I believe therefore that this approach is unfit for analyzing section 1983 actions.
B.
The Supreme Court also has attempted to curb the abuse of section 1983 by exploring the contours of municipal liability under the statute. In Monell, the very case that exposed municipalities to section 1983 liability by reversing the contrary holding of Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961), the Supreme Court introduced the “policy or custom” test for determining under what circumstances a municipality can be sued under section 1983. Ten years later, the Supreme Court is still struggling with this approach, and the lower federal courts have been left with the nearly impossible task of determining what kinds of government actions amount to a policy or custom.
The Supreme Court held in Monell that “it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” 436 U.S. at 694, 98 S.Ct. at 2037. The obvious problem with this test is the word “fairly,” and the inherent vagueness of the terms “policy” and “custom.” Justice Powell recognized in Monell that there were “substantial line-drawing problems in determining ‘when execution of government’s policy or custom’ can be said to inflict constitutional injury such that ‘government as an entity is responsible under § 1983.’ ” 436 U.S. at 713, 98 S.Ct. at 2047 (Powell, J., concurring).2
Despite many efforts by the Supreme Court, I believe that these intractable line-drawing problems have never been surmounted, and indeed may be unsolvable. I find the concept of requiring an official policy to be “the moving force” behind a *1338constitutional violation to be particularly difficult. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 2434, 85 L.Ed.2d 791 (1985); Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981); Monell 436 U.S. at 694, 98 S.Ct. at 2037. The Monell doctrine also has proven to be particularly unsuitable to cases involving “isolated acts by government officials and employees.” City of St. Louis v. Praprotnik, — U.S. -, 108 S.Ct. 915, 923, 99 L.Ed.2d 107 (1988) (plurality opinion); see Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Tuttle, 105 S.Ct. 2427 (1985). In this context the Mo-nell policy or custom approach has generated such inquiries as “whether a policymaker’s ‘gross negligence’ in establishing police training practices [can] establish a ‘policy’ that constitutes a ‘moving force’ behind subsequent unconstitutional conduct, or whether a more conscious decision on the part of the policymaker [is] required.” Tuttle, 105 S.Ct. at 2436 n. 7.
These kinds of inquiries have carried the law of section 1983 far from the purpose of that statute. As Justice Stevens has noted, “the issue has apparently become, not the purpose and scope of 42 U.S.C. § 1983, but the nature of the liability ‘envisioned’ by this court ‘in Monell’ ” Pembaur, 106 S.Ct. at 1302 n. 1 (Stevens, J., concurring in part and concurring in the judgment) (quoting id. at 1304 (O’Connor, J., concurring in part and concurring in the judgment)). The word “policy” does not appear in the text of section 1983, 106 S.Ct. at 1302 (Stevens, J., concurring in part and concurring in the judgment), and I do not believe Congress had a municipal policy requirement in mind when it enacted section 1983.
The policy or custom approach thus has been unsuccessful in serving as a proper limit on the scope of section 1983. I cannot agree with the statement in Justice Brennan’s opinion in Tuttle that “[s]ince Mo-nell, of course, the contours of municipal liability have become substantially clearer.” Tuttle, 105 S.Ct. at 2437 n. 1 (Brennan, J., concurring in part and concurring in the judgment). Nor can I agree with the statement by the Tuttle majority that although the Supreme Court “has decided a host of cases under [section 1983] in recent years, it can never hurt to embark” on more statutory interpretation. Id. at 2432. I believe that the Supreme Court’s statutory interpretation of section 1983 has hurt, by generating a great deal of confusing litigation and doctrinal turmoil. Rather than refining these principles, as the Supreme Court has indicated it may do in the future, see Praprotnik, 108 S.Ct. at 926 (plurality opinion), I hope that the Court will choose to abandon the Monell policy or custom approach.
C.
Faced with the possibility of section 1983 extending all the way out to an accidental twenty-three dollar property loss case, the Supreme Court in 1981 put its “shoulder to the wheel” once again to help delineate between constitutional torts and ordinary torts. Parratt v. Taylor, 451 U.S. 527, 533-34, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). Although the Court held that negligence will support a cause of action under section 1983, id. at 536-37, 101 S.Ct. at 1913-14,3 the Court also held that there is no procedural due process violation under the fourteenth amendment if the state provides a constitutionally adequate remedy for the negligent property deprivation. Id. at 537-44, 101 S.Ct. at 1913-17.
The decision was clearly a reaction to the concerns noted by Justice Powell in his dissent: “The present case, involving a $23 loss, illustrates the extent to which constitutional law has been trivialized, and federal courts often have been converted into small-claims tribunals.” Id. at 554 n. 13, 101 S.Ct. at 1922 n. 13 (Powell, J., concurring in the result). I am entirely sympa-. thetic to these concerns. The effort, however, in Parratt and subsequent cases to *1339address these concerns by considering the adequacy of state law remedies is wholly unwarranted and unrelated to the reasons Congress enacted section 1983.
