George Floyd, Qualified Immunity, and the Quest for Justice

Crooked cops, politicians and bureaucrats share a common trait. All hide behind the protective veil of qualified immunity or executive immunity.

Under qualified immunity, a cockamamie legal doctrine not found anywhere in the Constitution and that was cooked up back in 1967 by the Supreme Court under Earl Warren, officials at all levels of government are effectively given a free pass for engaging in unethical behavior, exempting them from being sued in civil court for misdeeds they claim were made on the public’s behalf.

If the killing of George Floyd had not been recorded and broadcast on video, making it impossible for local officials to either hide or sweep it under the rug, it is highly likely the Minneapolis police officers who have now been charged in his death would have escaped facing meaningful consequences. It is a certainty under the qualified immunity doctrine that neither Floyd’s family nor other members of the community would have had any legal recourse to pursue justice for the officers’ bad conduct in civil court.

Writing in 1998, attorney and legal columnist Karen Sellick advocated for the end of the qualified immunity for corrupt bureaucrats by calling for the “piercing of the government veil,” a reference to the legal concept of piercing the corporate veil, which allows plaintiffs to recover damages from the personal assets of corporate officers who engaged in misconduct on the job that led to the damages, which would otherwise be shielded under corporate law.

Here’s a portion of Sellick’s argument, following a discussion of how taxpayers are collectively and unfairly punished in being made to pay for the crimes and unethical conduct of those who hold public office:

It’s about time we rethought this. Corporate law has been allowing us to “pierce the corporate veil” for years in order to hold corporate directors responsible for company actions. Why not pierce the government veil? Why not trace the financial liability for genuine government wrongdoing back to the individuals who actually formed the government at the time of the transgression?

If making politicians pay for their blunders would discourage people from seeking public office, or from doing much while in office, so much the better. This might be the shock treatment they need to make them realize they are there primarily as guardians of our liberty, not meddlers in our lives.

Writing last year, I called for an end to executive immunity. It is time at last to pierce the government veil. Not just in Minneapolis, Minnesota, but everywhere, at all levels of government.

Craig Eyermann is a Research Fellow at the Independent Institute.
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