HOW THE SUPREME COURT KILLED TYRE NICHOLS BEFORE HE WAS BORN
Photo Credit: Memphis Police Department, Jan. 7, 2023.
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It wasn't just the five cops who tortured and beat Tyre Nichols on a public street, in full view of cameras, who killed him. The Supreme Court and its decisions granting police immunity from civil rights lawsuits killed him too.
Nichols was driving home to his mother's house in Memphis, Tennessee when police stopped the car he was driving Jan. 7.
Police pointed guns at the unarmed 29-year-old Fed-Ex worker. They pulled him from the driver's seat, threatened to Taser him and threatened to kill him. When Nichols ran for his life from the unprovoked assault, the police made good on their promise to kill him and beat Nichols to death. Police continued beating Nichols after they pepper-sprayed and handcuffed him. Some police officers beat him until they were out of breath, took a break, got their breath back, then resumed beating the handcuffed prisoner, video shows.
No police officer rendered medical aid. Nichols died 3 days later, Jan. 10.
Police killed Nichols for no good reason. The cops who pulled Nichols over claimed it was because he drove recklessly. However, Memphis Police Chief Cerelyn Davis told CNN that investigators canvassed all available video evidence from police body cameras, cameras in police vehicles and police surveillance cameras on light poles in the area and found it failed to corroborate the killer cops' claim that Nichols drove recklessly.
"If something occurred prior to this stop, we've been unable to substantiate that," Chief Davis reported.
Memphis police officers Tadarrius Bean, Demetrius Haley, Desmond Mills Jr., Emmitt Martin III and Justin Smith were fired Jan. 18. They were all arrested Jan. 26 and charged with second-degree murder, aggravated assault, aggravated kidnapping, official misconduct and official oppression. All were released on bail.
Nichols' killing caused the average American to question why are people still being killed by police for no good reason?
How could this happen 10 years after George Zimmerman shot and killed 17 year-old Trayvon Martin for no good reason in Florida? Eight years after the NYPD choked Eric Garner to death for no good reason and officer Darren Wilson shot and killed Michael Brown in Ferguson, Missouri for a suspect reason? 2 1/2 years after George Floyd was murdered by St. Paul, Minnesota police, on a public street in the middle of the afternoon surrounded by bystanders? 10 years of Black Lives Matters and the cops keep killing Black Americans like it's 1823 instead of 2023?
In this latest atrocity, all five officers were black, like Nichols. How could five black cops beat another black man to death?
The answer cops themselves give is that the killer cops weren't "real" police. It was "a criminal assault under the pretext of law," according to the president of the Fraternal Order of Police. Criminal justice reform activist Van Jones theorized systemic racism was to blame. Politico blamed paramedics. The Memphis police department itself apparently blamed the special street crimes unit the killer cops belonged to, code-named "SCORPION," and shut it down. Others blamed lack of effective supervision.
These critiques mistake the forest for the trees: the Supreme Court and the culture of police impunity its qualified immunity doctrine created is the real reason five cops felt they could kill Nichols on a public street, in front of cameras, and get away with it. Cops aren't cops anymore. They're Anarchists. There's no law they won't break.
The Constitution is the blueprint that structures Government in America. Under the Constitution, the Supreme Court is charged with deciding the meaning of the Constitution itself, among other things. That includes the Constitution's first 10 amendments, called the Bill of Rights. While the original Constitution is specific, the rights guaranteed by the Constitution's first 10 amendments are broad, vague and general. They're like this, of course, by design: to remain viable guide posts through centuries and changing mores they can be nothing more.
This gives the Supreme Court enormous power to decide what is, and what isn't, a Constitutional right. It effectively gives the Court the power to establish rules all public officials, including police, have to follow. The Court exercises this power through court decisions that interpret the broad language of the Constitution to decide what specific rights it guarantees. For example, the Supreme Court decided in Brown v. Oklahoma (1972) that the First Amendment guarantee "Congress shall make no law ... abridging the freedom of speech" includes the right to call police officers “Motherfucking fascist pig cops”
The Supreme Court has, through scores of decisions, established a number of rules like this all police are supposed to follow. At the same time the Court has established these rules, it also created a giant loophole that makes these rules almost meaningless. This giant loophole is called "qualified immunity." Qualified immunity shields cops from responsibility even if they violate the Constitution. All they have to do is convince a judge the specific Constitutional right at issue was not "clearly established." Even if a right was clearly established, "objectively reasonable" violations are also excused.
In practice, qualified immunity is absolute immunity. Cops know it, and act accordingly: with impunity.