Congress assumed the availability of state remedies when it enacted the Civil Rights Act of 1871.
[T]he legislative history of § 1983’s predecessor makes clear that Congress intended to alter the federal-state relationship with respect to the protection of federal rights. “The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights.” Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972). In particular, Congress intended “to provide a federal remedy where the state remedy ... was not available in practice.” Monroe v. Pape, 365 U.S., at 174, 81 S.Ct., at 477.
Davidson, 106 S.Ct. at 676 (Blackmun, J., dissenting) (emphasis added). There were state law remedies on the books when Congress enacted section 1983. Congress was not attempting to fill gaps in these state remedies. Rather, Congress intended to provide a federal remedy for constitutional deprivations, regardless of what state law provided.
The existence of a state remedy is irrelevant in determining what kinds of wrongs section 1983 should redress. As Justice Blackmun recognized in his opinion in Par-ratt: “The mere availability of a subsequent tort remedy before tribunals of the same authority that, [through] its employees, deliberately inflicted the harm complained of, might well not provide the due process of which the Fourteenth Amendment speaks.” 451 U.S. at 546, 101 S.Ct. at 1918 (Blackmun, J., concurring); see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 436-37, 102 S.Ct. 1148, 1158-59, 71 L.Ed.2d 265 (1982) (post-deprivation remedy is constitutionally inadequate where the only process comes in the form of an independent tort action).4
I recognize that the Parratt doctrine applies primarily to procedural due process claims, and not to substantive due process and most other kinds of constitutional claims brought under section 1983.5 See Burch v. Apalachee Community Mental Health Services, 840 F.2d 797, 803 (11th Cir.1988) (Johnson, Circuit Judge, specially concurring); Gilmere, 774 F.2d at 1499-1500. Nevertheless, I believe that the introduction of the adequacy of state remedies into section 1983 analysis, even primarily limited to procedural due process violations, conflicts with the purposes of section 1983. “Conduct that is wrongful under § 1983 surely cannot be immunized by state law.” Davidson, 106 S.Ct. at 676 (Blackmun, J., dissenting). I believe that the Supreme Court should reevaluate the applicability of the Parratt doctrine to section 1983.
D.
A fourth major assault on the expansion of section 1983 involves the issue of immunity for government officials. Although the Supreme Court has held that municipalities have no immunity from damages liability flowing from constitutional violations under section 1983, Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 1418, 63 L.Ed.2d 673 (1980), the Court has held that many government officials do have some kind of immunity. See, e.g., Anderson v. Creighton, — U.S. —, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (federal law enforcement officers conducting unconstitutional searches have good faith immu*1340nity); Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) (judges have absolute immunity from suits for damages, but no immunity from suits for injunctive relief); Briscoe v. Lahue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (police officers giving perjured testimony have absolute immunity); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (presidential aides have good faith immunity); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (prosecutors acting in official capacity have absolute immunity); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (school officials have good faith immunity); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (governors have good faith immunity)-
The historical principle of sovereign immunity, the “somewhat arid fountainhead for municipal immunity,” Owen, 445 U.S. at 645, 100 S.Ct. at 1412, “stems from the personal immunity of the English Monarch as expressed in the maxim, ‘The king can do no wrong.’ ” Id. at 645 n. 28, 100 S.Ct. at 1412 n. 28; see Duncan v. Peck, 844 F.2d 1261, 1264 (6th Cir.1988); see also Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F.2d 354, 357 (2d Cir.1964) (doctrine of sovereign immunity “originated in an era of personal sovereignty, when kings could theoretically do no wrong”), cert. denied, 381 U.S. 934, 85 S.Ct. 1763, 14 L.Ed.2d 698 (1965). This rationale for governmental immunity obviously has no relevance today. The Supreme Court, however, has analyzed contemporary immunity issues on the assumption that common law principles of immunity have been incorporated into our judicial system absent clear legislative intent to the contrary. Pulliam, 466 U.S. at 529, 104 S.Ct. at 1974. Thus whether absolute or good faith immunity under section 1983 extends to a particular governmental unit or official depends on the state of the common law in 1871 when Congress enacted the statute. See id. at 529-36, 104 S.Ct. at 1974-78; Owen, 445 U.S. at 635-47, 100 S.Ct. at 1407-13.
It is debatable whether trying to divine the common law as it existed in the various states over a century ago is a good approach. See, e.g., Anderson, 107 S.Ct. at 3041 (“we have never suggested that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law”); Smith v. Wade, 461 U.S. 30, 93, 103 S.Ct. 1625, 1659, 75 L.Ed.2d 632 (1983) (O’Con-nor, J., dissenting) (“the battle of string citations can have no winner”). In any event, lacking Congressional guidance, it is clear that courts have created governmental immunities where there exist sound policy reasons to do so. See Harlow, 457 U.S. at 813 n. 20, 102 S.Ct. at 2735 n. 20; Nixon v. Fitzgerald, 457 U.S. 731, 748, 102 S.Ct. 2690, 2700, 73 L.Ed.2d 349 (1982); Owen, 445 U.S. at 637, 100 S.Ct. at 1408.
