Discover more from The UnPopulist
The Tyre Nichols Tragedy: Yes, a Law Could Help, Rep. Jim Jordan
Citizens, police victims and good cops would benefit from Congress’ ending ‘qualified immunity’
On Jan. 7, Memphis police pulled Tyre Nichols over, allegedly on grounds of reckless driving. Video of the encounter that followed is chilling: From the moment an officer tears Nichols from his car, Memphis police looked ready to end his life. The cops who left the 29-year-old FedEx employee bloodied and severely beaten on the side of the road never appear to hesitate, reconsider or show remorse. One sent a photo of the battered Nichols to his friends. Three days later, Nichols was dead.
The prolonged police encounter is hard to watch, but it’s untenable for Americans to look away from the excessive force and Nichols’ death. Police have killed over 1,000 people annually for the past 10 years, and the death rate is rising. Worse, most recent killings have occurred in response to suspected nonviolent offenses—or no reported crime at all.
Some suggest nothing can be done. Asked how Congress would respond to Nichols’ death, Rep. Jim Jordan, a member of the House Judiciary Committee, remarked: “I don’t know that there’s any law that can stop that evil that we saw.”
That comment will seem right to many people. Police reforms like chokehold bans and racial bias training have failed to stop police abuse. And no written law can stop bad cops—or any criminals—from behaving badly when they see an opportunity.
But in an important sense, Rep. Jordan is wrong. Laws may not stop a particular crime, but they can change the broader incentives in the justice system. Right now, many police reforms fail because there is rarely a strong incentive to enforce them. This, in turn, is because of the Supreme Court doctrine of “qualified immunity,” which in a majority of cases protects police who’ve abused their power from the consequences of their actions, leaves victims without restitution and removes the pressure on departments to police themselves. Following George Floyd’s murder by Minneapolis police, Congress considered ending qualified immunity, but failed to act. It should do so now.
The Kafkaesque Nightmare of Qualified Immunity
Consider what would happen if this tragedy had not garnered national attention—as most cases do not. The federal Department of Justice doesn’t have the resources to regularly prosecute state and county police whose transgressions, unlike those against Nichols, escape the spotlight of a State of the Union address. Would local prosecutors go after Memphis police, on whom they regularly rely for court testimony, to prosecute the men who killed Tyre Nichols? That’s unlikely, too. Police prosecutions remain incredibly rare, because without enormous public pressure, the political will for our government to police itself just isn’t there.
Yet police violence always leaves behind a victim or a victim’s family, and they have every reason to take officers to court. But in determining whether Memphis must make amends to Nichols’ mother for its officers’ killing her son, a court could completely ignore whether the police transgressed department guidelines or fresh edicts from Congress. The court’s primary inquiry would be whether the police have qualified immunity: a judicial doctrine that protects police (and other public officials) from legal liability if they haven’t violated “clearly established law.”
However reasonable this standard of “clearly established law” may sound, in practice it’s absurd. Showing that the Memphis police violated “clearly established law” would demand that Nichols’ mother find another, prior court case in the federal Sixth Circuit—not, say, in the Fourth Circuit, which governs the neighboring states of Virginia and North and South Carolina—where police were held to have violated the Constitution by brutalizing someone in almost exactly the same way Nichols was beaten.
The level of detail demanded by this inquiry is unnervingly exact. Say that counsel for the Nichols family found a Sixth Circuit case where it was held unconstitutional for police to repeatedly beat a subdued man after he began to flee. Would it matter that Nichols had covered a decent amount of ground before police caught up to him, instead of being taken down again by the police immediately?
It would. Courts made just such a distinction in Latits v. Phillips, which involved a police shooting following a car chase of an unarmed, nonviolent suspect. Like a prior police shooting in which the Sixth Circuit Court ruled the police were liable for damages, this one involved an officer “shooting a driver while positioned to the side of his fleeing car” when the driver was no more than “a fleeting threat.” Unfortunately, the earlier case wasn’t sufficiently similar because it “involved officers confronting a car in a parking lot and shooting the non‐violent driver as he attempted to initiate flight.” The Phillips shooting involved a nonviolent driver after he’d been chased down. As such, the police officer who shot and killed an unarmed, nonviolent man from the side of the victim’s car was entitled to qualified immunity and could not be sued. The court held, in effect, that the unconstitutionality of what the officer had done hadn’t been “clearly established.”
Similar hair-splitting decisions abound in qualified immunity rulings, repeatedly shielding police from lawsuits over grossly inappropriate behavior. The odds are extremely low that the Nichols family could have found a case sufficiently like Nichols’ to satisfy a judge and allow a lawsuit to move forward. This is why a handful of victims in police-abuse cases reach large settlements, while most receive nothing.
And the standard is even worse than it appears. The Fourth Amendment and its related jurisprudence already protect police officers (and other public officials) who make hair-trigger mistakes or misjudgments that were reasonable at the time. That’s doubly true if an officer’s life is at risk. In other words, even without qualified immunity, police would still be shielded from liability for good-faith mistakes—especially those made in violent encounters. In effect, qualified immunity extends protection only to officers who violate the Constitution in ways that are objectively unreasonable even when viewed from an officer’s heat-of-the-moment perspective.