By excluding police from having to adhere to the Constitution, qualified immunity has freed police from any meaningful independent accountability whatsoever. Police departments know qualified immunity, in effect, means absolute immunity and police departments train cops techniques to guarantee that, if they are sued, the lawsuit gets dismissed because of qualified immunity.
That's according to Serpico. Yes, that Serpico. He's still alive and fighting for justice.
Harlow v Fitzgerald is the 1982 Supreme Court decision that killed the 29 year-old Nichols in 2023. The Court killed him before he was even born.
Fitzgerald worked for the Secretary of the Air Force. He blew the whistle to Congress on cost overruns in a project to build more warplanes for the hopeless war in Vietnam, overruns concealed by Pentagon officials. He was punished by firing, allegedly by order of President Richard M. Nixon--who was captured on a publicly-revealed voice recording bragging about it. Fitzgerald sued Nixon and his aides for wrongful, retaliatory termination.
The Supreme Court decided in a separate case, Nixon v. Fitzgerald (1982), that President Nixon himself had absolute immunity from the lawsuit. It decided Fitzgerald's lawsuit against the aides in a separate case, Harlow. The aides claimed absolute immunity like their boss, the President. The Supreme Court decided, in an 8-1 opinion, that the aides were not entitled to absolute immunity but that they were entitled to something called qualified immunity. Qualified immunity is not found in any part of the Constitution or any statute enacted by Congress. Its something the Supreme Court just made up.
Congress has the power , under the Constitution, to effectively overturn the Court ruling through legislation, but it never has.
After creating this powerful legal tool for former aides of President Nixon to defeat a lawsuit against them specifically, the Supreme Court went even further. It extended qualified immunity to not just Nixon's aides, but to everybody: every cop and every other kind of public official in America. After Harlow, public officials could follow the basic rules the Constitution requires, or not. The Supreme Court effectively made the Constitution optional.
The Court specifically worded its decision so that it applied not just to presidential aides, but to all "government officials performing discretionary functions," including police. They "generally are shielded from liability for civil damages."
Why did the Court feel compelled to create qualified immunity for all?
During oral argument in the case, justices expressed concern about a rising number of civil rights lawsuits as if they were clogging up the federal courts with frivolous claims instead of seeking to hold public officials to the basic rules of American Democracy. The Supreme Court viewed the lawsuits as something of a nuisance, to be cut back, trimmed, reduced.
Here's future Chief Justice William Rehnquist questioning Harlow's lawyer, Nixon's former US Attorney General Elliot L. Richardson, about the best way to make it harder for victims of civil rights violations to win in court.
QUESTION: Mr. Richardson, do you think that the so-called higher standard of proof or putting the burden on the plaintiff rather than the defendant ... would actually avoid many trials? Do you think any summary judgments could be granted with confidence in cases where your standards were adopted ...?
RICHARDSON: I think, Justice Rehnquist, that if this Court were in effect to re-enforce the policy reflected in its plurality opinion in Butz against Economou, that it could significantly reduce the number of cases that would have to go to trial and increase the number in which a motion for summary judgment was granted....it can partially reach, partially remedy the undesirable byproducts of Butz against Economou by making it harder to get to court.
It was at this extremely dense and complex moment that the judge who ended up writing the Court's opinion in the case, Justice Lewis Powell, interjected with an idea to make it even harder for victims of civil rights violations by police to hold the police accountable.
QUESTION: What if the malice end of it or the bad faith of it was wholly eliminated, and you had only an objective test of the immunity, whether a reasonable person should have realized that his action was unlawful?
RICHARDSON: That would be a way of partially narrowing the number of cases required to be submitted to trial...
QUESTION: But it would—it wouldn't eliminate certainly some preliminary proceedings, but on summary judgment it would be a little different matter—
RICHARDSON: Yes.
QUESTION: - than if the malice part were still in the case.
RICHARDSON: Yes. To that extent it would be a contraction of the very wide ramifications of the combination of Butz against Economou on the one side and Bivens on the other, the combination of which has been to generate over 2,000 Bivens type cases now pending, of which to date only nine have resulted in the award of damages. The result has been the generation of an enormous volume of litigation with dubious public policy benefit.
Stop. There. Right there. There you have Nixon's former US Attorney General convincing the Supreme Court that civil rights lawsuits have "dubious public policy benefit."
That's the quiet moment, Nov. 30, 1981, in the majestic, cavernous chamber of the United States Supreme Court in Washington, D.C., that an unborn baby to be named Tyre Nichols (born June 5, 1993) was sentenced to die on a Memphis street in 2023 by cold, calculating killers wrongly called "justices."
Soon-to-be-filled grave of Michael Brown, St. Peter’s Cemetery, before the funeral, Ferguson, Missouri, Aug. 22, 2014. Photo Credit: JB Nicholas.
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