Addressing police abuse will requite Congress to reform "qualified immunity." Here: RowVaughn Wells, the mother of Tyre Nichols, speaks at a press conference outside of the Shelby County Criminal Justice Center, Friday, Feb. 17, 2023, in Memphis, Tenn. (Patrick Lantrip/Daily Memphian via AP)

The lawsuit filed by Tyre Nichols‘s family against the City of Memphis and the police officers who beat him to death underscores longstanding calls for policing reforms. Any successful reform must include creating or improving remedies for misconduct, especially putting meaningful remedies in the hands of the victims.  

Most of the current discussion of remedies focuses on damage suits against individual wrongdoers, but it might be productive to consider a related remedy—lawsuits against the state or local government that employed the wrongdoer.  

There is a federal statute that theoretically could provide a meaningful federal tort remedy (monetary payment to compensate the victim) against both the individual wrongdoer and the wrongdoer’s government employer. That statute is the Ku Klux Klan Act, signed by President Ulysses S. Grant in 1871. A key part of the law remains on the books as Section 1983 of Title 42 of the U.S. Code, often called simply “Section 1983.” It provides that when any person acting with state or local governmental authority deprives any person of a federal constitutional right, the victim can sue the violator in federal court. The “violator” who is liable could mean the individual wrongdoer, and it could also mean that person’s governmental employer, but over the years, the Supreme Court has restricted both these types of suits, making them inadequate and even futile.  

In a lawsuit against an individual wrongdoer—the most familiar type of suit under Section 1983—the Court-created protection for the individual is a doctrine called “Qualified Immunity” that makes it nearly impossible for plaintiffs to win a lawsuit against an individual wrongdoer. The police officer enjoys almost total protection for “all but the plainly incompetent or those who knowingly violate the law,” as the Supreme Court ruled in 1986 in Malley v. Briggs. The actual wrongdoers are liable only in the most egregious cases, such as in George Floyd’s 2020 murder. In addition to the criminal verdict against the officers involved, Floyd’s family settled a civil suit against Minneapolis for $27 million. 

Changing this rule would take an act of Congress. As difficult as this would be in a divided legislature, there are additional obstacles to redefining “qualified immunity” in suits against individuals. Clearly, individual officers should be immune in some circumstances—for example, arresting someone for violating a law later declared unconstitutional—but it is unclear what standard would replace it. Nor would ending immunity prevent juries from protecting police. And studies have shown that guilty verdicts do not necessarily lead to a change in a community’s police practices.  

The other possible remedy under Section 1983 is a suit against the wrongdoer’s government employer, which has been even more restricted. Whereas the Supreme Court gives qualified immunity to individual state or local employees, the Court has gone even further in protecting state and local governments. It has ruled that under Section 1983, state governments have absolute and total immunity, and local governments have almost absolute immunity. In other words, these governments are never (states) or almost never (cities and counties) responsible for constitutional violations by their employees and officials, police or otherwise. 

Changing governmental immunity into governmental liability would also require a congressional amendment, but this might be more doable. The prospect of a change affecting state and local government liability for their employees may be promising because this type of liability is widespread in both the private and public sectors. Immunizing state and local governments from responsibility for their employees’ wrongs is an anomaly in the legal system. Ordinarily, when an employee injures someone, the employer is held liable under the respondeat superior principle. (It translates as “let the master answer.”) This is a form of “strict liability” for a subordinate’s wrongs. This principle reflects a clear view that injuries to victims must be redressed and that the employer is in the best position to control their employees’ activities and to plan for costs —typically through insurance.  

In other situations, the principle of respondeat superior is applied to governmental bodies by “tort claims” laws—a familiar mechanism in American law. Every state has a tort claims law (although often inadequate) to compensate victims for state employees’ wrongs, and the federal government has a “Federal Tort Claims Act,” but it only pays for federal employees’ wrongs. The missing piece of the puzzle is a federal tort claims act to compensate victims of federal constitutional violations committed by state and local government employees. Congress can amend Section 1983 to fill this gap.  

Financial compensation not only provides redress for injuries but can also promote systemic reform. As Booker T. Washington said in 1895, the color line in America is not just black and white but green—the color of money. When state and municipal officials must hand over taxpayer dollars, they pay attention to preventive measures—and their insurance companies typically step in to press for reform. Repeated claims would shine a light on low-level or seemingly routine violations, not just the great outrages.  

Respondeat superior may not be needed to ensure compensation for the death of Tyre Nichols. But had it been available, it could have highlighted earlier violations by the Memphis Police Department’s Scorpion Unit, at whose hands the 29-year-old man died. Claims against Memphis for earlier, less extreme violations might have resulted in reforming or disbanding that unit before the disastrous encounter with Nichols. Some might fear that cities and states would be subjected to astronomical costs with this amendment, but experience with other tort claims laws do not support this fear. In any event, the costs already exist but are currently borne by the victims.  

Could a respondeat superior amendment pass? It was proposed in Congress decades ago, but today’s increasing public focus on police practices offers a new political landscape. When Republicans were last a Senate majority, Republican Tim Scott of South Carolina headed a subcommittee that seriously examined proposals for police reform. That effort collapsed, partly over qualified immunity, but municipal liability might get a different reception from Republicans. Likewise, Democrats should support the concept even if some might prefer a change in the qualified immunity rule for individual liability. A bipartisan breakthrough may be hard to achieve, but that doesn’t make it impossible.  

Most law enforcement officers are honorable professionals doing a hard and often dangerous job on our behalf. At times they are called on to make split-second, life-and-death decisions. They deserve respect and support. That is not incompatible with insisting on needed reforms. The proposal here will not end rogue policing, but it can bring about a steady, systemic, and healthy change in our society. 

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Orville Vernon Burton and Armand Derfner

Orville Vernon Burton and Armand Derfner are co-authors of Justice Deferred: Race and the Supreme Court (Belknap Press of Harvard University Press).