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Last Monday, the country bared witness to another occurrence of police brutality. In the death of  George Floyd. This miscarriage of justice and abuse of power has not come without repercussions. As riots break out across the country, demonstrators seethe with vitriolic indignation. Looting, vandalism, another means of violent action stirring chaos in America’s urban centers. The byproduct of fermenting resentment engendered by feeble responses by policymakers to similar circumstances. While frustration is understandable, these actions are not justified. Projecting your angst on innocent parties will not fix any institutional shortcomings in the justice system.


However, most law enforcement officers do not brutalize the suspects they apprehend. Most dutifully follow proper procedures when using force to subdue a suspect. It is important to remember that one bad apple does not represent all law enforcement agents. Even if most cops are honest and decent that does not mean that we cannot advocate for reform. Reform measures that can provide less protection to the few malevolent outliers.


Upon reading an article on the blog  The Volokh Conspiracy, I was horrified to learn about the background of the officer charged in Floyd’s death. The fact that the officer implicated in Floyd’s death had 17 prior complaints. He had been put on administrative leave in the past for “using lethal force”. To only compound matters, the notes detailing disciplinary parameters for this officer were scant. The city of Minneapolis has a well documented reputation for not reprimanding officers who violate procedure.


The question becomes how did this officer fall through the cracks? Shouldn’t he be held accountable for his transgressions? The author of the previously cited article attributes this failure of the justice system to Qualified Immunity.  This legal protection has been rigorously advocated for by police unions (Rosen, 2005). What is Qualified Immunity?  It is the legal doctrine that insulates civil officials from laws suits when exercising duties within their authority. Unless their actions conspicuously violate “statutory” or “constitutional” rights”. This protection was initially implemented with the best of intentions protecting police officers from frivolous lawsuits (Schwarz, 2014).  Per a 2014 study, instances where victims are awarded damages for law enforcement related rights violations, 99.98 % of the settlements were paid out by governments, not the offending officer! Even in situations where the acting officers’ judgment was profoundly questionable.  Such as Baxter v. Bracey (2018) were two officers “deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up“. Demonstrating that Qualified Immunity could be a significant variable in the lack of disciplinary action taken against exploitative officers.


It is reasonable to question how Qualified Immunity relates to Bruce Yandle’s concept of Bootleggers and Baptists. It is important to remember that with every policy position you have various coalitions in the running to champion it. This can be even further divided into categorical subgroups.  Wherever you see an angel a devil is lurking around the corner. For example, one out of every ten teachers is insouciant and does not care about the well being of the students. Still a minority, but that one teacher is the rotten egg of the bunch. They operate as  “moral free-rider“. This individual enjoys the favorable perception of teachers due to the efforts of most teachers without having to live up to such standards. The same is true for police officers. The upstanding and compliant police officers are advocates of qualified immunity. The same is true of the minority of bad police officers. Protection from frivolous ligation is in the best interest of all police officers regardless of performance.



Police officers who abuse their power and exploit institutional protections. Bad Cops.



The Majority of Police officers who are law-abiding and care about their community. Good Cops



The Parameters of Qualified Immunity:
For the state of Arizona, Qualified Immunity falls under ARS 36-738.  Instead of mulling over the litany of cases about Qualified Immunity, let focus on the test case. Harlow V. Fitzgerald (1982). The case stems from the 1970 termination of A.Ernest Fitzgerald resulting from his testimony before the Economic Joint Committee of the U.S. Congress. His testimony detailed the “unexpected costs associated” with the C5-A transport plane. Believing that his termination was in retaliation he used two presidential aides.


Civil servants are not allotted blanket immunity. Rather, there is a specific criterion to determine if they were acting within limits of their job role. Was it extralegal for those two aides to fire Fitzgerald? Providing that they did violate any of his Constitutional rights and it was within their authority to do so, then no. The other piece of the puzzle that muddies the water is that so long that the official’s actions were reasonable and they believed their conduct to be lawful.


The Bootleggers and Baptists:

The dynamic of this coalition is quite simple. The good police officers (with the full support of the powerful police unions) justify Qualified Immunity. Why punish good-faith actors who risk their lives to protect us and our property?  They work hard to keep our communities safe. Why should they be held liable for an honest mistake?  Making the “Good Cops” our Baptists.


Our Bootleggers, the “Bad Cops” also support keeping Qualified Immunity. Again they have the backing of the police unions. The difference is their ” economic benefit” is not a quantifiable dollar amount. It is an institutional blank check to bend the rules. In some circumstances literally get away with murder. Per the minuscule amount of research  I have done on the topic it would appear as if QI tends to overwhelmingly favor the officer. Even in instances where the officer should not be protected. The few bad apples have the “good cops” taking care of the public perception portion of the equation. While the continue to exploit the flexibility of how QI is applied to law enforcement personnel. Making them the true beneficiaries of this legal privilege.
However, due to wanton and chronic abuse of this legal protection public opinion has started to shift. Especially in the wake of the death of George Floyd.




I will not get involved with the argument as to whether QI should be limited or abolished. That is best left to the legal experts. I will let the senior fellows at the Cato Institute handle that one. However, the arresting officer that killed Floyd certainly had a lengthy disciplinary record. Yet, he still had gainful employment. Leading me to believe that QI has served as a shield this officer from legal and disciplinary consequences.

Above all, I wish the violent protests would subside. It is probably the idealist in me.  Why cause more pain and suffering in the world? It will not undo and of the injustices done to the victims of police brutality.

6 thoughts on “Bootleggers & Baptists IV: Good Cop, Bad Cop. Qualified Immunity.

  1. Excellent post! If you want to unleash my Cuban temper, all you have to say is two words: “qualified immunity” — the most pernicious and obscene of legal doctrines. Notice how federal judges use this doctrine to keep plaintiffs out of court! The judges are the real bootleggers here!

    Liked by 2 people

    1. Damn it! The judges. Yes.. they would be the true winners here. Damn it as in identified the wrong party as the bootlegger.

      If I could personally than Jonathan H. Adler I would. That one brief article taught me a lot. He’s also written a lot of good material pertaining to Antitrust laws. Few months back when I briefly wrote about antitrust his papers were very helpful.

      Liked by 3 people

      1. OMG, Professor Adler is one of my favorite commentators on VC! I have had the honor of meeting him a few times at the annual Federalist Society faculty conferences, and he is not only a top-notch scholar; he has always been generous of his time, so feel free to reach out to him!

        Liked by 2 people

        1. Good to know he’s a decent guy. I discovered VC because one of your blog entries.

          I discovered Adler’s work just through pursuing antitrust literature. Jan/Feb time frame. Complete accident. Then months later seeing he wrote in VC. Oh … I believe that is the same gentleman. I like his writing.

          One of my pre- pandemic Antitrust essays.

          Liked by 2 people

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