A Few Reflections on the Horrifying Police Murder of Tyre Nichols
by Michael C. Dorf
Along with millions of other Americans, I was horrified and sickened by the police murder of Tyre Nichols. I am also somewhat in awe of his mother and family for how they have handled this devastating loss--promoting the public good even while experiencing unimaginable grief. I don't claim to have any special insight, but I also don't think it would be appropriate to say nothing about this incident. Accordingly, I offer three observations regarding: (1) traffic stops; (2) excessive force; and (3) race.
(1) The Stop. Nichols was supposedly stopped for reckless driving. The videos that were released Friday night begin after his car was stopped, so they do not reveal whether in fact Nichols drove recklessly, but Memphis Police Chief Cerelyn Davis, who presumably has access to more information, said that there isn't evidence to substantiate the reckless driving charge. If Nichols was not in fact driving recklessly, one wonders why he was stopped. That question might never be answered satisfactorily.
More broadly, however, police frequently stop drivers for both serious and not-at-all serious offenses. Given the risk that any police-citizen interaction during a traffic stop will turn violent, police should not be stopping drivers for traffic violations that do not endanger public safety, such as: modest speeding; a damaged tail-light; rolling through a stop sign; etc. The ubiquity of traffic cameras and related technology enables the enforcement of much of the traffic law in the same way that highways now routinely collect tolls from drivers who do not have a transponder (like an E-ZPass) on their car: by mailing a ticket.
The idea of remote enforcement of the traffic law to minimize safety risks (for both drivers and police officers) is hardly new. Over two decades ago, Sherry Colb argued that the Fourth Amendment and the Equal Protection Clause (in light of the racial disparities in policing) should be construed to limit traffic stops to occasions in which there is a serious threat to public safety.
Technology provides one means of reducing police-citizen interactions at traffic stops. A complementary approach is the wonkish and less-politically-fraught version of "defund the police"--whereby governments use armed police for only those tasks that truly require armed force. Ithaca (where I live) is moving towards this approach. It serves as a model for the proposal by People for the American Way that other localities do the same--which is not all that surprising: Svante Myrick, the President of People for the American Way, was, until recently, the Mayor of Ithaca.
(2) Excessive Force. Although some thoughtful (and also some not-so-thoughtful) people advocate actual abolition of the police, that is simply not a politically feasible option in any U.S. locality. Accordingly, even in places (like Ithaca) that transfer some tasks now performed by the police (like health and safety checks, mental health calls, and low-level traffic enforcement) to unarmed and differently trained personnel, there will remain occasions during which police interact with civilians. Thus, beyond reducing the number of such interactions, it is also important to reduce the likelihood that these interactions turn violent. The question is how.
The now-former Memphis police officers who murdered Tyre Nichols did so by beating, kicking, tasing, and spraying him with an eye irritant, but a great many police killings of civilians are accomplished with firearms. Had Kimberly Potter not been carrying a firearm, she would not have reached for it, rather than a taser, to kill Daunte Wright. The vast majority of police in the UK do not carry firearms. Is that an option in the U.S.?
Yes and no. Certainly, police should receive better training in how and when to--and at least as importantly, when not to--use their firearms. Moreover, there are probably police who now routinely carry firearms who do not need to. However, thanks to America's gun culture (warmly embraced by our far-right Supreme Court), the U.S. and U.K. aren't entirely comparable. With so many more Americans who carry firearms, there is some greater need for police here to do so as well.
To be sure, that's a technology-dependent proposition. Tasers can only be fired from short range and do not inevitably and immediately immobilize their target. Thus, if a suspect brandishes a gun at a police officer who is armed with both a gun and a taser, the officer is justified in responding with deadly force. However, if there were a reliable method of temporarily disabling an assailant with the same efficacy as a lethal firearm, then it would be unreasonable to use deadly force. I Googled "stun guns that act at a distance" and found a variety of offerings, many of which post numerous positive reviews, so it's possible that the technology already exists--something like a Star Trek phaser set to stun. But if it doesn't, developing and deploying this technology ought to be a high priority.
So much for guns. What about the actual means by which the police murdered Nichols? So far as I can tell from the videos, at no point did Nichols pose a threat to the officers. True, he did try to escape, but that was because the police were already attacking him. And what were probably the fatal blows were delivered when Nichols was on the ground completely within control of the police. The tragic fact that Nichols was calling out "mom" to appeal to his mother (whose home was very nearby) ought to have alerted the police to the fact that they were hardly dealing with a dangerous criminal. There is no remotely plausible justification for the (former) officers' conduct.
