Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
As criminal defense lawyers, we have long known the power possessed by the police as they direct and shape the investigations, grand jury testimony, arrest, charging decisions, courtroom testimony, and sentencing factors our clients face in the criminal legal system. We are keenly aware of the presumption of credibility and the professional protection officers are given simply because they wear a uniform and carry a gun. We sit front seat to the power and authority law enforcement wields during police encounters: power which, when used aggressively, unlawfully, or with racial animus, can lead to life-altering, violent, or fatal results for our clients.
In planning for my term as president, I announced I would focus my tenure on the issues of police misconduct and brutality. I also prioritized transparency and accountability in policing as a means of cleaning up and weeding out officers willing to trample on our clients’ rights, as well as, quite literally, their bodies. Emotions around the George Floyd killing in May 2020, and other senseless killings of Black citizens by law enforcement officers, were still running high. The images and pleas from Floyd for his mother were still seared in our brains and ringing in our ears. The issues were dissected and discussed consistently in the news to viewers homebound due to COVID, on social media, and on American streets during marches loud in volume and many in number. The rallying cries for law enforcement reform from the public, pundits, and politicians were topical, popular, and promissory. But only for a brief moment.
The protests died down. The country turned its attention to other critical developments of import to the world, inclusive of COVID, the presidential election, the war in Ukraine, and here at home, the war on democracy. As president of NACDL, I, too, was forced to prioritize as among other, critical issues. In this short time, court reopenings created the perfect storm for lawyers: crushing amounts of personal, professional, and financial stress, backlogs of work, and logistical challenges as our members returned to their offices (if their practices survived the economic downturn caused by the pandemic). The presidential election dominated the news cycle and further fatigued an already exhausted nation. The January 6 riot at the Capitol shocked Americans awake again as utter lawlessness and tyranny was on full display in the sacred halls of our democratic government. Laws and rulings ushered in the criminalization of reproductive and voting rights. Other constitutionally deficient measures and anti-human rights bills handily sailed through legislatures and courtrooms. The issues of concern cycling through my news feed were in one way consistent: they were nonstop. It felt like trying to kill a demogorgon in Stranger Things (you cannot, unless you have Eleven’s power of biokinesis) or playing nonstop Whac-A-Mole. The protests of summer 2020 seemed distant compared to other critical developments.
And then, in January 2023, Tyre Nichols’ beaming smile and beautiful artwork captured the nation’s attention after he was killed by law enforcement officers just feet from his mother’s home. Family photos of him played on a loop on TVs and devices around the world, trended on social media, and popped up as everyone’s new profile pic. Those smiling photos, and the personal vignettes shared about Nichols’ passion for skateboarding and love of sunsets, represented a brief requiem to the 29-year-old Black man from Memphis, Tennessee. A mere footnote. The images of Tyre alive and smiling were meant to remind us of his humanity in shadow of the gut-wrenching videos of six Memphis police officers fatally beating him on January 7 after a traffic stop. The images and sounds of Tyre’s encounter with law enforcement memorialized for the world, once again, how brutal, dehumanizing, racist, and audacious the American law enforcement machine can be. The incident reinforces why young Black men like Tyre live in a state of confusion, terror, and helplessness whenever they get pulled over by the police.
The public’s response to the death of Tyre Nichols included anger, cries for individual and departmental accountability, and demands for change on a national level — demands we have heard before. The failure to enact police reforms in the wake of the growing list of unarmed, primarily Black, men senselessly killed by law enforcement symbolizes us. The videos of amped up and unrestrained police aggression unleashed on people of color in impoverished neighborhoods represent the outtake reels for the bigger story. The real message imparted by these recorded death scenes is how stuck we are as a nation. We tolerate watching the same loop over and over again without making changes, hell — without even moving from the couch. Americans do have the post-incident routine down pat, though: millions of us shocked and awed, deep in thought and prayer, and singing the “this was just an isolated incident” refrain as justification that something like this is unlikely to happen again. We ignore reality: the beating of Tyre Nichols, captured on multiple cameras, out in the open, and with numerous officers and responders standing around watching, represents who we are.
We are a nation in which race is front and center in the criminal legal system, the educational system, the healthcare system, employment opportunities, access to housing, access to the ballot box, leadership and political positions and decisions, access to nutritious food and clean water, and more. The ugly realities of slavery and racism, even basic facts about Black history, are denied and repressed by our leadership, particularly in my home state. The list of measures undertaken in Florida to eradicate education about race, history, and human rights is growing. I predict Ron DeSantis will take steps to overthrow the leadership, or close altogether, FAMU, Florida Agricultural and Mechanical University, one of the largest HBCUs (historically Black college or university) in the country and the only public HBCU in Florida. I hope I am wrong.
