Police Brutality Is Part of Our Democratic Crisis

It has been five years to the day since the torture and murder of George Floyd by police officer Derek Chauvin on a street in Minneapolis. The 9-minute video of the attack taken by a teenaged bystander, sent ripples of outrage throughout the country and the world. It confirmed the reality and terror that has threatened Black people in our country for more than a century. Now it was on display in its cold, cruel and deadly violence, for all to see. Amid the devastation of the COVID-19 pandemic, Americans in all 50 states took to the streets in the largest civil rights protests in our nations history.

Five years later, data meticulously collected by Mapping Police Violence[i] demonstrates that police killings have increased every year since George Floyds murder, even as violent crime, including the number of homicides have dropped across the country.[ii] Black people are nearly 3 times as likely to be killed by police as white people.

The prognosis for change is grim. Last month, President Trump issued an executive order purporting to unleash Americas law enforcement. Several weeks later the Justice Department announced an end to federal investigations of police departments suspected of engaging in patterns of unconstitutional policing, and an end to enforcement of existing consent decrees for police departments found to have done so.

Despite Trumps actions, police brutality has yet to make it into the robust and important discussions about the unraveling of American democracy. Prominent democracy advocates scholars of authoritarian rule, lawyers, Never Trumpers, Democrats who rightly seek to rally Americans against the rise of authoritarianism and lawlessness simply do not include in their public analysis of Americas descent into fascism, the critical role of systemic brutal and racist policing.

Night after night on cable television we hear conversations about the erosion of voting rights, free speech, government transparency, corruption all critically important components of democratic unraveling. Ongoing and systemic police brutality is absent from these discussions, even thought studies of authoritarian regimes around the world routinely identify police brutality and impunity as a feature of authoritarian rule.[iii]

As President Trumps Executive Order made clear last month,[iv] authoritarians understand very well the significance of lawless, brutal law enforcement to solidifying authoritarian rule. Trump has always advocated violent policing and protecting police from consequences for those actions.[v] He understands that keeping the citizenry frightened and cowed is best achieved by keeping the alive the fear of brutality by armed officers of the state. He also understands that for many white Americans, police brutality is an acceptable price to pay for the assurance that Black people will be kept in control from robbing or harming them, from playing music too loud,[vi] driving a fancy car, demanding that they leash their dog in a park,[vii] from watering flowers in a garden,[viii] or just being in a place where a random white person thinks Black people should not be.[ix] One thing Trump knows, is how to stoke and appeal to the fears of white people.

But this doesnt explain why the anti-Trump experts who help us understand the threats facing our democracy, omit the very serious role that law enforcement impunity plays in authoritarian regimes from their analysis of the threats we are facing in this country. Why is the racist, brutal, and even murderous policing not understood as a threat to the democratic integrity of this country?

The truth? Americans – Democrat and Republican – have failed to address the threat of unconstitutional policing to our democracy, despite seeing it with their own eyes in video after devastating video because Black people are the victims of law enforcements worst excesses. And unlike voting rights violations which are also targeted most often at Black and Latino voters, the consequences of police brutality appear to have no implications for political power since Democrats are not willing to take on ending it as part of their party platform, and Republicans explicitly support and advocate impunity for police misconduct.

Democracy experts have tacitly acquiesced in this calculation ignoring what would surely be recognized in any other country as feature of democracys collapse – because both political parties do not see police brutality as a threat to their partys fortunes, and because brutal, racist policing has become a shameful, but widely accepted feature of American life for the commentariat and for those at the top of the political food chain.

And this is where we find ourselves on the 5^th anniversary of the murder of George Floyd. Nothing is more telling and disheartening than the anemic reaction to the recent acquittal in the state trial of the Memphis police officers who killed 29-year-old Tyre Nichols. The murder of Mr. Nichols was among the most brutal, shocking and senseless police killings of the last 15 years. It was all the more shocking for coming less than three years after the so-called racial reckoning following the murder of George Floyd in Minneapolis and less than six months after the conviction of Derek Chauvin, the officer who tortured and murdered Floyd.

The brazenness of the officers who killed Nichols was stunning. The brutal attack was captured on multiple cameras, and at least one of the officers sent photos of the beating to other friends on the force. The officers are Black, and that added yet another dimension to the incident, proving again that racist policing is systemic and cultural and not the product of a few bad apples.