I can see no sound policy reason to give good faith immunity to private defendants in section 1983 actions. As Judge Johnson convincingly shows in Part I of his dissenting opinion in this case, the plurality’s alleged “powerful policy considerations” supporting such immunity for private individuals are irrelevant to section 1983, the statute at issue in this case. The genesis of this misguided notion of providing good faith immunity to private parties is in the last footnote of the majority opinion in Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Responding to Justice Powell’s concern over private individuals who innocently make use of apparently valid state laws later held unconstitutional, Justice White wrote for the majority:
In our view ... this problem should be dealt with not by changing the character of the cause of action, but by establishing an affirmative defense. A similar concern is at least partially responsible for the availability of a good-faith defense, or qualified immunity, to state officials. We need not reach the question of the availability of such a defense to private individuals at this juncture.
Id. at 942 n. 23, 102 S.Ct. at 2756 n. 23. Whatever this passage reveals about how *1341the Supreme Court will rule on the issue,61 believe that there is no valid basis in nineteenth century common law or contemporary public policy for the plurality’s holding. Accord, Duncan v. Peck, 844 F.2d at 1266.
The decision to give private individuals good faith immunity under section 1983 is yet another manifestation of the underlying frustration federal courts have felt about section 1983 in the last decade or so. Once again, I stress that I share this frustration, but the plurality’s approach is simply a legally incorrect way to go about remedying the situation. Contrary to the assertions of the plurality, today’s opinion comports with neither the text, the purpose, nor the general development of the law under section 1983. See ante at 1344 n. 6. (Johnson, Circuit Judge, dissenting). Extension of good faith immunity to private defendants is nothing more than a striking display of judicial activism.7 As Judge Johnson demonstrates, “[t]here is no justification for this extension of the qualified immunity doctrine.” Ante at 1343 (Johnson, Circuit Judge, dissenting). The plurality asks a bad question, and gets a bad result.
III.
There are too many section 1983 cases in federal court that do not belong in federal court. There is now a large enough body of case law so that we understand the nature of the problem. I have not attempted to present solutions to all the inadequacies in the law under section 1983. I simply lament these inadequacies in the hope that the Supreme Court will undertake a wholesale reevaluation of current law. I believe that the Supreme Court should address these problems by developing a new framework for deciding what kinds of harms amount to constitutional torts under the statute.8
I believe that the issues and the result reached by the court in this case, are all wrong. I therefore respectfully dissent.
JOHNSON, Circuit Judge, dissenting, in which VANCE, KRAVITCH, HATCHETT and CLARK, Circuit Judges, join.
The majority holds that Preuit & Mauldin (“P & M”) and the other private defendants in this case1 are entitled to assert a defense of qualified immunity to Jones’ damages action brought pursuant to 42 U.S.C. A. § 1983. I find no justification for allowing private defendants to assert such a defense. Moreover, even assuming ar-guendo that a qualified immunity defense is available to some private defendants, I disagree that P & M successfully established such a defense. Accordingly, I dissent.
I.
Both the Supreme Court and this Circuit have expressly reserved the question of whether private actors in a Section 1983 action are entitled to the qualified immuni*1342ty available to state actors. Lugar v. Edmondson Oil Co., 457 U.S. 922, 942 n. 23, 102 S.Ct. 2744, 2756 n. 23, 73 L.Ed.2d 482 (1982); I.A. Durbin, Inc. v. Jefferson National Bank, 793 F.2d 1541, 1550 n. 11 (11th Cir.1986). The circuits that have addressed this issue have reached opposite conclusions. The First and Ninth Circuits have held that private actors are not entitled to qualified or “good faith” immunity, Howerton v. Gabica, 708 F.2d 380, 385 n. 10 (9th Cir.1983); Downs v. Sawtelle, 574 F.2d 1, 15-16 (1st Cir.), cert. denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 255 (1978), while the Fifth and Eighth Circuits have held that such immunity for private defendants exists. Buller v. Buechler, 706 F.2d 844, 850-53 (8th Cir.1983); Folsom Investment Co. v. Moore, 681 F.2d 1032, 1037-38 (5th Cir. Unit A 1982). I believe that an examination of the immunity doctrine demonstrates that the First and Ninth Circuits are correct in holding that private defendants are not entitled to qualified immunity.