Nonetheless, if the (former) officers don't plead guilty, I expect that they will offer the same sort of defense that the officers who beat Rodney King in 1991 did to sickeningly successful effect in the state court trial: they'll say the videos are incomplete; they'll break them down into meaningless frame-by-frame shots; they'll contend that in the moment it was reasonable for the police to think they were under attack. One can only hope that the defense fails in this case.
Even so, although holding the (former) officers accountable through the criminal justice system is important, it's arguably even more important to prevent the recurrence of such heinous acts. To do that it's important to understand why they occur in the first place.
In Tangled Up in Blue, her cleverly titled and thoughtful account of policing (based partly on her experience as a reserve police officer in the DC police), Georgetown Law Professor Rosa Brooks aptly describes the contradiction that lies at the heart of policing. Even as training ostensibly teaches new officers how to de-escalate and support the community, Brooks writes that "[t]he chief lesson at the [police] academy was this: Anyone can kill you at any time." Thus, as various sociologists have documented, fear--like the fear that a suspect reaching for his wallet to display his license is reaching for a gun--is a powerful contributor to police violence against civilians.
But as the police murder of Tyre Nichols demonstrates, so is anger. Again, Nichols plainly did not pose any kind of threat nor anything resembling the appearance of a threat at the point at which the officers inflicted the fatal blows. They were acting out of rage and seemed to be retaliating against Nichols--for what, is unclear, however. Perhaps for deeds committed by others. Or perhaps human beings are most capable of acting violently when they feel anger. It's hard to be a cold-blooded killer but that may be what we want from our police: the ability, in those rare circumstances in which deadly force is truly necessary, to apply it without flying into a rage and thus the parallel ability not to fly into a rage and use deadly force when it's not necessary.
I'm not any kind of expert in policing or police training, so I have no idea how one would go about designing a training program that overcomes the human tendencies to use more force than needed (or to use force at all when none is needed) in response to the emotions of fear and anger. I do have cause to believe that whatever training and screening programs are now in effect to address these issues must do better.
(3) Race. The fact that all of the officers who killed Tyre Nichols are Black has led to a fair bit of commentary. In some sense, that's wholly unnecessary. We have known for decades that officers of any race can use excessive force--and that Black police officers can internalize racial stereotypes in ways that lead them to behave similarly to white police officers. Here's a classic scene of a sadistic Black cop from the great 1991 film Boyz N the Hood that could have been shot today. (Warning: contains profanity and the n-word.)
Even so, minority officers and especially female officers are less likely than their white and male colleagues to use force against civilians. Thus, it would be a terrible mistake (or excuse) if the race of the police who murdered Tyre Nichols were used to justify opposition to diversifying police forces. Meanwhile, of course, regardless of the race of the officers, nonwhite and especially Black men are much more likely to experience harassment and violence from police than comparably situated white men. (There are racial effects for women too, but men dominate as both perpetrators and victims of police-against-civilian violence).
Accordingly, we have two serious problems here. One is structural racism that manifests itself through all levels of the criminal justice system, including policing. The other is police use of excessive force. The two problems overlap but they're not identical. Although, as I just noted, Black men are at greatest risk of being victimized by police violence, the risk exists for people (especially young men) of all races.
During the summer of 2020 and in response to the police murder of George Floyd, a great many white people marched and otherwise demonstrated their concerns about racism and police excessive use of force. Since then, however, and predictably, as crime rates ticked up, broad support for police reform has waned. Perhaps the murder of Tyre Nichols will, at least temporarily, reverse that trend. However, in the long run, truly fundamental police reform is unlikely to occur without a large multi-racial coalition behind it. And for that to happen--for white people in general and not just white liberals--to support police reform, unjustified police violence will need to be perceived as a problem that affects everyone (even as it affects Black men disproportionately).
I say perceived because it is in fact true that excessive use of force by police does affect white victims. As this Washington Post investigation revealed, about half of the people shot and killed by police are white. So to be clear, yes, we have a structural racism problem that leads to unjustified police violence that disproportionately ruins the lives of Black Americans. But we also have a police excessive-use-of-force problem that ought to be a matter of concern to everyone. Viewing police violence through the prism of race is justified, but viewing it only through the prism of race could, as a practical political matter, impede reform.