The brutal death of Tyre Nichols at the hands of Memphis police officers is one of the most egregious examples of police misconduct in living memory. On January 7th, officers stopped Nichols, a 29‐year‐old Black man, for alleged “reckless driving” (though Memphis Police Chief Cerelyn Davis has since acknowledged that they’ve been “unable to substantiate” probable cause even for this initial stop). Body camera footage reveals that the officers pulled Nichols out of the car, pushed him to the ground, threatened him, yelled expletives and conflicting commands, and used pepper spray and a taser on him. Nichols managed to escape, but officers caught up with him a few minutes later, where they proceeded to beat him for several minutes, striking him at least nine times with batons, kicks, and punches to the face, even though Nichols never struck back. Nichols was hospitalized in critical condition, and he died three days later.
There seems to be no serious dispute that the shocking level of violence deployed against Tyre Nichols was patently unjustified. Chief Davis herself denounced the beating as “heinous, reckless, and inhumane,” and the five officers directly involved have been charged with second‐degree murder and other crimes. But while this instance of police brutality may be especially extreme, it is far from an anomaly or outlier. Rather, it’s the predictable consequence of a culture of near‐zero accountability, in which law enforcement officers are rarely held to account for their misconduct. And while this lack of accountability has many causes, the most significant is the judge‐made doctrine of qualified immunity, which shields public officials (including police) from civil liability, even when they violate people’s constitutional rights.
In the aftermath of George Floyd’s murder in May 2020, policing reform in general—and qualified immunity reform in particular—surged to national prominence. But notwithstanding the widespread attention this issue received, very little practical progress was made on the subject of accountability for officers who commit misconduct. In the year following Floyd’s death, lawmakers in at least 30 states and the District of Columbia enacted one or more pieces of “policing reform” legislation. But only two of these states—Colorado and New Mexico—enacted laws ensuring that victims of police misconduct could get redress for a violation of their rights without having to overcome qualified immunity.
More discouraging still, at the national level, no such reforms were passed at all. The Supreme Court declined to hear any case asking whether qualified immunity should be reconsidered, despite the lack of any plausible legal basis for the modern version of the doctrine. And despite initial bipartisan (and even tripartisan) interest in qualified immunity reform in June 2020 (including a bill introduced by a Republican senator that would have essentially eliminated the doctrine in its current form), negotiations over the Justice in Policing Act broke down in 2021, and Congress failed to pass any national reforms.
Thus, weary though the nation may feel about the subject of policing reform, the killing of Tyre Nichols is a stark reminder that the issue remains as urgent as ever. It might be objected, of course, that “accountability” is not really an issue here, as the officers who killed Nichols have already been criminally charged and may well be convicted of murder, just as George Floyd’s killers were. But that response ignores the fact that the deaths of Floyd and Nichols are two of the most extreme, visible, and high‐profile police killings in the nation’s history. On the whole, prosecutors remain incredibly reluctant to prosecute the police absent overwhelming public pressure, and even when they do, convictions are difficult to obtain.
But more fundamentally, the key question isn’t how to hold these particular officers accountable for this particular offense; it’s how to create a sufficiently predictable culture of accountability in law enforcement such that these kinds of offenses aren’t committed in the first place. And in this regard, it’s important to recognize that criminal prosecution is a blunt instrument that may not actually be appropriate for every instance of police misconduct. That’s exactly why a robust civil remedy is so essential for police accountability—not only does it give victims control over whether to bring a lawsuit without needing the permission of prosecutors, but it also creates a measured, proportionate means of holding officers account for more “ordinary” rights violations. Thus, by severely undermining the civil remedy that Section 1983 was meant to create, qualified immunity has severely undermined our best hope for police accountability in general.
The killing of Tyre Nichols also reaffirms how this culture of near‐zero accountability hurts not just the victims of police misconduct, but the law enforcement community itself. Policing is a difficult and dangerous job, and officers rely extensively on the trust and cooperation of the communities they police to be effective. But in recent years, public trust in law enforcement has fallen to record lows, in large part because of the public’s accurate perception that police officers who commit misconduct are rarely held accountable. Even if it is only a small proportion of officers who regularly commit egregious rights violations, when those officers are excused from liability on the basis of a lawless technicality, the entire profession suffers a reputational loss.
The tragedy of Nichols’ death has, at the very least, already revived some momentum for policing reform at the national level. But as such talks begin to take the form of concrete proposals, it is crucial to recognize and abjure one particular false start—the idea of replacing individual liability for officers with liability for police departments themselves. Indeed, just a few days ago, Senator Lindsey Graham tweeted that he “oppose[s] civil lawsuits against individual officers” but that “holding police departments accountable makes sense and they should face liability for the misconduct of their officers.”
As I discussed in much greater detail here, this idea may look tempting at first blush, as it would seem to give victims of police misconduct the ability to recover damages while sidestepping the political controversy around suing officers personally. The fundamental problem, however, is that relying solely on employer liability ignores the individualized accountability that civil rights laws like Section 1983 are meant to provide. If police officers are told, in essence, not just that they’re protected by qualified immunity, but that they can’t be held liable for rights violations at all, that hardly gives them the correct incentives to ensure they respect people’s constitutional rights. Moreover, placing the financial burden of compensating victims entirely on the back of taxpayers is unlikely to do much to restore public trust in law enforcement; to the contrary, it could make matters worse.
Thus, while employer liability is an important part of policing reform, it must be a supplement to qualified immunity reform, not an alternative to it. Shared liability—not employer‐only liability—is the system that ensures a full remedy for victims of misconduct, creates deterrent incentives for both individuals and public employers, and encourages states and localities to experiment with different methods of apportioning liability between officers and police departments (including, for example, funding insurance policies for individual officers).
None of this should be taken to suggest that eliminating qualified immunity is a silver bullet or the only necessary component of policing reform. Radley Balko, for example, has already explained how Tyre Nichols’ case illustrates the many problems with so‐called “elite” police units, like the SCORPION program that the officers who killed Nichols were a part of. But even the most well‐intentioned, seemingly relevant policing reforms—like changes to use‐of‐force standards or duties to intervene—will mean little if officers can continue to violate those laws with impunity. Robust civil accountability is an essential component of true policing reform, which means that eliminating qualified immunity is a necessary first step down this road. Let us hope that policymakers across the country can draw such wisdom from this horrific tragedy.
This article was originally featured at the Cato Institute and is republished with permission.