Section 1983 provides that every person who acts under color of state law to deprive another person of a constitutional right shall be liable to that person for damages.2 On its face, Section 1983 “admits of no immunities.” Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128 (1976). Nonetheless, the Supreme Court has reasoned that in enacting Section 1983, Congress did not intend to supplant traditional immunities embedded in the common law. Therefore, if an immunity was firmly established in the common law when Congress enacted Section 1983 and if strong policy reasons support its continued use, the immunity is available under Section 1983. Owen v. City of Independence, 445 U.S. 622, 637-38, 100 S.Ct. 1398, 1408-09, 63 L.Ed.2d 673 (1980); Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). However, courts cannot engraft new immunities onto the statute. Tower v. Glover, 467 U.S. 914, 922-23, 104 S.Ct. 2820, 2825-26, 81 L.Ed.2d 758 (1984). Nor can courts recognize traditional immunities that eviscerate the policies of Section 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258-59, 101 S.Ct. 2748, 2755-56, 69 L.Ed.2d 616 (1981). Rather, Section 1983 immunity is “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” Owen, 445 U.S. at 638, 100 S.Ct. at 1409 (quoting Imbler, 424 U.S. at 421, 96 S.Ct. at 990).
The majority identifies no immunity that P & M would have enjoyed at common law. Instead, it argues that, at the time of Section 1983’s enactment, the common law recognized a defense of “good faith and probable cause” to tort actions brought for wrongful attachment or malicious prosecution. Citing Wood v. Strickland, 420 U.S. 308, 318-19, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975), and Pierson, 386 U.S. at 555-57, 87 S.Ct. at 1218-19, the majority asserts that the Supreme Court has held that the existence of a common law defense of good faith and probable cause supports the availability of qualified immunity under Section 1983. Maj. op. at 1324. However, Wood extended qualified immunity to school board members because of common law tradition and “strong public policy reasons.” 420 U.S. at 318, 95 S.Ct. at 999. The policy rationale for extending qualified immunity to these state officials was that, in the school disciplinary process, school board members functioned “in the nature of legislators and adjudicators.”3 Id. at 319, 95 S.Ct. at 999. Because “[e]ach of these functions necessarily involves the ex*1343ercise of discretion, the weighing of many factors and the formulation of long-term policy,” id., the Wood Court concluded that school board members were entitled to qualified immunity. See id. at 319-21, 95 S.Ct. at 999-1000. In addition, the Court noted that, if school board members did not have qualified immunity, they would be deterred from acting forcefully and decisively in the long-term interest of the schools. Id. at 319-20, 95 S.Ct. at 999-1000.
None of these factors is present in the case at bar. Unlike public officials, private defendants do not exercise official discretion, nor do they formulate policy. Public officials receive qualified immunity so that they will not be deterred from exercising the discretion accorded them, and so that able citizens will not be deterred from accepting public office. Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982); Wood, 420 U.S. at 319-20, 95 S.Ct. at 999-1000. Qualified immunity serves the additional public purposes of encouraging the vigorous exercise of public authority while shielding officials from undue interference with their duties. Harlow, 457 U.S. at 806-07, 102 S.Ct. at 2731-32; Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2910, 57 L.Ed.2d 895 (1978). In short, qualified immunity is intended to protect the public office as opposed to the public officer. See Harlow, 457 U.S. at 814, 102 S.Ct. at 2736. Cf. Sparks v. Duval County Ranch Co., 604 F.2d 976, 979 (5th Cir.1979) (en banc) (“absolute immunity that judges enjoy exists for the benefit of the judicial system and of the public, not for that of the judge”), aff'd sub nom. Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980).
Despite the fact that the defendants in this case do not occupy public office and are not accorded any public discretion or policy-making authority, the majority concludes that they are entitled to qualified immunity. There is no justification for this extension of the qualified immunity doctrine. “Private parties simply are not confronted with the pressures of office, the often split-second decisionmaking or the constant threat of liability facing public officers, governors and other public officials.” Downs, 574 F.2d at 15.
Because none of the policy considerations which support the qualified immunity doctrine is present in this case, the majority creates its own policy rationale for providing private actors with qualified immunity. It argues that citizens should not be exposed to liability based on their use of a state statutory attachment procedure.4 While the simplicity of this suggestion may be appealing, the majority errs by proposing its own policy justification for extending qualified immunity to private defendants. See id. at 15-16. (“Whatever factors of policy and fairness militate in favor of extending some immunity to private parties acting in concert with state officials were resolved by Congress in favor of those who claim a deprivation of rights.”)
The Supreme Court has prohibited the mode of judicial policy-making adopted by the majority. The Court has said, “We do not have a license to establish immunities from § 1983 actions in the interests of what we judge to be sound public policy. It is for Congress to determine whether § 1983 litigation has become too burdensome to state or federal institutions and, if so, what remedial action is appropriate.” Tower, 467 U.S. at 922-23, 104 S.Ct. at 2825-26.5
*1344Although the majority’s policy arguments may be appealing in the instant case, this Court is not free to extend qualified immunity to private defendants unless the policies behind the qualified immunity doctrine would be furthered by this holding. Because no public office or official discretion is protected here, I would hold that the defendants are not entitled to qualified immunity.6
II.
