At his State of the Union address last night, President Joe Biden introduced the family of Tyre Nichols, who was killed in early January by Memphis Police Department (MPD) officers during a traffic stop. The footage, released several weeks later, was brutal and condemned almost universally, reigniting a stagnant debate about how to give victims of state violence some justice after their rights are violated by the government.
“When police officers or departments violate the public’s trust,” said Biden, “we must hold them accountable.”
Absent from his speech was a suggestion for how to do that or how to ensure victims of state malfeasance have some sort of recourse.
That’s not because such an avenue doesn’t exist. But the issue has become politically radioactive, though it need not polarize people along partisan lines.
During the summer of 2020, the federal government seemed poised to offer some sort of reform to qualified immunity, the legal doctrine that shields local and state government actors—not just police—from facing federal civil suits when they violate someone’s constitutional rights, so long as the way they infringe on the Constitution has not been “clearly established” in prior case law. That explains, for example, why two cops who allegedly stole $225,000 while executing a search warrant could not be sued for that act: While we would expect most people to know that was wrong, there was no court precedent that said theft under such circumstances was a constitutional violation.
It’s an exacting standard that can defy parody in the ways in which it prevents victims of government abuse from seeking damages in response to government misconduct. In the case of Tyre Nichols, for example, it’s quite plausible that the officers who killed him could be convicted of murder and still receive qualified immunity—a testament to how disjointed and unforgiving the doctrine can be.
This is not a hypothetical. Consider the case of Bau Tran, a former police officer in Arlington, Texas, who was indicted in 2019 for criminally negligent homicide after shooting and killing a man as he attempted to flee a traffic stop. (The case is still pending.) Tran received qualified immunity, with a federal court ruling that it was not “so clearly established that every reasonable officer” would have known his precise conduct was unconstitutional. O’Shae Terry, the deceased, initially complied at the traffic stop and then attempted to drive away, prompting Tran to jump on the side of the vehicle and ultimately fire five shots into the car. Perhaps a jury of Tran’s peers would have denied Terry’s family damages. We’ll never know, however, as the family will be legally barred from even asking.
Accountability via the criminal courts is part of the equation. But prosecutors often hesitate to bring such charges, and a charge is not the same thing as a conviction. Should the officer who accidentally shot a 10-year-old boy while aiming at a nonthreatening pet dog face time in prison? Reasonable people may disagree, though it’s arguably less reasonable to contend that the mother of that child should not receive compensation for the medical care her son required due to the government’s negligence and abuse. Yet that was the reality for Amy Corbitt, who did not get to ask a jury to consider her civil case. The officer who shot her child received qualified immunity (and was not charged with a crime).
Those skeptical of qualified immunity reform typically cite an uneasiness about bankrupting officers. They can take heart that cities indemnify their employees against such claims, meaning the government pays any settlement. It’s certainly an imperfect solution in terms of holding individual bad actors accountable, but it gives victims of state abuse an outlet to achieve some semblance of reparation. Make it so any settlements come out of a police pension fund, and you’ve created a major incentive for departments to excise its consistently problematic actors.
Biden’s demurral at broaching the doctrine by name on Tuesday is an indicator of how risky the topic has become after years of criminal justice debate characterized by excess. In the case of qualified immunity, however, an inverse relationship exists between controversy and palatability across ideological lines. There’s a reason the doctrine has drawn the ire of Supreme Court Justices Clarence Thomas and Sonia Sotomayor, when the two agree on little else. Those on the left may lament the barriers it poses to curbing police abuse. Those on the right may zero in on the doctrine’s penchant for greenlighting big-government misconduct, as well as the fact that its genesis came as a result of judicial activism at the highest level. Instead, we’re left with a status quo where government protects its own at the expense of the people it serves.