Moreover, qualified immunity speciously implies that police actions are bounded by a mythical reservoir of “clearly established” case law full of constitutional red lines. Even if police are informed of court opinions as part of their training, qualified immunity is designed so that this body of “clearly established” law will never provide citizens with meaningful protection against unconstitutional police actions. Because courts don’t have to decide whether police violated a plaintiff’s constitutional rights before dismissing a lawsuit against them on grounds that they have qualified immunity, there’s a sparse record of court decisions on what counts as clearly established unconstitutional misconduct. And worse, because the courts demand such a granular level of factual similarity from prior cases to satisfy qualified immunity’s exacting standard, the constraints they provide on police conduct are exceedingly narrow. Under qualified immunity, the reservoir of “clearly established” case law protecting the public from police misconduct is hardly a puddle.
Steps Toward Reform
In contrast, eliminating qualified immunity would put teeth in the jaw of every police reform measure passed to date. Without qualified immunity concerns, courts would have to regularly consider whether an officer used a statutorily prohibited tactic in determining the officer’s liability. They’d also consider whether the police department provided proper training and shift the liability to the department if the prohibited practice is what it trained its officers to do.
The George Floyd Justice in Policing Act, which may soon be reintroduced in Congress after having been passed by the House last year, is chock-full of well-intentioned police reforms, such as severely restricting the use no-knock warrants and violent chokeholds. But the bill stalled in the Senate over disagreements about including a repeal of qualified immunity. Most of those who opposed the repeal fell prey to common misunderstandings about the doctrine, such as the belief that police would now be subject to lawsuits over split-second decisions.
Still, many in Congress recognized that without abolishing qualified immunity, the other reforms were meaningless. If a police officer violates a congressional ban on chokeholds, it’s still highly unlikely that prosecutors or police chiefs will have the political will to mete out criminal punishment. And the people with the incentive to enforce a chokehold ban—the victims of chokeholds and their families—will find the courts are uninterested in whether police defied the plain letter of the law unless the victim’s lawyers can find a prior case in the same jurisdiction where police used the illegal chokehold in nearly identical circumstances. So as with most lawsuits alleging that police have used excessive force, qualified immunity will bar victims’ lawsuits from moving ahead—and it will thereby ensure police officers and departments don’t worry much about violating the ban.
Removing this escape clause is paradoxically simple: It just requires Congress to pass a law saying courts shall no longer grant police qualified immunity. The End Qualified Immunity Act, designed to do just that, is just five pages. With this road closed, police who broke congressional mandates against no-knock warrants or gratuitous chokeholds would be legally responsible to their victims for the damage they caused unless they had a reasonable defense. The basic fairness of this outcome has already led Colorado, New Mexico and New York City to abolish the doctrine of qualified immunity within their borders.
Individual and Joint Liability Are Key to Change
Such increased legal responsibility would cause the police to act a lot more carefully. New York Police Unions conceded as much after New York City outlawed qualified immunity in its local jurisdiction:
As a direct result of the passage of this law, and the unavailability of the defense of qualified immunity under its provisions, we advise that you proceed with caution when taking any police action which could lead to physical engagement with any person, and avoid physical engagement to the greatest extent possible while also assuring your own safety and the safety of others. Also, you are strongly cautioned against engaging in any stop & frisk (unless doing so for your own or others’ safety), search of a car, residence, or person unless you are certain that you are clearly and unequivocally within the bounds of the law. … [Emphasis in original.]
The union letter probably overstates the risk that abolishing qualified immunity will expose officers to litigation: Courts will still dismiss frivolous litigation against officers who, from the perspective of a reasonable officer at the scene, acted sensibly. But the unions more or less concede that repealing qualified immunity will require police who are involved in a violent encounter or a search to act responsibly and obey the law. It follows that if officers weren’t shielded from the consequences of their actions by qualified immunity, their conduct would generally change for the better.
That makes a joint liability structure, where police are individually liable for their misconduct and departments cover costs that police can’t, especially effective. Not only does it give officers the right incentives to exercise prudence and follow the law, it gives the department the right incentives to hire well, fire well and police their own people.
Good Cop, Bad Cop: Rewarding the First, Removing the Last
Of course, an officer’s job is inherently dangerous and requires some difficult decisions. But doctors deal with life and death decisions every day, and the public can still sue them individually for wrongdoing. An entire insurance market has grown out of the practice—and in a world where police could be sued in their individual capacity, something like malpractice insurance for police officers is likely to follow. Such insurance plans are already rolling out—some for as little as $15 a month.
And all this is good: It gives police departments cause to fire bad officers to prevent the risk of being sued for their irresponsible actions. In addition, these same officers wouldn’t be able to just get a job in the next county over because they’d be effectively uninsurable—practically guaranteeing that their probable future misconduct would reach the department’s deeper pockets. This would reverse existing incentives for police departments, which are currently notorious for covering up bad officer behavior to keep them on the force—a perverse practice that qualified immunity gives a judicial blessing to.
Keeping unethical officers on the force leaves good police officers in bad company. Incidents like the death of Tyre Nichols have caused public confidence in police to plummet to record lows, making it harder for honest officers to do their job. Conversely, abolishing qualified immunity would send a clear message about police responsibility and begin to rebuild public trust.
Inevitably, eliminating qualified immunity will cause departments to face new costs. As bad officers leave the force, departments will need to replace them with better officers, who may want better pay. A congressional bill eliminating qualified immunity should remain attentive to public concerns about rising crime and not shy away from providing new block grants for hiring police and boosting their paychecks.
The task of building better police forces can’t wait. It’s time for Congress to end the doctrine of qualified immunity nationwide.