Even assuming arguendo that private parties should be entitled to qualified immunity in Section 1983 actions, P & M has not established its right to the defense here. Qualified immunity is not available if the defendants reasonably should have known that their conduct violated Jones’ clearly established constitutional right. See Anderson v. Creighton, — U.S. —, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. In this case, established precedent indicated that the attachment procedure used by P & M was unconstitutional. Nonetheless, the majority concludes that P & M did not violate clearly established constitutional rights of which a reasonable person should have known. After discussing the four major Supreme Court attachment cases, the majority asserts that P & M is entitled to good faith immunity because the defendants’ actions were arguably commensurate with the safeguards required by Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). While I agree that Mitchell establishes the standard against which attachments should be measured, the attachment procedure utilized by P & M does not comport with the procedure upheld in Mitchell. Therefore, even under a qualified immunity analysis, I would hold that P & M violated Jones’ clearly established constitutional rights because the attachment procedure it employed did not provide Jones with presei-zure notice and a hearing.7
*1345In Mitchell, the Supreme Court held that preseizure notice and a hearing were not required if the attachment procedure satisfied four requirements. These requirements include: (1) the creditor must file an affidavit setting forth the specific facts entitling him to relief; (2) the creditor must post a bond to compensate the debtor for any damages resulting from a wrongful attachment; (3) the writ of attachment can be issued only by a judge with discretion to deny the writ; and (4) the debtor must be entitled to an immediate postseizure hearing at which the creditor must prove his entitlement to the writ. All these safeguards were not present here.
First, the judge who issued the writs of attachment in the instant case was not vested with sufficient discretion to satisfy the dictates of Mitchell. Specifically, he could not inquire into the veracity of P & M’s allegations made in its affidavit seeking the writs. As the majority indicates, the attachments here were obtained under Alabama’s mechanic’s lien statute. Alabama Code § 85-11-110 creates a lien in favor of a repairman against any vehicle he repairs, and Alabama Code § 35-11-111 outlines the procedures for enforcing that lien by attachment. Although Section 35-11-111 requires both the filing of an affidavit setting forth the plaintiff’s entitlement to relief and the posting of a bond payable to the defendant in case of a wrongful attachment, that section does not specify who is authorized to issue the writ. Instead, it provides only that the writ is to be issued “by any officer authorized to issue such writs.” Id. Therefore, in order to determine who can issue such a writ and what discretion the issuing officer possesses, resort must be had to the provisions of Alabama’s general attachment statute. Those provisions authorize a circuit court judge to issue a writ of attachment. Ala. Code § 6-6-43. However, nothing in those provisions authorizes a circuit court judge to go behind a creditor’s allegations in order to determine their validity. In actions involving either the seizure of property under the detinue statute or the enforcement of a security interest, Ala.R.Civ.P. 64(b) mandates a judicial inquiry into the facts supporting the need for an attachment without prior notice. However, both Rule 64 and its Committee Comments indicate that the special procedures established therein apply only to actions in detinue or in enforcement of a security interest and that those procedures are in addition to the procedures required under the general attachment statute.8 Consequently, in issuing a writ of attachment under Section 35-11-111, the circuit court judge’s function is solely to determine the adequacy of the plaintiff’s allegations. If the facts as alleged would entitle the plaintiff to relief, the judge must issue the writ. He cannot determine whether the allegations are in fact true.
Such limited “discretion” fails to provide the meaningful judicial participation contemplated in Mitchell. The safeguards outlined in Mitchell are a substitute for prior notice and hearing because, like pre-seizure notice, they protect debtors against “abuse by creditors without valid claims.” 416 U.S. at 614, 94 S.Ct. at 1903. Therefore, judicial participation in issuing a writ of attachment does not provide a substitute for preseizure notice unless that participation helps “minimize the risk that the ex parte procedure will lead to a wrongful taking.” Id. at 617, 94 S.Ct. at 1905. Judicial participation does not meaningfully reduce the risk of a wrongful attachment unless the judge can, if necessary, inquire into the truthfulness of the creditor’s allegations. Otherwise, the judge’s involvement would amount to nothing more than the very type of ministerial determination that the Supreme Court has struck down as insufficient to provide due process when performed by a clerk. See North Georgia Finishing, Inc. v. Di-Chem, 419 U.S. 601, 606-07, 95 S.Ct. 719, 722-23, 42 L.Ed.2d 751 (1975). This is not to say, however, that a judge must put every creditor to his proof or that a creditor, prior to issuance of *1346a writ of attachment, must prove his claim by a preponderance of the evidence. Rather, the judge must possess the ability, in the exercise of his discretion, to require more proof from the creditor than the creditor's affidavit in deciding whether to issue a writ of attachment without prior notice to the debtor. For example, under certain circumstances the judge may wish to examine the documents giving rise to the creditor’s interest in the property. If such proof is not forthcoming, the judge should be able to deny issuing the writ until the debtor is provided notice and an opportunity for a hearing.
