It’s Too Hard to Sue the Bosses of Bad Cops

In the wake of continuing public protests against police brutality, politicians of both parties are calling for the end of the "qualified immunity" that makes it difficult to sue officers and, often, the departments that employ them. But in the midst of such ferment it’s easy to overlook the larger problem: sovereign immunity itself. The doctrine that the government can’t be sued without its consent creates all kinds of bad incentives, just as it would with a private entity. A recent decision by the U.S. Court of Appeals for the 8th Circuit helps illustrate why.

Suppose it’s the future and everybody’s flying again. As you go through security at the airport, you’re injured when a Transportation Security Officer handles you too roughly. If this were the lobby of an office building or the entrance to a stadium, you wouldn’t care about suing the guards. You’d sue management, both to get the incentives right (“Hey, we should train our guards better!”) and because, well, that’s where the money is.