The killing of Tyre Nichols brings police reform back into the public debate

It shouldn’t have taken the brutal killing of Tyre Nichols by Memphis police officers to revive the conversation about police reform, but it seems here we are. However, after too many such tragedies, real reform will be needed to avoid more such incidents in the future.

In 2020, it seemed that years of debate about paramilitary law enforcement, biased cops, and overpolicing would finally bear fruit. The killing of George Floyd by a Minneapolis police officer has sparked protests, riots and a movement to change the way police interact with the public. Some laws holding police accountable and easing the burden of the criminal justice system have been approved, and several reformist prosecutors have been elected to office.

But crime later rose, fueled in part by the damage caused by pandemic stay-at-home orders that increased social and economic stress. Also, some of the “reform” prosecutors seem to think they have a mandate to reconstruct American society rather than improve criminal justice. Sometimes they even denounced law enforcement meant to protect the people they supposedly served. And many cops saw not just bad cops, but all of them, as targets for protestors and reformers—understandable in an era of “deprived police” and “all cops are bastards.” We started to see stories of police demoralization and officers leaving the job.

The passion for criminal justice reform seems to have passed. But then Tire Nichols was beaten to death, on camera, by police officers while their colleagues watched. The police have yet to change.

“Fundamental questions remain about what we should empower police to do and how to restore trust between police and the communities they serve,” UCLA law professor Joanna Schwartz wrote this week in Atlantic. “But regardless of how governments ultimately answer these questions, they will almost certainly continue to empower people to protect public safety. And some of those people will almost certainly abuse that power. We need to make our system of government accountability work better than works, regardless of what our public safety system looks like.”

Schwartz’s article is adapted from her book Protected: How the police became untouchable, publishes this month. It deals with qualified immunity, a Supreme Court doctrine that holds officials liable only if courts have found nearly identical conduct to be unconstitutional.

“What began as protection for officers acting in good faith has turned into protection for officers fortunate enough to violate the Constitution in a new way,” she writes.

Schwartz also examines various other policies and court decisions that protect police officers from consequences. These include requirements that plaintiffs suing police officers “include sufficient factual detail in their initial complaints to establish a ‘plausible’ right to relief.” This means that the police can protect themselves by withholding key information about encounters with the public. Ultimately, she argues, it should be easier to hold police and government agencies accountable for law enforcement misconduct.

Beyond legal accountability, other reformers suggest that too much is being asked of the police, creating the conditions for conflict and tragedy.

“A traffic stop shouldn’t be a harrowing or dangerous experience, but it all too often is for people of color,” Sarah A. Seo of Columbia Law School wrote in 2021 regarding the police killing of Daunte Wright, but equally applicable to the killing of Tire Nichols. “How can we reduce traffic stops without undermining public safety? The solution is to reduce our reliance on human enforcement.”

Seo’s faith in traffic cameras may strike many as a faint hope, if not a different route to abuse. The truth is, however, that flaws in automated enforcement are generally neither malicious nor lethal. Excluding police officers from enforcing trivial traffic rules could reduce the potential for conflict.

In the same way, reformers call for the expulsion of the police from the work of social work.

“Fewer than 1 in 50 adults in the US, people with untreated serious mental illness are involved in at least 1 in 4 and as many as half of all fatal police shootings,” reports the Treatment Advocacy Center on mental health issues. “Because of this prevalence, reducing on-duty encounters between law enforcement officers and individuals with the most severe psychiatric illnesses may represent the most immediate, practical strategy for reducing fatal police shootings in the United States.”

Reducing police interactions with the public while refocusing on their primary role is similarly a concern of Bentley University economist Scott Sumner.

“If we dramatically reduced the number of laws, then the police would have less leverage to harass the public. Power corrupts, and the police will have an enormous amount of power in a country where thousands of consensual acts are illegal. Even minor offenses such as loitering and loitering are used as excuses to harass people, often members of minority groups,” he wrote in June 2020. “About 400,000 people are currently incarcerated for drug-related crimes, often activities that wouldn’t even be illegal in other states. We’d be much better off that the police focused on protecting us from violent criminals, not trying to tell us how to live our lives.”

Radley Balko, formerly of Reason and a critic of the militarization of the police force, suggests that the police should abandon special forces-style units. This includes the Street Crimes Operation Restoring Peace to Our Neighborhoods (SCORPION) to which the officers who killed Tyre Nichols belonged.

“The SCORPION program has all the hallmarks of similar ‘elite’ police teams across the country, brought together for the broad purpose of fighting crime, operating with far more space and less oversight than regular police officers,” he wrote this week. “In city after city, these units have proven that putting officers in street clothes and unmarked cars‌, then giving them less oversight, an open-ended mandate and a scary name erodes the community trust that police forces need to keep people safe.”

Many of these proposals are included in a comprehensive 2021 reform proposal prepared by Rashawn Ray of the Brookings Institution and Clark Nelly of the Cato Institute. Among their concerns is a culture of police “often seen as warriors at war with the people in the communities they serve.” Ray and Nelly proposed a series of changes to police roles, training and legal responsibilities.

Law enforcement reform is a balancing act between protecting people’s lives, liberty and property from the criminals who stalk them, and enabling the protectors to become predators themselves. But the brutal beating of Tyre Nichols by police shows again that reform may be difficult but necessary.

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