Police Killings At All-Time High While "Justice in Policing" Act Languishes

Initial Stop

De-escalation is the goal of a police encounter with a subject. A hierarchy of police tactics known as the “force continuum” governs the level of force that may be used when confronting a potential threat. Verbal commands are the preset of an encounter, with deadly force being a last resort. However, in this case, the violent and aggressive nature of the stop demonstrated a complete lack of situational awareness. It was clear from the initial contact that the officers were either grossly undertrained or blind to the restraint required under the circumstances.

Analyzing the encounter is an exercise in what not to do. Ostensibly, this was a routine traffic stop. It was not a high-speed chase. Nichols was not a suspect fleeing the scene of a violent crime. Civilians were not in danger. Yet, Nichols was quickly pulled from his vehicle in a hail of shouting, “get the f - - - out.” Body camera footage shows Nichols in the supine position being dragged by his arm in the street. An emotionally incongruent response to a potential misdemeanor traffic infraction. Nichols pleads with the officers, “I’m on the ground …I’m just trying to go home.” But for unknown reasons, the officers deploy “pepper” spray and tasers, ironically exposing themselves, while Nichols managed to momentarily evade his attackers.

Moments later, Nichols is surrounded by several officers who commence to brutally punch, kick and strike him multiple times until he falls unconscious. In the aftermath of the assault, while Nichols laid lifeless against the side of a squad car, the officers are seen and heard standing around conjuring up wild stories about Nichols reaching for their guns and demonstrating “superhuman” strength (a sign of “excited delirium”). The dialogue among the officers had the ominous feeling of a scripted narrative intended to serve as later justification for their unexplainable use of unlawful and excessive force against an otherwise smaller or less imposing subject.

Memphis Police Chief – “A failing of basic humanity”

Prior to the public release of the video, Memphis Police Chief CJ Davis described the circumstances surrounding the death of Nichols as “heinous, reckless, and inhumane.” She was also quoted as characterizing the incident as “… a failing of basic humanity toward another individual…” These are particularly damning statements in the context of potential civil liability, given that the conduct and behavior of police officers are to be adjudicated under a reasonableness standard, i.e., what a reasonable officer would do or not do under the same or similar circumstances. Condemnation of the officers by their own department is highly unusual and may encourage other law enforcement agencies to provide more transparent responses to police misconduct, however, not without legislative backing.

Legislative Stalemate

While a nation weeps for Tyre Nichols, launches protests and searches for answers to another senseless death of an unarmed black man, Congress chooses to sit on its hands. It has been nearly two years since the introduction of the George Floyd “Justice in Policing” bill was introduced in the House. Since then, it has met staunch opposition from Republicans in the Senate. The death of Trye Nichols sparked calls for the reintroduction of the bill. From a policy standpoint, police reform makes sense. It is hard to argue against limiting military-grade equipment, training on racial profiling, increased use of body cameras and establishing a national data base documenting officer misconduct. And, of course, the banning of “no-knock” warrants.

However, most importantly, the application of the Justice in Policing Act – among the proposed legislative mandates, calls for state attorneys general to create an independent process to investigate police misconduct, enhance accountability by restricting the application of “qualified immunity” and change the criminal intent element of 18 U.S.C. Sec. 242 from a “willful” disregard for human life to “knowingly or with reckless disregard.” And, perhaps most importantly, to change the threshold for the permissible use of force by law enforcement officers from “reasonableness” to only when “necessary to prevent death or serious bodily injury.”

Disbanding “Saturation” Units

Finally, in addition to passing comprehensive police reform legislation, law enforcement agencies should consider disbanding “saturation” units designated to patrol for particular crimes. These types of units have been prone to violent incidents against civilians at a statistically significant rate. The attitude and conduct of those serving on these units has suggested that officers designated with an “elite” status are more likely to abuse their power and authority.

There’s much to do before 2023 sees another record year of police violence. We can’t afford to wait one minute longer to take positive action.

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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.