The Department of Justice Cannot Cure What Ails Memphis

Posted in: Law Enforcement

The Department of Justice announced last week that it had opened a “pattern or practice” investigation into the City of Memphis and the Memphis Police Department. Though the investigation is not prompted by any single incident, it comes after the horrific murder of Tyre Nichols in Memphis police custody last January. I wrote a number of essays about Nichols’ murder. In fact, it was the only time I have ever written five consecutive essays about a single incident, a level of attention I explained at the time with the observation that I had never seen a police killing “that so perfectly captures so much of what is wrong with the myth and reality of policing in American life.” The DOJ announcement provides another opportunity to shed light on what may otherwise be opaque.

On the one hand, the DOJ announcement is welcome news. As I wrote before, the behavior of the Memphis officers, much of which was captured on video, could only have happened in a police department that had thoroughly lost its way. The incident started when the police violently mistreated a young Black man about whom they knew nothing except that he had allegedly driven recklessly. (The Memphis Chief of Police would later say she had seen no evidence to support the allegation.) When Nichols fled their abuse, a knot of officers chased him down as another twice muttered the hope that they “stomp his ass.”

When they caught up with him, five officers beat Nichols senseless. The video of that beating, and particularly the final blows delivered to Nichols’ head by one officer as the other four held Nichols up, is almost too painful to watch. Then, when he was barely conscious, they propped him up against a squad car and ignored him for about a half hour as a crowd of Memphis officers milled around, checking their phones, retying their shoes and conspicuously failing to administer first aid. Nichols died a few days later in the hospital. Behavior like this, from beginning to end, can only happen in a department whose culture tolerates—and at least in some quarters, encourages—violent abuse.

And of course, after Nichols’ murder, we began to hear the stories of other people beaten by officers with the SCORPION unit, the specialized team whose members stopped, stomped, and killed Nichols. The wider world learned about Nichols only because his beating was caught on video. But in the communities from which Nichols haled, his murder did not come as a surprise. Nor should it have surprised us: when you see behavior of the sort captured on the videos—the casual cruelty and the widespread indifference to suffering—you can bet it has happened before.

In fact, we know police brutality is a longstanding problem in Memphis. As I wrote before, in September 2020, four months after the murder of George Floyd, Memphis Mayor Jim Strickland convened an advisory council that included clergy, civil rights leaders, legislators, public defenders, and police officers, and charged it with “reimagining policing” in the city. The Council’s recommendations focused on four areas, the first of which was the excessive use of force, which tells you that police brutality in Memphis did not begin in January, 2023. To put it gently, this is not a story about a few bad apples.

Yet on the other hand, as welcome as the DOJ investigation might be, let’s get one thing clear: The United States Department of Justice has neither the tools nor the authority to “solve” the problem represented by the murder of Tyre Nichols. No federal agency does. That solution can only come from the people of Memphis.

As Assistant Attorney General Kristen Clarke explained when she announced the investigation, the purpose of the inquiry is “to determine whether there is a pattern or practice of conduct that violates the Constitution or our federal civil rights law.” That’s the power granted to DOJ by federal statute. But what happens if the “pattern or practice” arises because of pressures from outside the department? If those forces originate from a state actor—e.g., if the mayor had ordered the chief of police to direct her officers to use excessive force—then DOJ can reach that too; that’s why DOJ is investigating the City of Memphis and not just the police department.

But what if the problem comes from a vague but insistent public demand that the police “get tough”? What if that message were repeated every day on the TV news and the local paper, which lamented rising rates of violent crime? And what if the state and city slashed funding for social services and alternatives to policing? In short, what if there were a message that started at the top but filtered down to every officer on every beat—a message that said, “It’s up to you. Get it done.” The department might respond to this pressure by engaging in an unconstitutional pattern or practice of behavior, as Memphis may have done, but I trust that no one thinks the police, by themselves, are the problem.

Fortunately, DOJ understands all this. The most important language in Ms. Clarke’s speech, which was completely ignored by the media, is tucked away in the thirteenth paragraph:

As we begin this investigation, we recognize the challenges that Memphis and its police department are facing, including one of the country’s highest rates of violent crime. When crime is high, there is an understandable urgency to respond. Often, the pressure to combat crime falls almost exclusively on the police. But the Justice Department recognizes that promoting public safety and preventing violent crime requires the collaboration of a broad array of community and agency partners. This new investigation will seek to identify ways to foster such collaboration and to seek to build on one of the Justice Department’s highest priorities—ensuring that cities and police departments protect communities’ civil rights and keep people safe.

There is much more in this paragraph than meets the eye, and much more than a senior DOJ official could say in a public speech announcing a policy and practice investigation. But here is what she’s saying:

  1. DOJ understands that the police are unfairly expected to achieve what they cannot possibly accomplish—lasting public safety—and that they are punished in the public sphere if they don’t get the job done. We feel your pain.
  2. Yet the solution is not the creation of specialized, highly aggressive units like SCORPION. Police departments have tried that for years, and while these units are good at making arrests and might drive down crime rates in the short term, they invariably become violent and abusive, drive a wedge between the police and the people they serve, and cannot create sustainable neighborhood change. They satisfy political demands to “get tough,” but at a terrible cost.
  3. Instead, the city needs to create long-term, durable collaborations among the police department, federal, state, and local agencies, and community partners. These collaborations serve many purposes, but their primary goal is to change the physical and cultural environments that on the one hand encourage crime and disorder in distressed neighborhoods, and on the other encourage abusive policing. They change places and they change minds. (I have written often about these collaborations and their transformative potential.)
  4. Make no mistake, these collaborations are hard to build and even harder to sustain. They require a completely new way of conceptualizing safety. They require trusting relationships among groups and people who may not trust each other. They require funding from the city, state, federal government, and the private sector, and that funding is never adequate. They may require new state or local laws (and as I have written before, the state legislature in Tennessee will probably not be the city’s ally). And most of all, these collaborations require acknowledging that the people who live and work in distressed neighborhoods are not the problem, they are the solution.
  5. Yet as difficult as these collaborations are, there is no other way to create trust, transform conditions, and build sustainable change. DOJ understands this as well, and will be your ally going forward.

At least, I hope this is what she’s saying and I hope this is what DOJ will communicate. The problem is that DOJ has no way to force this understanding on the City of Memphis. It can educate, encourage, cajole, fund, and incentivize. But in the end, if Memphis cannot or will not look beyond the police in its quest to create sustainable public safety, if it cannot or will not create collaborations that make the entire city responsible for its well-being, and most of all, if it cannot or will not empower the people most affected by crime and disorder, there is nothing DOJ can do. As long as the Memphis PD does not violate the Constitution or federal law, it can be as pig-headed and ass-backwards as it wants, and there’s nothing DOJ can do.

So, yes, the DOJ announcement is welcome indeed. But do not look to the federal government to solve local policing. Change in Memphis comes down to the people of Memphis.

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