The majority reads Mitchell as requiring no more from the judge than that he determine the facial sufficiency of the allegations. They base their reading on the ground that the state sequestration statute upheld in Mitchell allowed the judge to issue the writ “only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by verified petition or affidavit.” 416 U.S. at 616, 94 S.Ct. at 1904. However, nothing in that statute prohibited the court from requiring additional proof. Furthermore, the Court emphasized in Mitchell that a preseizure hearing was unnecessary because the issues involved in that case— the existence of a vendor’s lien and the purchaser’s default — were particularly suited for documentary proof. Id. at 617-18, 94 S.Ct. at 1905-06. A claim that is amenable to documentary proof helps reduce the risk of a wrongful attachment only if the court issuing the writ can examine any supporting documents. In the instant case, the state circuit court judge had no discretion to scrutinize any documents that may have existed.
The second major safeguard which appeared in the statutory scheme in Mitchell, but which is not part of the Alabama statute, is an immediate postseizure hearing at which the debtor could challenge the attachment and require the creditor to prove the grounds for the seizure. Id. at 618, 94 S.Ct. at 1905. The Alabama statute only allows the debtor to bring a damages action on the creditor’s bond. This is not the same as an immediate postseizure hearing because it does not require the creditor to prove his grounds for the attachment, and it does not provide for a method to dissolve the attachment.
In Di-Chem, the Supreme Court recognized that the immediate postseizure hearing which was available in Louisiana was a significant factor distinguishing Mitchell from Di-Chem. See Di-Chem, 419 U.S. at 607, 95 S.Ct. at 722. In the case at bar, the majority contends that Jones could have brought a common law action to dissolve the attachment; however, Di-Chem emphasized that the lack of statutory safeguard distinguished it from Mitchell. Likewise, the lack of statutory post-attachment hearing at which the creditor is required to prove his grounds for the attachment distinguishes the Alabama statute from the one in Mitchell.
The predecessor to this Court recognized that Mitchell and Di-Chem require the “participation of a judicial officer, specific factual allegations of entitlement, and access to an ‘immediate’ post-seizure hearing.” Johnson v. American Credit Co. of Georgia, 581 F.2d 526, 534 n. 16 (5th Cir. 1978) (citation omitted). The Alabama attachment statute does not sufficiently satisfy these requirements; therefore, P & M’s attachment did not comport with due process. Because the attachment procedure used by P & M was not commensurate with the Mitchell safeguards, P & M violated Jones’ clearly established constitutional rights.
III.
The majority also affirms the district court’s denial of Jones’ motion for partial summary judgment on the issue of the constitutionality of the Alabama attachment statute. The majority states that Jones did not have standing to challenge the provision of the statute that authorizes a nonjudicial officer to issue a writ of attachment because a state circuit court judge issued the writ in this case. While I do not dispute the correctness of this statement of law, it amounts to a straw man. *1347The majority fails to address Jones’ arguments concerning the statute’s additional shortcomings. As discussed more fully above, the statute fails to provide that the judge who issues the writ has discretion to scrutinize the creditor’s allegations, and the statute does not provide for an immediate postseizure hearing at which the debtor can challenge the writ. Because the Alabama attachment statute does not include these two vital provisions, it fails to comport with the requirements of Di-Chem and Mitchell. Consequently, as the district court held in Wiggins v. Roberts, the statute is unconstitutional. I would therefore hold that the district court abused its discretion in failing to grant Jones’ motion for partial summary judgment.
IV.
In sum, I believe that the majority exceeds this Court’s role by extending qualified immunity to private defendants based on the majority’s view of the appropriate policy considerations. Moreover, policy aside, good faith immunity for P & M is not warranted by the facts of this case. Therefore, I would reverse the district court’s order granting summary judgment to the defendants.9 Because the Alabama attach*1348ment statute is unconstitutional, I would also reverse the portion of the district court’s order denying Jones’ motion for partial summary judgment.
. See, e.g., Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (six opinions); Burch v. Apalachee Community Mental Health Serv., Inc., 840 F.2d 797 (11th Cir. 1988) (in banc) (six opinions); Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.1985) (in banc) (six opinions), cert. denied, 476 U.S. 1124, 106 S.Ct. 1993, 90 L.Ed.2d 654 (1986).
