The doctrine of qualified immunity grants government officials performing discretionary functions immunity from civil suits unless the plaintiff shows that the official violated clearly established statutory or constitutional rights of which a reasonable person would have known. In other words, unless the harm done is blatantly egregious, the government is not responsible for violating the rights of citizens. Misbehavior which would clearly result in legal action when one party harms another is virtually impossible when one of the parties is the government.
Qualified immunity is in the news these days because it is the principal which protects government entities from lawsuits resulting from police misconduct. In determining policy, you do not want the police walking on eggs. On the other hand, a police badge is not a license to kill. Allowing, and yet limiting the use of force is a very delicate balance.
Minorities have complained for decades about police abuse. Over these same decades, the police have largely been able to keep their friendly-cop-on-the-beat image intact and most Americans probably did not believe that the police were routinely guilty of such extralegal activity. However, with smart phones and their ubiquitous cameras, ordinary people now have the tools to show otherwise. Evidently, bad cops are not all that rare. As it turned out, police have too often actually gotten away with murder, both literally and figuratively. It started with Rodney King and, a more woke society notwithstanding, it will not likely end with George Floyd. We need to appreciate the delicacy of police work but, at the same time, we cannot automatically ignore the excessive use of force facilitated by the loose application of qualified immunity.
But qualified immunity sheltering police from bad behavior is far from the whole story. We also need to end the excessive use of bureaucratic authority which can likewise be abusive. While rarely ending in bodily harm or death, bureaucrats routinely cause significant harm to members of the public. There may occasionally be malevolence involved — excessive use of forfeiture laws, for example — but it is far more common that abuse results from mistakes and incompetence. Even when only small sums are involved, governments routinely deny money awards to offended citizens. They cannot afford the precedent. Instead, they hide behind qualified immunity and force legal action. Unless the damage is both large and egregious, they get away with it. Government cannot afford to pay for its mistakes and so has rigged the system so it does not have to.
(When the damage is indeed egregious – when they cause brain damage to children — they do pay. The State of Michigan settled with the residents of Flint for $600 million for the very bad decision to change the City’s water supply from a safe source to one which was toxic.)
Misinformation from government agencies can be very costly to citizens. When a government agency gives you wrong information, it ought to be held responsible. When providing misinformation, what they do is akin to professional malpractice which would be routinely actionable in the private sector. If one buys a property based on the realtor’s posting of erroneous zoning information, the buyer can sue. It the local planning staff gives out comparable bad information, they are immune from any consequences, .
A true story: a real estate developer converted a factory into twenty lofts. The project was built in compliance with plans approved by the local municipality, including plans for a fire alarm system which was reviewed and approved by the Fire Department. The system was installed as specified.
When the building was done, the developer sought a Certificate of Occupancy (CO), a legal acknowledgement that the building meets certain health and safety requirements and can be put into use. However, there remained some work to be done on the public sidewalk, work which the developer had agreed to do. Because of this, the city refused to issue a CO. Instead, they offered a Temporary CO (TCO) if the developer could get sign-offs from a half dozen City departments.
After much effort, only the Fire Department remained. The official who knew the project was not in the office and so his boss agreed to help. After re-reviewing the application, he tells the developer that he needs a system which sounds an alarm in all the units if it goes off in any unit. This was not a specification of the approved plan. He acknowledged that that was true but would not relent. True to my adage that a bureaucrat always has a $1000 solution to a $10 problem, the Fire official has a solution.
The developer could have a TCO if he would post a guard at the property 24/7 until the alarm system issue is resolved. The hardest thing to do when a project nears completion is to pick the right occupancy date. Pick a date too early and you have tenants with leases granting them access which you cannot legally provide. Pick a date too far out and you have a building ready to occupy but tenants not scheduled to move in for weeks or more. That can be a big dollar lose.
With a finished building and an obligation to his new tenants, the developer had no choice but to accede to the demand of the Fire Department. What would have cost maybe a thousand dollars when the walls were open, now cost about $12,000. The guard requirement lasted a month and cost about $32,000.
Please understand and appreciate that this newly refurbished building, up to all modern codes, needed a guard while a hundred thousand buildings all over town spent that same month blasely unguarded. One of those unguarded buildings soon thereafter burned in a major conflagration in which some three dozen lives were lost.
If one private private party had imposed a $44,000 loss on another, and that loss was directly attributable to incompetence, a law suit would have be justified and inevitable. When a private service provider causes demonstrable harm, there is no immunity. Why is it not the same for governments?