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The Tyre Nichols Case Shows How Police Have Become Increasingly Unaccountable, Historian Says

Families of victims of police brutality gathered this week in Memphis for the funeral of Tyre Nichols, a 29-year-old Black man who died three days after being beaten and pepper-sprayed by police at a traffic stop. A combination of body cam and surveillance camera video released by the city showed the beating that Nichols endured in detail. The officers were part of a since-disbanded squad called the Scorpion Unit, which was formed to target Memphis’ pandemic-era violent crime surge. They now face second-degree murder charges.

“This is a family that lost their son and their brother through an act of violence at the hands and the feet of people who have been charged with keeping them safe,” Vice President Kamala Harris said to mourners at the funeral.

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As the world looks to Memphis as the latest example of police violence, a new book, Shielded: How the Police Became Untouchable, out Feb. 14, explores the breakdown in accountability for police misconduct cases.

The author is UCLA law professor Joanna Schwartz, an expert on police misconduct litigation. As she describes her work: “When there is a person whose rights have been violated, what do we afford them, and what do we do to prevent those kinds of incidents from happening again?”

In the below conversation, Schwartz addresses what she sees as the biggest myths about policing. She also explains the origins of immunity for officers and how that continues to thwart police reform efforts.

TIME: What specific things did you see in the video footage out of Memphis that made you think of how it’s become harder for police to be held accountable?

SCHWARTZ: There’s so much to take from that video. One thing that really struck me from watching the video was the fact that there were so many officers on the scene, so many officers striking Tyre Nichols, spraying Tyre Nichols while he was on the ground, not a threat, not resisting, and no one intervened. No one seemed to have any concerns about what they were doing. And then afterwards, the officers were standing around joking about how hard and how many times they hit Tyre Nichols, laughing about the fact that one officer seemed to have hurt his knee in this fatal assault. And there seems to be a real lack of concern about what they have done.

A lack of any urgency to get this person aid indicates that these officers don’t believe that what they have done is extraordinary or of great concern. That indicates to me that there is a systemic problem, that there are much deeper institutional problems than a small group of bad apples. And there is a belief that there’s not going to be consequences.

Read more: The Birth of the U.S. Police Force

Zooming out from the Memphis video, why do some police officers behave this way?

There are a number of different origin stories that people offer to explain what’s happening. In the South, law enforcement agencies and the officers emerged in the 19th century out of slave patrols, and so violence and racialized violence—violence against Black people—was ingrained into law enforcement, from the very beginning. Policing has been vicious and violent from the start. In the early 1930s, there was the first federal investigation of law enforcement called the Wickersham report. The study on police lawlessness found the use of the third degree—meaning torture—to produce confessions was happening around the country.

Of course, not all police violate the law. Not all police are bad. There’s evidence that most police officers never pull out their gun at all. Phil Goff is a researcher who’s done a lot of work exploring what kinds of psychological markers are correlated with officers drawing their gun more often.

Another aspect is the use of these specialized, really aggressive forces like Scorpion [in Memphis]— these elite units who are called on to essentially go out and rough people up. We have a long history of using these kinds of elite units in agencies across the country, particularly in moments where there are spikes in crime or gun use. And they’ve proven again and again to be hotbeds of violence and misconduct and constitutional violations.

Read more: The Problems with Policing the Police

I think our readers might wonder, how often do police officers get in trouble for this kind of behavior?

When there’s conversation about the need for extra oversight and accountability of policing, the talking point in response is often that police can police themselves and do police themselves. But all of the evidence that we have points to the contrary. All of the evidence that we have suggests that officers are very rarely disciplined or fired. Even when they have engaged in egregious misconduct. And even when officers are fired, union agreements often have very elaborate disciplinary appeals processes, which means that officers often get their jobs back, even when the department has taken the extraordinary measure to fire the officer.

Agustin Paullier/AFP—Getty ImagesProtesters rally against the fatal police assault of Tyre Nichols, in front of the Los Angeles Police Department headquarters in Los Angeles, California, on January 28, 2023.

Why is it rare, as you say, for officers to get fired for misconduct?

These are cases in which officers are or when law enforcement officials are investigating their own. And outside auditors—when they have looked at internal affairs investigations files and compared them with litigation files—have found that litigation in the courts reveals far more information than internal affairs investigators do. Department of Justice reviews have found that internal affairs investigators often don’t do the kind of basic investigatory work that they would do if they were trying to solve a crime. They don’t interview all of the relevant witnesses. They don’t question when officers submit virtually verbatim descriptions of an event. Even when they reach a finding of wrongdoing or policy violations, there tends to be an elaborate process about the proper consequences that is a product of union agreements, to allow officers to contest any finding of discipline or firing against them. And that means the rare decision to fire an officer is [often] reversed, and the officer is reinstated to the job. There are many aspects of the system of internal discipline that make it very difficult for officers to get disciplined or fired in these cases, even when they violated policy, even when they violated the Constitution.

Has police behavior changed as a response to what’s happening in history at the time?

Certainly, you saw that in the later 60s with all of the protests, assassinations, and riots. It was partially that the law enforcement agencies themselves are calling for the need for more force. And the Supreme Court began interpreting the Fourth Amendment in ways that gave police more leeway to stop and frisk. And that authority, I would say, emboldened police to engage in stop and frisk as a law enforcement strategy, which has led to millions upon millions of people being stopped, and then many being assaulted and some being killed as a result. That push was born from the tumult in the 60s.

Has there been an attack on police officers that shaped the way they responded to calls or stops?

