Government

CATO Institute Is 100 Percent Right About Police Brutality

Broken clocks and what have you.

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Young police officers laughing standing near car, successful patrol shiftJulius Caesar sided with CATO more often than I do, but the organization deserves proper recognition when it absolutely nails an issue. Tyre Nichols joined a growing list of innocent Black people killed by police that shows no sign of slowing down. Every time another brutal killing comes to light, there’s a cycle of deep concern, followed by political waffling, and then moving forward unchanged until the next death. Nestled in the middle of this cycle is the juncture where the court system issues a long, beautiful jeremiad about the dangers of qualified immunity followed by exonerating the cop anyway… citing qualified immunity.

There’s not much “qualified” about qualified immunity these days. The Supreme Court not only upholds the doctrine that government actors can’t be held accountable for actions committed within the scope of their duties, it’s actively stretched the scope of police duties to infinity. What exists today is absolute immunity in all but name, even though the whole doctrine rests upon a copying error.

Qualified immunity springs from a certain logic: government actors reasonably and faithfully executing their duties shouldn’t be constantly hailed into court. But “reasonably” has departed the building when police are setting people on fire and getting the benefit of qualified immunity.

It’s also a terrible mechanism for, well, policing misconduct. If actors believe they’re shielded from responsibility in most instances, it incentivizes bad behavior. A crude analogy would be like declaring drivers free from liability for traffic laws as long as they aren’t driving under the influence. People are going to hammer that gas pedal and to hell with turn signals.

And while the CATO Institute spends most of its resources demanding that the federal government allow toxic dumping directly onto orphanages, the anti-government bur in its saddle sometimes gets it exactly right.

Thus, while employer liability is an important part of policing reform, it must be a supplement to qualified immunity reform, not an alternative to it. Shared liability—not employer-​only liability—is the system that ensures a full remedy for victims of misconduct, creates deterrent incentives for both individuals and public employers, and encourages states and localities to experiment with different methods of apportioning liability between officers and police departments (including, for example, funding insurance policies for individual officers).

End qualified immunity and make officers carry employer-employee-funded professional liability insurance. Funds a pool of resources to compensate victims, places carriers in the position of evaluating risk and charging premiums accordingly, creates an incentive for departments to separate from problem officers… it checks off every box. This is the not only the best mechanism on the table to spur genuine reform, it’s also politically feasible in a way that threatening budget cuts isn’t. Most folks think that cutting police budgets would increase crime — which is wrong, by the way — but “maybe cops should be held to at least the standard of teenagers with their first car” is not a hard sell.

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At least it shouldn’t be a hard sell.

The Killing of Tyre Nichols Reaffirms the Urgent Need for Police Accountability [CATO]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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