Sen. Lindsey Graham (R-S.C.) calls a video that shows police fatally beating 29-year-old Tyre Nichols in Memphis, Tennessee, “appalling.” Then, writing on Twitter, Graham suggested a possible compromise on a police-reform package that has been stalled in Congress.
“I oppose civil lawsuits against individual officers,” Graham wrote in a Jan. 29 tweet. “However, holding police departments accountable makes sense, and they should face liability for the misconduct of their officers.”
Graham’s stance addresses “qualified immunity,” a much-debated principle that became a congressional sticking point for the George Floyd Justice in Policing Act.
Nichols’ death on Jan. 10 in Memphis, Tennessee, sparked renewed cries for police reform as detailed in the Floyd act, including changes to qualified immunity.
Five Memphis police officers have been fired and are facing criminal charges. President Joe Biden has told Nichols’ family he will press Congress to move the Floyd act forward.
Laws Don’t Work as Intended
Under the decades-old legal principle of qualified immunity, police officers and other government employees are said to be “immune” from monetary damages if they unintentionally violate a person’s rights.
But officers can be on the hook for monetary damages for intentional violations of rights. At least, that’s the theory. In reality, individual officers rarely pay a cent even when wrongdoing is proven in court, says a noted researcher.
Individual officers “almost never” paid any part of court settlements or judgments; their employers or insurers did, according to extensive research by Professor Joanna Schwartz of the University of California, Los Angeles (UCLA).
“Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments,” Schwartz wrote in her oft-cited 2014 study.
That was true “even when officers were disciplined, terminated, or prosecuted for their conduct,” Schwartz wrote.
Since 2014, “all available evidence suggests that officers continue rarely to pay anything towards settlements and judgments against them,” Schwartz wrote in a Jan. 30 email to The Epoch Times. “There is variation across the country in indemnification policies and decisions case by case–but the end result is the same. Officers virtually never pay.”
Schwartz wrote that she largely agrees with Graham’s suggestion.
Schwartz’s exhaustive research “found that the law rarely serves its purposes of shielding police from unwarranted suits and saving them from the costs of defending themselves, and settlements and judgments,” a 2018 UCLA news release said.
Group Wants to ‘Work With’ Graham
The Institute for Justice (IJ), a nonprofit public interest law firm, says that a claim of qualified immunity can be overcome only with proof that a violated right was “clearly established.” To meet that requirement, a claimant must find “a previous case where a court ruled that officials violated someone else’s rights in almost the exact same way,” the institute says in a YouTube video available on its website.
Patrick Jaicomo, a senior attorney at the IJ, disagrees with Graham’s position on qualified immunity but welcomes the opportunity to work with him.
“Senator Graham’s position that there should be no accountability for individual officers goes against America’s most important civil rights statute,” Jaicomo said in a Jan. 30 email to The Epoch Times. He was referring to the law known as “42 USC Section 1983.” That law was enacted after the Civil War “to ensure courts could hold liable individual officers who violated the Constitution.”
But, he wrote, “such lawsuits are now difficult to bring thanks to the Supreme Court’s creation of qualified immunity in 1982.”
Jaicomo wrote that he agrees with Graham on one point: “Police departments (and other government employers) must be held accountable for the abuses of their employees.”
That’s “nearly impossible” under current laws, Jaicomo said, adding, “The Institute for Justice would be happy to work with Senator Graham and others to find a solution that would ensure accountability, safeguard constitutional rights, and allow for effective policing. Right now, federal law fails to accomplish any of those things.”
Graham’s staff did not immediately respond to The Epoch Times’ inquiry about his qualified-immunity tweet.
Another relevant U.S. Supreme Court ruling dates to 1967. The court adopted a “general defense” that a police officer could avoid liability by showing he acted “in good faith and reasonably,” the IJ’s website says. However, “neither of those requirements carried into the qualified immunity doctrine we have today,” the IJ said.
Until that year, “government workers were strictly liable for constitutional violations, even if they were following laws that turned out to be unconstitutional, the IJ wrote, addressing concerns that no one would want to become a police officer if held liable.
The IJ “favors removing qualified immunity entirely,” its website says, conceding that “it would also help if the Court were to revert back to the good faith standard it adopted in 1967.”
That would ensure that “at least intentional and obvious constitutional violations would not be protected,” the IJ argues.
Meanwhile, some activists are calling upon lawmakers to end qualified immunity at the state level. At least two states, Colorado and New Mexico, recently enacted such laws.
“EndQINY,” a grassroots organization dedicated to ending qualified immunity in New York, says on its website: “It is widely understood by national, state, and local organizations that any changes to qualified immunity must now come from legislators at the state level.”
The Associated Press contributed to this story.