Think of qualified immunity as serving as a protective veil for bureaucrats. It empowers government officials to engage in unethical behavior they otherwise would not. That’s because the privilege of qualified immunity protects them from the cost of defending their individual misconduct. Piercing the government veil by allowing victims to directly sue these perpetrators for their on-the-job misdeeds can be a powerful tool for government accountability.

Two stories involving small steps toward piercing the government veil made the news last week. In the first story, the government of New York City ended qualified immunity for police officers. In taking that action, it became the first city in the U.S. to do so. This is a small step that should be expanded to include all New York City government officials.

The second story involves the University of Iowa, a public university. Here, three university officials were found to have discriminated against a campus group because of its religious affiliation. In their intentional discrimination, they violated the group members’ rights under the Constitution.

In ruling against the university officials, who are state government employees, the Eighth Circuit Court of Appeals made no bones about what they viewed as the officials’ unconstitutional conduct in the case. They also stripped the university officials of any privilege to claim qualified immunity for their actions:

The purpose of qualified immunity is to shield good-faith actors who make mistaken judgments about unresolved issues of law, and it protects “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (citation omitted). But we do not need the benefit of hindsight to know that the individual defendants’ choices were prohibited by the Constitution. They had more than “fair warning” that their conduct was unconstitutional. Tolan v. Cotton, 572 U.S. 650, 656 (2014) (citation omitted). In fact, they knew it was. See Maj. Op. 24.

The law is clear: state organizations may not target religious groups for differential treatment or withhold an otherwise available benefit solely because they are religious. That is what happened here. The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity.

The Appeals Court sent the case back to the lower court. The next step of the legal process will set the cost of damages the three university employees must pay their victims. Better still, that money must come out of their own pockets. Taxpayers shall be free from paying for these bureaucrats’ bigoted misconduct.

But would this case have ever existed in the first place if not for the doctrine of qualified immunity? If the answer to that question is no, shouldn’t the bureaucrats’ privilege of qualified immunity be permanently pierced?

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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.

The post George Floyd, Qualified Immunity, and the Quest for Justice appeared first on The Beacon.

Of course, private action also has repercussions, some of which may be unpleasant or harmful. But in the private sphere, the likelihood is much greater that people will respond to the negative feedback of information about adverse repercussions by finding diverse ways to rectify mistakes that have been made, whereas in the government sphere any bad action will either generate no negative-feedback incentive for rectification of mistakes or will, instead, only set in motion a Madisonian-Misesian dynamic in which one cruel or destructive action becomes the initial link in a long chain of reactive interventions, each as adverse as the proceeding ones, if not worse.

Scholars and analysts have put a great deal of effort into the design of economic systems or arrangements that will give rise to optimal outcomes. Usually, however, the model is premised on the assumption that decision makers make choices that reliably yield the result they seek. Such an assumption, in general, does not describe the real world, where the intrinsic uncertainty associated with physical, technological, social, and economic variables, among other things, guarantees that mistakes will occur. So, the crucial question is not simply how to choose the best course of action, but also how best to respond to errors when they occur.

State bureaucracies are notoriously inept in reacting constructively to their own mistakes. For example, they continuously seek to increase their budgets, staffs, and authority, even when their projects have proven counter-productive or disastrous. It’s almost as if they promote their institutional objectives best by fouling up their programs, then coming back to their funding sources to explain that they cannot succeed unless they receive more resources to do so. Thus do public agencies pour money and effort down the rat hole for years on end, wasting the public’s money every step of the way. The feedback system in this case is obviously perverse so far as serving the public interest is concerned.

Such perversity is practically guaranteed in government operations because government operates outside the realm of private property rights, the price system, and the profit-and-loss accounting that constitute a feedback system in the market realm. In the market, money-losing projects do not persist indefinitely. Their owners and managers eventually decide against throwing good money after bad and close the unprofitable operations. Owners who refuse to read and respond correctly to the clear message transmitted by profits and losses suffer reductions of their own wealth, which serves as a powerful incentive to act correctly and to rectify the mistakes they have made before even more wealth goes down the drain.

So, to return to the initial thought, government cannot do just one thing, and some of the repercussions of what it chooses to do will be, as it were, mistakes in the perspective of the public even if the initial action were not. But the public’s dissatisfaction with these adverse outcomes can make itself known only via the politically charged process of complaint to authorities, petition for redress of grievance, lobbying, payoffs to public officials, and all the rest of the endlessly complex apparatus for the operation of the government’s political and bureaucratic setup. One is lucky to get any constructive response at all from the government, whose effective control is apt to be in the hands of entrenched politicians, bureaucrats, and private-sector cronies in the various iron triangles that pervade the state at large. If one does succeed in getting a constructive response, it is likely to come forth only after years of expensive and time-consuming delays.

This lack of an effective feedback-incentive mechanism is among the greatest flaws of all government activities. Markets, in contrast, are certainly not perfect relative to the model criteria economists have devised to evaluate them, but they are undoubtedly superior in the operation of their feedback information and response to mistakes. To remove an activity from the market and place in under government control is to ensure that henceforth mistakes, whether they arise from bad judgement, corruption, or ignorance, will not elicit a proper or timely response. In the government realm, mistakes and the slow, counter-productive responses, like doomed lovers, sink together slowly in the quicksand of bad actions being made ever worse by ill-fated reactions.

To understand how once-thriving countries ended up as disasters such as Argentina or Venezuela, just think of their histories in the light of the considerations laid out in this post. What happened in those countries can surely happen elsewhere. Indeed, the United States of America has already traveled far down that disastrous path.

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