. The only theory of liability ruled out by the Supreme Court in Monell was respondeat superi- or. Monell, 436 U.S. at 691-92 & n. 57, 98 S.Ct. at 2036 & n. 57. As later cases quickly showed, however, the Supreme Court’s choice of "official policy" as the alternative to respondeat superior offered "no simple solution to the problem of delineating what is the municipality’s responsibility and what is the individual employee’s.” Whitman, 85 Mich.L.Rev. 225, 244 (1986).
. The Supreme Court subsequently reversed this holding in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986). Thus the doctrine introduced in Parratt and extended to intentional deprivations of property in Hudson v. Palmer, 468 U.S. 517, 534, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984), would no longer apply to Parratt.
. The delicate balance between federal and state sovereignty would break down if litigants claiming deprivations by a governmental entity were confined to whatever redress the entity chose to provide, and were barred from an independent determination of their federal rights by a federal forum. The states would become the ultimate arbiters of the availability and scope of federal rights; a result at odds with the post-Reconstruction federalist order. Bandes, supra, at 115 (footnotes omitted).
. The Supreme Court has indicated that Parratt applies to section 1983 cases involving the Just Compensation Clause of the fifth amendment. See Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195, 105 S.Ct. 3108, 3121, 87 L.Ed.2d 126 (1985).
. At least three justices in Lugar agreed with the proposition that good faith immunity for private individuals under section 1983 is a positive suggestion. See Lugar, 457 U.S. at 956 n. 14, 102 S.Ct. at 2763 n. 14 (Powell, J., dissenting).
. The plurality opinion states:
' In the same way that we wish to encourage citizens to undertake public service, so must we encourage them to settle their differences and assert their claimed rights through the employment of legal mechanisms which they believe, in good faith, are constitutional.
This kind of statement belongs on the floor of Congress, not in a judicial opinion. As Judge Johnson points out, the Supreme Court has prohibited precisely this kind of judicial policy-making under section 1983. See ante at 1343 & n. 5 (Johnson, Circuit Judge, dissenting).
.One possibility is to move away from trying to define constitutional wrongs as a "particularly egregious subcategory of torts,” and instead analyze section 1983 in terms of "the special problems created by the massing of power in institutions.” Whitman, supra note 2, at 275. Several justices have hinted at this approach: "A deprivation must contain some element of abuse of governmental power, for the ‘touchstone of due process is protection of the individual against arbitrary action of government.’ ” Davidson, 106 S.Ct. at 673 (Blackmun, J., dissenting) (quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974)).
. Subsequent references to P & M are intended to apply to the other private defendants as well.
. Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
. Legislators and judges are entitled to absolute immunity in a Section 1983 action. See Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (legislators); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (judges).
. The majority also argues that private defendants should not be exposed to greater liability than public defendants. However, the Supreme Court rejected this argument in other contexts. For example, in Dennis v. Sparks, the Court held that a private defendant who had conspired with a judge was not entitled to immunity from damages under Section 1983 even though the co-conspirator judge was immune. 449 U.S. at 31-32, 101 S.Ct. at 188.
. Although Tower involved the question of immunity from intentional misconduct, it is instructive of the Supreme Court’s approach to immunity problems. In Tower, the Court rejected policy arguments offered to justify an extension of immunity to public defenders employed by a state and county. The public defenders had argued that they were entitled to immunity because the threat of Section 1983 liability would deter public defenders from performing vital aspects of their jobs, and ultimately the state's duty to furnish criminal defendants with *1344effective counsel would be impaired. The petitioners also predicted that the federal courts would be inundated with frivolous lawsuits. The Supreme Court responded, "Petitioners' concerns may be well founded, but the remedy petitioners urge is not for us to adopt." 467 U.S. at 922, 104 S.Ct. at 2826. A similar conclusion is required in the present case because qualified immunity for private actors is not a remedy that this Court may create.
. I disagree with the majority’s suggestion that providing private citizens with qualified immunity is supported by the general development of Section 1983 law. The majority contends that prior to Lugar, the Supreme Court did not recognize that private defendants could be “state actors"; therefore, there was no need to discuss the immunity of these private actors. The implication of this statement is that qualified immunity for private actors is a natural development proceeding from Lugar. This position ignores the fact that the Supreme Court attachment cases, which were decided prior to Lugar, all implicitly held that a private creditor's invocation of an attachment statute was state action. Otherwise, the Court never would have reached the due process question at issue in those cases. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). In fact, in Fuentes, the judgment ran against both the creditor and state officials. Although Fuentes involved only declaratory and injunctive relief, nothing in Fuentes suggested that the outcome would have been different if the debtor had asked for damages. See also Adickes v. S.H. Kress & Co., 398 U.S. 144-150-52, 90 S.Ct. 1598, 1604-06, 26 L.Ed.2d 142 (1970) (private party’s joint participation with state official in a conspiracy constituted state action allowing damages under Section 1983). Lugar does not mandate the extension of qualified immunity merely because it explicitly stated that private actors were proper defendants in a Section 1983 action. This Court must still examine the policies behind the qualified immunity doctrine.