Tyre Nichols was confused by the relentless attack. I just want to go home he begged, as the officer rained down blows and kicks on his head. They chased him. They tased him. They peppered sprayed him. He never fought back or menaced the officers. He cried out for his mother as he was punched and kicked mercilessly.[x] Emergency medical aid took twenty minutes to arrive on the scene. No officers administered aid to Nichols. He died three days later. The cause of death was blunt force trauma. The case against the officers seemed like a slam dunk.

But three weeks ago, those officers were acquitted of all criminal charges by a state court jury.[xi]

In this time of short memories and destroyed records I want to make sure that we remember that this is as it has always been. We must remember that the officer who shot and killed Terrence Crutcher in Tulsa in 2016 was acquitted.[xii] She went on to serve as a deputy sheriff in another county.[xiii]

That the officer who shot and killed Philando Castile in St. Paul in 2016 was acquitted.[xiv] We watched Castile bleed out on the Facebook stream of his terrified fianc as her then-four-year-old daughter attempted to comfort her.

Although we watched 53 year-old Walter Scott shot five times in the back and legs as he ran from a police officer in a park in North Charleston in 2015, when the officer was tried before a state court, the jury was hung and the case ended in a mistrial.[xv] That officer sits in prison now solely because he was convicted by a federal jury on civil right charges brought by the Obama-era Department of Justice.[xvi]

Nine years after several officers were acquitted and charges were dropped against all of the officers involved in the death of Freddie Gray, we are expected to accept that somehow Gray crushed his own voice box and severed his own spinal cord in police custody in Baltimore City in 2015.[xvii]

In other words, as painful as the verdict in the Tyre Nichols case is, we have long known that state court juries rarely convict police officers for the killing of Black victims. The conviction of Derek Chauvin for the murder of George Floyd was anomaly, not the beginning of a new normal.

After Floyds death advocates pushed for reforms. I was among them. Many of us believed that the one way to disincentivize officers from engaging in racist and brutal policing would be to ensure that law enforcement officers were subject to personal liability, at least in part, for money verdicts in civil trials. It would not be a silver bullet, but it would powerfully increase the stakes for police officers to adhere to the law. To impose this liability would require ending qualified immunity, the legal defense created by the Supreme Court, which insulates officers from civil liability for violating the civil rights of civilians unless the officers conduct violates a constitution right, and clearly established legal precedent would have allowed an officer to know that his conduct was illegal. Subsequent cases removed the necessity of the first showing, allowing an officer to enjoy immunity from civil liability unless his conduct violates clearly established law.[xviii] The distortion of this doctrine by courts has protected officers against liability because of

the difference between subduing a woman for walking away from an officer, and subduing a woman for refusing to end a phone call; between shooting at a dog and instead hitting a child, and shooting at a truck and hitting a passenger; and between unleashing a police dog to bite a motionless suspect in a bushy ravine, and unleashing a police dog to bite a compliant suspect in a canal in the woods.[xix]

The Supreme Court has allowed these bizarre interpretations of qualified immunity to continue,[xx] [xxi] even though immunizing brutal cops in this way is contrary to the spirit and intention of the Reconstruction civil rights statute that was meant to authorize suits against officers of the state who violate the civil rights of Black citizens.[xxii]

Some federal judges from both sides of the ideological spectrum have grown profoundly skeptical of qualified immunity. Several have written long, scholarly opinions that appear designed to flag the issue for the Supreme Court to reconsider.[xxiii] This is good news, but for now the Supreme Court remains unmoved.[xxiv]

Efforts to enact national legislation to end qualified immunity have been unsuccessful. The George Floyd Justice in Policing Act, an omnibus bill that would have imposed a variety of reforms including an end to qualified immunity, passed the House of Representatives in the month following the murder of George Floyd. But the following year, Republicans in the Senate led by Senator Tim Scott (R-SC) refused to accept the terms of the bill, even after the National Fraternal Order of Police agreed to support the Act.[xxv]

The demand of movement activists to defund the police became a political third rail in the calculation of many Democrats. Political pundits continue to cite the association of Democrats with this demand as the cause of party electoral losses. But Democrats never embraced the defund movement, and police departments were never defunded. In fact, police budgets have only increased since 2020.[xxvi] Like woke and DEI, defund in political rhetoric is a shorthand, used to wave candidates away from associating themselves too strongly with issues of racial justice.

Healthy democracy cannot exist in a country where armed officers of the state can do what they did to Tyre Nichols and get away with it. But admitting this would compel us to concede what I have said for years. Trump did not begin the unraveling of our democracy. He has been an accelerant. If we are to build a stronger democracy in this country, Americans will need to take responsibility for the many doors that were left open for Trump to walk through. If we make it out of this period with the remnants of democracy in place, this particular door of brutal, racist policing by armed officers of the state – must be closed.

