"I don't know that there's any law that can stop that evil that we saw," said House Judiciary Committee Chairman Jim Jordan (R–Ohio) on NBC's Meet the Press, shortly after video was released of five Memphis police officers brutally beating Tyre Nichols during a traffic stop.
Jordan took a lot of abuse for his remark, which was generally interpreted as boobish and nihilistic. But while Jordan has said many boobish things over many years, he is very nearly correct about this one. Congressmen know better than most that the mere act of passing a law guarantees nothing, and that making something illegal is not the same thing as eliminating it.
Three years after the death of George Floyd—and two years after the death of the George Floyd Justice in Policing Act, which passed the House in 2021 but stalled in the Senate—many of the same policing reform proposals are still being endlessly debated. Some states and cities implemented new use-of-force guidelines with similar language, along with other piecemeal reforms. The results are mixed. Even if the federal bill's ban on chokeholds had been passed and universally honored, for example, it wouldn't have saved Nichols, who died three days after being subject to nearly every assault imaginable other than choking. Memphis is in the middle of several other reforms, including efforts to diversify its police force. But all the officers charged in Nichols' beating were black.
Defunding the police—the rallying cry of the angry summer of 2020—proved an unpopular idea. Most people don't want to abolish the police; they just wish they could trust officers in their neighborhoods to do the right thing when they are needed.
Congressional micromanagement of the rules of engagement between cops and citizens isn't the only way forward, and it's probably not the best one. Instead of focusing primarily on prevention, the best way to prevent future abuses may counterintuitively be to consistently and publicly punish law enforcement officers who have stepped over the line after the fact.
There is a technocratic temptation to think that the problem of police brutality can be solved by making or attracting better cops. Proposals range from requiring a college education for police officers to simply increasing the number of hours of training required, from the current average of 650 to something closer to Finland's 5,500 or at least Canada's 1,000.
Both of those proposals were touted by Noah Smith, who issued a call to "Professionalize the Police" on his Substack. He forthrightly admits that he "can't find good causal studies on the impact of total hours of police training on police brutality" but notes that there is some evidence that certain subtypes of training are effective. Unfortunately for Smith's case, one of those types of training is the very same de-escalation training the Memphis police did receive.
"The worst that could happen," writes Smith, "is that we waste some money." But efforts to require a college education for an increasing number of professions—including day care workers—have succeeded largely in making labor scarcer and prices higher, without clear gains in quality or safety. Advocates of more training like to cite the required hours of training for other professions, especially the thousands of hours required of cosmetologists. But anyone who has ever had her hair done at a dubious salon might well wonder whether many of those hours were, in fact, an expensive waste of money and time for all parties.
If you get a bad dye job, of course, you can leave a one-star Yelp review. And if, Aphrodite forbid, you're disfigured by bleach burns, you can sue. At the moment, both of these options are very limited for victims of police misconduct.
Too many American police officers believe it's OK, even necessary, to react extremely aggressively when faced with perceived threats. As long as there is no external reality check on that belief, it is unlikely to change.
The five officers who attacked Nichols have been charged with murder and other crimes. But because criminal charges against police are rare, it should also be possible to hold law enforcement officials accountable in civil proceedings, where regular citizens can initiate proceedings and seek justice.
Too often, lawmakers and activists become focused on creating elaborate licensing standards, codes of conduct, education requirements, and more when what is needed most is to clear the way for a time-tested system to work as intended. We already have a system in which those who inflict harm on others in the course of their jobs can be held accountable, but decades ago the Supreme Court carved out the "qualified immunity" exception, which often blocks lawsuits for clearly unconstitutional abuses.
Memphis Police Chief Cerelyn Davis told the Commercial Appeal that she supports reforming qualified immunity, but Tennessee police have benefited from the doctrine's bafflingly broad shield in recent years, including in 2020, when the U.S. Supreme Court declined to hear a case where a state court had concluded that a man bitten by a police dog was out of luck, because the "use of the canine to apprehend [him] did not violate clearly established law."
The consequences for the officers who beat Nichols have been swift and severe. Their rapid expulsion from the police force and the unwillingness of the Fraternal Order of Police to stand up for them will likely do more to make the next officer think twice about wielding his Taser and truncheon than any specific set of rules Jim Jordan and his pals can dream up. Increased civil liability will help make this kind of clear resolution more common.
Some of the same developments that make it possible to hold violent, brutal police officers accountable in court will also allow innocent, effective police to defend themselves. Scrupulously acquired and maintained body camera footage will exonerate officers who have done the right thing. Unions that find it untenable—for reputational and fiscal reasons—to reflexively defend repeat offenders will ultimately be stronger and more useful to the cops that need defense from unscrupulous bosses, frivolous complaints, or poor working conditions when the need arises.
The fact that the five officers responsible for Tyre Nichols' death are suffering is likely to be cold comfort to the 4-year-old daughter he leaves behind. But convincing law enforcement officers that those who do wrong will suffer consequences is by far the most powerful (and cost-effective) tool for changing police behavior in the long run.