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LA Times: OpEd (1.28.23) What does justice look like for Tyre Nichols, and for all of us?

I wrote an oped for the Los Angeles Times about the future of police reform, as we wait in horrific anticipation for the video of the beating of Tyre Nichols to be made public.

On Jan. 7, Memphis police officers stopped 29-year-old Tyre Nichols for a minor traffic violation and then beat him so viciously that they broke his neck and sent him into cardiac arrest. Nichols died three days later. Memphis, Tenn., Police Chief Cerelyn Davis has called the beating “heinous, reckless, and inhumane” and fired the five officers involved. On Thursday, the district attorney announced that the officers had been arrested and charged with second-degree murder. Less than three years after George Floyd was murdered, there are hauntingly familiar calls for justice for Tyre Nichols. We have been here far too many times before. Reports of people beaten and killed by police have periodically put the failures of our criminal justice system on the front pages of newspapers. In response, legislative committees have held hearings. Reports have been issued, documenting racist policing, unlawful arrests and excessive force. Reforms have been put into place. Then, invariably, the country’s attention has been drawn elsewhere and the conversation has gone quiet.

When the world watched Minneapolis Police Officer Derek Chauvin murder George Floyd, the conversation began anew. In some ways, it felt different this time around. Police chiefs around the country immediately and unequivocally condemned Floyd’s killing. Protests were larger and more racially diverse than ever before. Important reforms got traction at the federal, state and local levels. But then the nation’s sense of urgency began to slip: Protests died down; proposed reforms were voted down; Black Lives Matter murals painted in bright colors on city streets began to fade. Despite unprecedented attention paid to police misconduct and violence in 2020, police killed more people in 2022 than they had in any year since experts began tracking these killings. Now we are poised for yet another painful reckoning.

In the weeks after George Floyd was murdered, calls for reform focused on ending a legal protection for police called “qualified immunity.” Officers are entitled to qualified immunity — which shields them from liability in civil cases — even if they have violated the Constitution, so long as they have not violated “clearly established law.” The Supreme Court has defined clearly established law in such a narrow way that officers have been granted qualified immunity even when they have stolen more than $225,000 during a search; used a police dog to assault a man who had surrendered; and sat on a man’s neck and back until he died. Although some large cities and counties pay tens of millions each year to resolve misconduct lawsuits against their officers, these and many other horrific cases have been dismissed on qualified immunity grounds.

After George Floyd’s murder, Congress and many states took up legislation that would in effect end qualified immunity. But union officials and other defenders of the status quo argued passionately against them, claiming that police officers and local governments would be bankrupted for reasonable mistakes without qualified immunity.

There is no evidence to support such claims. Officers wouldn’t be bankrupted without qualified immunity; local governments almost always pick up the tab when their officers are sued and these payouts amount to less than 1% of most governments’ budgets. And the Supreme Court’s interpretation of the 4th Amendment further shields officers from liability when they make reasonable mistakes. But, in many places, the fears stoked by opponents of these reform bills have proved more powerful than facts on the ground. Currently, several states, including New York, Washington and New Hampshire, have reintroduced police reform bills. I testified in favor of Washington’s bill earlier this week and listened as opponents of the bill raised the very same groundless concerns that have led to other bills’ defeat. The killing of Tyre Nichols should serve as a reminder of what is at stake in the continuing debate about police violence and reform. It’s not the phantom menace of more lawsuits against the police, but how our society allows these horrible injustices to happen again and again and what we owe to victims of government misconduct and abuse.

Ending qualified immunity won’t end all the problems in policing — far from it. There are many other legal protections shielding law enforcement officers from justice in the courts and from discipline and termination by their departments. We also need to ask broader questions about what we empower police to do, and how to restore trust between law enforcement and communities they serve. But for now, eliminating qualified immunity is an important first step, given the egregious misconduct it protects.

I’d hoped that we wouldn’t have to see another killing on a viral video to restart the national conversation about police reform. Yet here we are. This time, we must focus on facts, not fear-mongering.

Myths about the dangers of making it too easy to sue police have made a mess of our system. We need a shared understanding of why officers must be held accountable for their actions, and a commitment to end senseless legal protections that embolden police and leave victims without a meaningful remedy. Joanna Schwartz is a law professor at UCLA and the author of the forthcoming book “Shielded: How the Police Became Untouchable.”

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