The tragic death of another unarmed Black man at the hands of the police should fuel efforts for reforms, but will they happen?
The death of Tyre Nichols after a savage beating by Memphis police officers has again focused national attention on the reality of excessive police force. After the murder of George Floyd in May 2020, there were protests against police violence in all 50 states and a sense that action would finally be taken to limit police abuses. Bills were introduced into Congress, but none were enacted.
Excessive police force, especially against young Black men like Floyd and Nichols, is common. In 2016, Black men aged 15-34 were nine times more likely than other Americans to be killed by law enforcement officers, and killed at four times the rate of young white men. Hispanic men are nearly twice as likely to be killed by police as white men.
The U.S. Civil Rights Commission concluded that "while people of color make up fewer than 38% of the population, they make up almost 63% of unarmed people killed by police."
But there are obvious reforms that can make a difference.
First, the legal standard for when police can use deadly force should be changed. In 1989, the Supreme Court ruled that the Constitution allows police to use deadly force so long as it is "reasonable" under the circumstances. But this does not provide enough protection for people's lives.
In 2019, California made a legislative change to say that under state law, which can provide more rights than the U.S. Constitution, deadly force is allowed "only when necessary in defense of human life." It is too soon to measure the effect of this law, especially because police departments have been slow to train officers, but Congress and other state legislatures should follow California's lead.
Second, the law should be changed to make it possible to hold officers liable when they violate a person's constitutional rights, especially when it leads to someone's death. Under current law, a government official who is sued for money damages for a constitutional violation can raise "qualified immunity" as a defense, meaning the officer is held liable only if they violate clearly established law that every officer should know. The Supreme Court has said that qualified immunity exists to protect all but the plainly incompetent officer. In case after case involving excessive police force, the Court has ruled in favor of officers based on qualified immunity and it shows no signs of changing this law.
Congress, though, could revise this law. Qualified immunity is based on the Court's interpretation of a federal statute, not the Constitution. In fact, after the death of George Floyd, the House of Representatives voted in favor of a bill to change the standard for qualified immunity to make it easier to successfully sue police officers. Unfortunately, the Senate took no action, and now passage seems unlikely with a Republican-controlled House.
But there is another avenue for change: states could expand liability for officers when they are sued under state law. Colorado enacted a bill denying qualified immunity to officers sued for excessive force. And in January 2023, the Nevada Supreme Court ruled that police officers sued under state law for constitutional violations cannot raise qualified immunity as a defense.
Third, the law should be changed to make it easier to hold local governments liable for the misconduct of their officers. Under Supreme Court precedents, a city or county can be held liable only if its own policies caused the constitutional violation. In other areas of law, employers are held liable for their employees' wrong-doing on the job. This gives employers an incentive to exercise greater care in the hiring, training and supervision of employees.
Why must we wait for the next death of another unarmed Black man to galvanize the public? The problems are well-documented and many solutions are apparent. If the courts and the legislatures continue to do nothing, nothing will change.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.