. In an unpublished opinion issued six months prior to the attachment by P & M, the Alabama attachment statute had been declared unconstitutional. Wiggins v. Roberts, No. 75-M-1760 (N.D.AIa. Aug 31, 1978) (unpublished). In that case, the district judge stated that the unconstitutionality of the statute was obvious. Subsequent to the seizure in this case, the Wiggins ruling was incorporated into an opinion concerning an application for attorneys’ fees. Wiggins v. Roberts, 551 F.Supp. 57 (N.D.Ala.1982). In the second Wiggins opinion, a different district court judge noted that the first judge had found the Alabama statute clearly unconstitutional in light of Di-Chem, Mitchell, Fuentes, and Sniadach. Interestingly, the second Wiggins opinion was authored by the same district judge who ruled in this case that the unconstitutionality of the Alabama statute was not settled.
. P & M’s action to enforce its mechanic’s lien did not constitute either an action in detinue or an action to enforce a security interest. Therefore, P & M could not have proceeded under Rule 64(b).
. I also observe that Judge Tjoflat’s special concurrence would affirm the district court on the ground that P & M did not cause the injury suffered by Jones. Judge Tjoflat essentially argues that the unlawful attachment procedure, not P & M, deprived Jones of due process. A similar argument was presented in dissent in Lugar, 457 U.S. at 946-47, 102 S.Ct. at 2758-59 (Powell, J., dissenting). In his Lugar dissent, Justice Powell stated that a Section 1983 plaintiff had to demonstrate that the alleged unconstitutional deprivation was “caused" by a person acting under color of law. While the Lugar dissent focused on the state action issue, the causation inquiry was implicated as well. Justice Powell remarked that the state court clerk and the state sheriff had actually sequestered the property pursuant to the state attachment procedure (thereby causing the deprivation of property), but he emphasized that the debtor had not sued the state officials. Implicit in this discussion was the argument that the state officials, not the creditor, had actually caused the harm to the debtor. However, this contention did not prevail in Lugar, and Judge Tjoflat's analogous argument cannot prevail here.
Judge Tjoflat states that I have mistakenly concluded that Lugar eliminates the necessity of conducting a causation analysis. However, I do not contend that Lugar rejected traditional notions of causation in a Section 1983 action. Rather, I rely on Lugar for the proposition that a creditor who invokes a faulty state attachment procedure causes the unconstitutional deprivation. This is the principle of causation that controls the case at bar.
In Lugar, the creditor was represented by counsel who invoked the state attachment procedure on the creditor’s behalf. Neither the actions of the state officials, nor the fact that the creditor was represented by an attorney, broke the causal link between the creditor’s invocation of the attachment procedure and the seizing of the debtor’s property. Nonetheless, Judge Tjoflat argues that P & M did not cause Jones’ injury because it hired an attorney to handle the collection of the debt, and it was allegedly unaware that the attorney would invoke the state attachment procedure. The first problem with this argument is that, even assuming that P & M’s attorney acted without any direction, guidance, or assistance from P & M, Judge Tjoflat’s argument is simply another version of the causation argument that did not prevail in Lugar. Lugar forecloses this argument because an attorney’s actions on behalf of a client, just like the state officials’ actions in carrying out the attachment, cannot break the chain of causation. Furthermore, as a policy matter, it makes no sense to allow a party to insulate itself from liability by hiring an attorney to do its bidding. The attorney in this case was clearly P & M’s agent and he clearly had authority to pursue P & M’s expressed goals. Therefore, Judge Tjoflat’s attempt to distinguish Lugar on the basis of the activity of the attorney in the instant case is unavailing. The fact that an attorney, rather than the client, actually invoked the state attachment procedure, is simply irrelevant.
The second problem with Judge Tjoflat’s opinion is that it rests on a questionable factual basis. Judge Tjoflat assumes that P & M had no knowledge of its attorney's actions. However, two of P & M’s key management personnel, Leonard Preuit Mauldin and Sherman Crisler, were closely involved in the attachment procedure with P & M’s attorney. In fact, Leonard Preuit Mauldin, the son of P & M's general partner, Edward Mauldin, submitted to the state court signed affidavits for attachment of each of Jones’ cotton pickers. Because Crisler and Preuit Mauldin had full authority to conduct the business of the partnership, they were, in effect, policy-makers of the partnership. Therefore, P & M is liable for their actions. Cf. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452 (1986) (municipal liability attaches where policy-making individual directs action complained of); Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1189 (7th Cir.1986) (single act of high-ranking policy-maker is sufficient to establish official policy for which municipality may be held liable). Judge *1348Tjoflat errs by failing to recognize this and by failing to recognize the ramifications of Lugar.