Although acquitted of state charges, the men who brutalized Tyre Nichols either accepted guilty pleas or were convicted last year by the Biden-era Justice Department of federal constitutional violations,[xxvii] and are slated to be sentenced on June 11th.[xxviii] It remains to be seen whether or how the state acquittal might affect federal sentencing, or what position this Administrations Justice Department will take at the sentencing next month, and thereafter. But we should recognize that the stakes are critical, not just for the memory of Tyre Nichols and his heartbroken parents. Not just for Black communities. But for American democracy itself.

[i]

https://mappingpoliceviolence.org/

[ii] https://www.nytimes.com/2025/05/24/us/police-killings-george-floyd.html

[iii] See e.g., https://www.hrw.org/news/2022/12/13/fatal-beating-police-roils-philippines ; https://www.csis.org/analysis/police-violence-and-corruption-russia-prevalence-correlates-and-consequences;

[iv] https://www.whitehouse.gov/presidential-actions/2025/04/strengthening-and-unleashing-americas-law-enforcement-to-pursue-criminals-and-protect-innocent-citizens/

[v] https://abcnews.go.com/Politics/trump-police-nice-suspects/story?id=48914504

[vi] https://www.syracuse.com/crime/2024/05/syracuse-to-pay-90000-to-settle-lawsuit-from-forceful-arrest-over-loud-music.html

[vii] https://www.nytimes.com/2020/07/06/nyregion/amy-cooper-false-report-charge.html

[viii] https://www.npr.org/2022/09/01/1120404218/pastor-arrested-watering-flowers-alabama

[ix] https://apnews.com/article/race-and-ethnicity-racial-injustice-seattle-african-americans-3bfdd7f5c7bfd9fca701c10f40c42672

[x] https://www.cnn.com/2023/01/27/us/tyre-nichols-memphis-friday

[xi] https://www.cnn.com/2025/05/07/us/tyre-nichols-memphis-officers-trial

[xii] https://www.npr.org/2017/05/18/528998585/tulsa-police-officer-acquitted-in-fatal-shooting-of-unarmed-black-man

[xiii] https://www.cnn.com/2017/08/10/us/tulsa-police-officer-hired-as-deputy/index.html

[xiv] https://www.nytimes.com/2017/06/16/us/police-shooting-trial-philando-castile.html

[xv] https://www.nytimes.com/2016/12/05/us/walter-scott-michael-slager-north-charleston.html

[xvi] https://apnews.com/article/shootings-police-walter-scott-michael-slager-south-carolina-9bc7b58a116fbc451671da2a96c3c6b9

[xvii] https://www.nytimes.com/2016/07/19/us/freddie-gray-baltimore-police.html

[xviii] Pearson v. Callahan, 555 U.S. 223 (2009)

[xix] https://www.reuters.com/investigates/special-report/usa-police-immunity-scotus/

[xx] https://www.forbes.com/sites/nicksibilla/2020/06/15/supreme-court-refuses-to-hear-challenges-to-qualified-immunity-only-clarence-thomas-dissents/

[xxi] https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-21/issue-1/qualified-immunity/

[xxii] Alexander Reinert, Qualified Immunitys Flawed Foundation, 111 Cal. L. Rev. 201 (2024) https://www.californialawreview.org/print/qualified-immunitys-flawed-foundation

[xxiii] See e.g., https://www.cato.org/blog/judge-willett-concurrence-highlights-qualified-immunitys-flawed-foundation ; https://www.themarshallproject.org/2024/05/25/police-mississippi-courts-judges-qualified-immunity .

[xxiv] For a comprehensive analysis of how qualified immunity has contributed to a system of impunity for unconstitutional policing, read Joanna Schwartzs important book, SHIELDED: HOW POLICE BECAME UNTOUCHABLE (Viking Press, 2023).

[xxv] https://www.nytimes.com/2021/09/22/us/politics/police-reform-booker-scott.html

[xxvi] https://abcnews.go.com/US/defunding-claims-police-funding-increased-us-cities/story?id=91511971

[xxvii] https://www.justice.gov/archives/opa/pr/three-former-memphis-tennessee-police-officers-convicted-federal-felonies-related-death-tyre

[xxviii] https://apnews.com/article/tyre-nichols-death-memphis-police-sentencing-08a6812ca05ab0368ae325e2405b9370