American communities need robust law enforcement, and the vast majority of police officers are public servants performing dangerous work with dedication. The footage of Memphis police officers killing Tyre Nichols in early January, however, is all the more unbearable because Americans have seen the likes of it so many times before. Too many Americans today live in fear that they may suffer abuse or excessive force at the hands of police officers who are sworn to protect them.
Police officers killed 1,096 people in the United States last year, according to The Washington Post, which painstakingly tracks the death toll because the government does not keep a complete count. That was the most such deaths in any year since 2015. The victims, including Mr. Nichols, are disproportionately young Black men.
To keep Americans safer, the federal government and state and local governments need to match continued investments in policing with reforms that make law enforcement agencies as a whole — as well as individual officers — more accountable to the communities that they serve.
The single most important change Congress can make is to write out of existence the misbegotten legal doctrine of “qualified immunity,” which makes it unreasonably difficult to hold officers or agencies financially liable for misconduct. Under federal law, government officials can face civil lawsuits for violating a person’s constitutional rights. But the Supreme Court has inserted an “absolute shield,” as Justice Sonia Sotomayor has called it, that effectively prevents police officers from facing this important tool for accountability by imposing a set of threshold tests that plaintiffs almost never meet. As Justice Sotomayor wrote in 2018, the current standard “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
The House passed a bill to overhaul qualified immunity in 2021, but it stalled in the Senate in the face of Republican opposition. Senator Tim Scott, Republican of South Carolina, has offered one potential path forward, suggesting in 2021 that law enforcement agencies should be held liable for the misconduct of individual officers. The Senate should pursue this compromise, which would allow more cases to proceed.
States also need to change their laws. Colorado in 2020 became the first state to end qualified immunity. Connecticut, New Mexico and New York City have since passed laws limiting the use of the shield. In New York City, police officers can no longer assert qualified immunity against charges of unreasonable search and seizure or of the use of excessive force.
In the early 1970s, Maryland passed a landmark and widely emulated Law Enforcement Officers Bill of Rights, which provided special protections to police officers facing police investigations. In 2021, Maryland decided that police officers should once again be placed under the same Bill of Rights as every other American. Other states that have similarly enacted special protections for police should once again emulate Maryland.
Other changes are necessary, too. Cities need to establish clear and consistent procedures for the independent review of the use of force by law enforcement officers. Settlement payments for police misconduct, which according to The Post totaled more than $3.2 billion over the last decade, should come from police budgets, not general funds. And cities need to rewrite their relationships with police unions by treating basic accountability measures as nonnegotiable.
Many American cities are facing rising concern about crime and public safety, often from the same communities that are also concerned about police misconduct. This is a significant challenge, but cities should not see stricter conduct standards as antithetical to effective policing. Reform and investment can be complementary. A good starting point might be shifting money from military equipment to recruitment.
The federal government can help by promulgating best practices, such as training in de-escalation techniques, and providing funding to support implementation. Alongside that carrot, the Department of Justice can also wield a stick by pursuing consent decrees against recalcitrant departments. Samuel Walker, a professor at the University of Nebraska, Omaha, concluded in a 2022 analysis that the federal government’s use of such agreements with 40 police departments across the country “has created a web of accountability that is unmatched by any previous police reform effort.”
A lack of accountability is only one of the factors that make police violence significantly more common in the United States than in other wealthy democracies. The ubiquity of guns means that American police officers face greater danger, and are trained to use violence to protect themselves. The tattered safety net for people with mental illnesses produces frequent interactions between police officers and people who really need doctors. Law enforcement agencies have compounded these difficulties by investing in military equipment and by treating policing as a form of conflict, rather than investing in ways to improve the effectiveness of policing. And racism continues to warp the way that law enforcement interacts with the Black community, especially young Black men. All of these issues require more attention from the nation’s political leaders.
The death of Mr. Nichols testifies to that unfinished work.
Memphis had embraced some of the most popular prescriptions for curbing police violence already, including the full slate of measures the “Eight Can’t Wait” campaign against police violence advocates. Among these, the city bans choke holds and requires officers to engage in de-escalation and report any use of force against civilians. The police department also has worked to reflect the racial composition of the community it serves. About 58 percent of officers are Black, compared with 64 percent of the city, and the Memphis officers wore body cameras, which did not deter their actions but may help to hold them accountable.
Six officers have been fired by the department, and prosecutors have charged five of them with second-degree murder — an important measure of accountability.
It is not enough. Memphis, like every other American city, should acknowledge and address the systemic failures that allowed Mr. Nichols’s death to happen.
Americans continue to die at the hands of those charged with protecting their lives and liberty. Even one unnecessary death would be reason enough for reform, but Americans should not have to wait for more reasons. The rule of law is essential to our democracy, and the rule of law depends on public faith in law enforcement as an institution. It is up to those who lead law enforcement agencies, and the elected officials who choose them, to strengthen that institution.
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