There’s been, in recent years, a rise to prominence of certain kinds of training that are really focused on emphasizing the threat to officers. I should say, of course, at the outset, officers do dangerous work and they do put their lives at risk. But training videos related to police stops have focused on the very, very small number of cases in which officers have been shot or assaulted during vehicle stops. These kinds of assaults of officers during vehicle stops are exceedingly rare, extremely rare, but are used in trainings to suggest that this is run-of-the-mill and happens all of the time. And it’s no surprise then that officers are very nervous about vehicle stops and the potential violence that they’re going to face in the vehicle stop.

Add that training with the law enforcement officers’ strategies or the policymakers’ strategies of using vehicle stops as a way to fight crime, that’s essentially what was happening in Memphis in the Scorpion Unit. The chief said the goal was to stop people who were driving recklessly, take their cars, and prevent crime and misconduct from occurring. So if you mix trainings that suggest that officers’ lives are at risk every time they stop a car with law enforcement policies to stop cars as a means of stopping crime, you’re creating a toxic mix. When officers or anyone is forced to make quick decisions in times of high stress, they are going to make mistakes and make decisions that are going to lead to people using force.

Read more: Society Is Paying the Price for America’s Outdated Police Training Methods

Is there an origin story for legal impunity for police officers? Does it date back to a certain era or court case or police department?

The statute that gives people the power to sue police for constitutional violations was a product of the Reconstruction after the Civil War, when Black Americans were being assaulted and killed by white supremacist groups, and law enforcement was either participating or standing idly by. Enacted in 1871 and referred to as the Ku Klux Klan Act, it gave people the power to bring claims in federal court, instead of relying on state court where Black people weren’t even allowed to testify. The thought was that those cases could deter future misconduct. That was a momentary high point.

And then very quickly, the Supreme Court essentially robbed both that statute and the 14th Amendment and other Reconstruction Era statutes of any power through various decisions. The right to sue essentially went dormant for 90 years, until in 1961, during the rise of the civil rights movement and in light of lots of high profile cases of police misconduct in the South and in the North. The Supreme Court issued a decision in 1961 called Monroe v. Pape that said that people could sue law enforcement officers who violated their constitutional rights. People started filing cases, and the same kinds of rhetoric that was used to oppose the statute in 1871 was used in the years immediately after 1961: that the courts were going to be filled with frivolous lawsuits, officers were going to get bankrupted by these cases, and no one would agree to be a police officer if there was this powerful right to sue.

Those claims, made in newspapers and by public officials, were then adopted by the Supreme Court when it created the qualified immunity doctrine in 1967. And then it repeatedly strengthened qualified immunity over the years. The court used those same concerns to create other restrictions on the power to sue local governments for constitutional violations by their officers.

George Floyd Justice in Policing Act of 2020
Bill Clark/CQ-Roll Call, Inc—Getty ImagesCongressional Black Caucus Chair Rep. Karen Bass, D-Calif., speaks as then-Speaker of the House Nancy Pelosi, D-Calif., and House Democrats gather for a press event on the House steps ahead of the vote on the George Floyd Justice in Policing Act of 2020 on June 25, 2020.

After George Floyd’s murder [in 2020],Congress took up the George Floyd Justice in Policing Act, and more than half of the states across the country introduced bills essentially to create a state power to sue without the protections of qualified immunity. And arguments about too many frivolous cases filling the courthouses and bankrupted officers ended up being part of the reason that Congress did not pass the George Floyd Justice in Policing Act and [have contributed to the] defeat of many of the police reform legislative efforts that have been percolating in the States.

Read more: The Debate Over Qualified Immunity Is at the Heart of Police Reform. Here’s What to Know

In 2022, the Washington Post had reported that cities spent more than a billion dollars to settle police misconduct suits with thousands of officers nationwide. Do these settlements deter police reform?

These settlements and judgments when they occur, offer justice or some manner of justice to people whose rights have been violated. Whether they deter future misconduct is another question. When I did another study of 100 police jurisdictions’ budgeting and payment of police misconduct cases, I found only in very rare cases do police departments actually suffer financially when their settlements and judgments go up.

The city of Chicago is a place that I talk about a bunch in the book, where the city gives the police department a certain amount of money to spend every year in settlements, in judgments, and the police department blows through that budget before the end of the year. Invariably, in one of the years I studied, it was in the first quarter of the year, and then the excess money is taken from other parts of the city budget. When I talked to folks in Chicago, a former attorney who worked in the city’s law department mentioned that money was being taken to pay for these settlements and judgments from lead paint screening in the poorest neighborhoods in the city. So not only is there money being taken from the police department, it’s being taken from services that are being earmarked to help the most vulnerable people in the city and the people who are disproportionately the subject of police violence.

Were there certain cases of police brutality that changed the way police operated?

The beating of Rodney King [in Los Angeles] inspired Congress to enact a law that gave the Department of Justice authority to investigate police departments for unconstitutional patterns and practices of conduct. And then after George Floyd’s murder, states and localities across the country have passed bills or laws prohibiting chokeholds and—inspired by Breonna Taylor’s killing—laws prohibiting no-knock warrants. We’re still in the process of seeing what the after-effects are of Tyre Nichols’ murder. But we see that the Scorpion Unit has been disbanded in Memphis, and I am guessing that departments are going to be taking a closer look at their so-called elite units in the coming weeks and months.

So these horrifying events do have an impact, do influence laws and policies and practices. Maybe not, certainly not as much as I would hope that they would, but they do have an impact.