The brutal killing of Tyre Nichols at the hands of Memphis police has, once again, spurred calls for much-needed police reforms. The Congressional Black Caucus is in talks with the White House in an effort to jump-start negotiations over legislation on a national level. Meanwhile, Republican Senator Tim Scott of South Carolina and Democratic Senator Cory Booker of New Jersey are engaged anew in talks about a potential bipartisan police reform bill — more than a year after their last effort fell apart.
On a state level, officials in the Bay State and beyond are having trouble implementing even the reforms that have been signed into law since the murder of George Floyd by Minneapolis police in 2020.
The sticking point in Washington, as it was in Massachusetts: qualified immunity, the doctrine that shields police officers from liability for violating the constitutional rights of citizens.
Not only should lawmakers — at the federal and state levels — not let that defense stand in the way of meaningful reform, they should recognize that eliminating the doctrine of qualified immunity is the only way to bring about meaningful change.
Ending qualified immunity is not, alone, a solution to police brutality. But this reform is still crucial in order to hold departments fully accountable for misconduct, incentivize state and local governments to implement needed reforms, and to ensure victims and family members of those whose civil rights were violated at the hands of police can obtain legal redress.
To better understand this, it is important to dispel a myth that is often used by defenders of qualified immunity: Without it, they claim, people would be discouraged from becoming police officers or other first responders for fear that they could face economic ruin from frivolous lawsuits.
“I oppose civil lawsuits against individual officers,” Republican Senator Lindsey Graham of South Carolina tweeted last week. “However, holding police departments accountable makes sense and they should face liability for the misconduct of their officers.”
Well, senator, we have good news for you.
“Officers don’t pay when settlements and judgments are entered against them,” said Joanna Schwartz, a professor at UCLA School of Law and an expert on police misconduct litigation.
That’s because in most states, including Massachusetts, indemnity statutes provide that the state or municipalities pick up the tab for legal fees, settlements, or judgements against officers in police misconduct cases. And where such indemnity laws don’t exist, often police unions and other groups set up legal defense funds to cover costs. So even officers who lose their badges don’t have to worry about losing their shirts.
Getting rid of qualified immunity wouldn’t put officers at financial risk — but it would put municipalities at risk. And that’s the point. Fear of lawsuits could be the motivator that gets localities to do what protests haven’t: fire abusive officers, reform hiring practices, and set higher standards going forward.
Other justifications for preserving qualified immunity — including those offered by the Supreme Court when it created the doctrine out of thin air in 1982, nullifying a federal law passed more than a century earlier establishing a private right of action for constitutional abuses by government actors — also easily fall under scrutiny. Such lawsuits, the court reasoned, subject police to potential frivolous lawsuits, and officers should only be held accountable for action as “clearly established” by a court ruling to be violations.
“There are many, many other ways for insubstantial cases to be kicked out of court,” Schwartz said, noting the myriad civil procedure hurdles any plaintiff has to clear to get a case past the preliminary stage.
And, Schwartz notes, “officers don’t read the court decisions that clearly establish the law,” so the court-created rule requiring that officers be aware of them in order to be found liable makes no sense.
Instead, those who suffer police abuses and the family members of those killed by police should be allowed their day in court to prove their case and seek redress. Civil remedies are crucial tools in police reform, and though they often cannot make victims whole, they can serve to bring about some justice. Federal and state officials should remove the barrier victims face in obtaining that.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.