All of this is daunting. If educational systems are this swiftly and easily altered by politicians, how can we expect progress in the area of law enforcement reform? We are a nation ruled by paralyzed and limp-willed political representatives, not the people: leaders who stand around watching Black youth die as unsympathetically as those in uniform that encircled Tyre that night.
And yet, with the death of Tyre, the conversations about police misconduct and accountability began again despite the obstacles to change that exist in the current environment. The voices of individuals and organizations in support of law enforcement reform measures, including NACDL, are loud and (re)invigorated. We need to pick up where we left off. After the massive rallies pertaining to George Floyd’s death, federal legislation, the George Floyd Justice in Policing Act, was proposed to address law enforcement tactics that have disproportionately targeted and terrorized minority communities for decades. Despite the fact a federal response would have little influence on state and local agencies unless federal funding could be cut by a department’s failure to conform to the new standards, the Act represented an important starting point. A model stance, the Act could slowly influence a shift in departmental culture and state and local agency standards. Considering the power of law enforcement unions, the near-untouchable political claims of a “rise in violent crime,” and the falsity of “defund the police” efforts, it was no surprise the George Floyd Act stalled in the Senate.
A shift in the culture of policing back to the communities officers serve, and away from lawless and racist tactics, is what is needed. Tactics designed to lower unnecessary, aggressive, and violent law enforcement responses to street level crimes, as well as hold officers accountable for their actions when they are circumstantially unjustified, are positive steps in addressing the tragedies of George Floyd, Breonna Taylor, Tyre Nichols, and others. The proposals attempted in this legislation need to be resurrected, modified to propose even more reform measures, and implemented so that the tide can begin to shift away from militarized police units patrolling our streets.
In a number of highly publicized, unjustified police shootings, the prior employment histories of involved officers proved important. As I write this column, not all of the Memphis officers’ internal affairs histories are known. But it is reported that all but one of the officers in the Tyre Nichols’ shooting had prior departmental histories, inclusive of excessive/unnecessary force and a domestic violence investigation or allegation. If an officer has a history of excessive or unnecessary force, unjustifiable discharge of firearms, or unlawful traffic stops or arrests, that information should be openly available to hiring agencies, current employers, future departments where the officer might seek employment, and the public. Discipline records should not have a retention period after which they can be destroyed. Officer employment and discipline records should be catalogued in such a way that officers who are fired cannot be repositioned via subsequent employment in another county or state without that history accompanying their job search efforts. Assigning one universal badge or identification number to officers represents a mechanism by which an officer’s employment track record cannot be hidden upon application to future departments. Like school records in some states, the records follow the person regardless of transfer or placement elsewhere. The United States did this with medical and pharmacy records: we can do this with the law enforcement industry.
There is much work to be done. NACDL’s Police Misconduct and Law Enforcement Accountability Committee is tasked with addressing constitutional rights abuses clients experience upon contact with law enforcement and as their criminal cases are tested in the courtroom. The committee is working to expose, oppose, and replace law enforcement models or departmental cultures that lack transparency, facilitate and endorse overly aggressive police tactics and the ongoing brutality of citizens, fail to implement legitimate and independent oversight operations (i.e., citizen review boards), oppose standards and best practices, engage in overpolicing or unlawful police surveillance techniques in predominantly minority neighborhoods, utilize police unions as an impenetrable barrier shielding officers from misconduct findings or appropriate employment sanctions, disregard past discipline histories of officers as predictors of future conduct, and act with reckless disregard for the safety of citizens due to qualified immunity limits.
Join me in the fight for the dignity of the individual and for a fair criminal legal system. Volunteer in these committee efforts, financially contribute to NACDL’s Foundation for Criminal Justice, hold police officers in your own jurisdiction to account by challenging unlawful stops, calling out racist policing tactics in court without apology, filing internal affairs complaints, suing police departments for civil rights violations, and taking the issues to juries so that police misconduct and racist policing can see the light of day through the judicial system.
About the Author
Nellie L. King is the owner of the Law Offices of Nellie L. King, P.A. She practices criminal defense in state and federal courts throughout the United States and lectures on criminal legal reform and constitutional issues. She is a Past President of the Florida Association of Criminal Defense Lawyers.