TGIF: The Tyre Nichols Atrocity

The brutal killing of Tyre Nichols literally at the hands (and feet) of several Memphis police officers might be a source of cognitive dissonance for some people. But before we get to that, let's begin at the beginning. 

To start with the moral basics, the officers who initiated force against Nichols, a 29-year-old father, and the others who joined in once the assault was in progress, had no apparent reason to believe Nichols posed any danger to them or the public. Judging by the body-cam video, the first officers to stop and approach Nichols's car were exceedingly hostile from the start. It would be wrong to say they escalated the situation -- rather, they appear to be in high confrontational mode from the get-go.

Some might say that Nichols failed to comply with the officers' angry orders to get out and on the ground as they pulled him from his car. From the video, it looks more like Nichols was shocked and disoriented by what was happening. "What did I do?" he asked. He didn't strike the officers; he asked a question. I suspect that police culture doesn't cotton to such impertinence even when a suspect appears unthreatening. Yes, he ran away when he got the chance (and was soon caught and brutally punched and kicked again), but that was after being assaulted, tased, and pepper-sprayed. Watch the videos from the police body cams and pole-mounted surveillance camera for yourself. They're not easy to view.

Simply put, this has all the looks of an atrocity by members of the now-"permanently deactivated" SCORPION (Street Crimes Operation to Restore Peace in Our Neighborhoods) unit, who knew they were being videoed.

The sheer brutality will confirm many people's beliefs about the police. But there are problems with what many people think they know. As the saying goes, we often know things "that ain't so." Here's where the dissonance sets in.

Five officers have been fired and charged with second-degree murder and other serious offenses. Others, including three onlooking fire department paramedics, are being investigated and have been dismissed. The street demonstrators who are demanding accountability may have missed the reports. Or they can't take yes for an answer. Never let the facts get in the way of a good slogan: "Accountability now!" Should the cops be lynched? (Other cops who killed citizens in recent years have been convicted and imprisoned.)

This is accountability is good, but prevention is needed too. Police departments must examine their hiring and training procedures in order to exclude bullies and bullying tactics as much as humanly possible. Police should not be taught that they are an occupying army. It would help if they were not furnished military gear by the national government and if they did not think of themselves as paramilitary rather than civilians. Moreover, offending police officers must not be able to take refuge in things like qualified immunity. You and I are liable for the damage we do, even unintentionally. So should the cops be.

As noted, the SCORPION unit, set up to focus on "high-crime spots," is now history. Such things exist in other American cities. Forming the unit presumably was well-intended because, throughout the United States, most violent crime occurs in a relatively small number of areas, largely lower-income black and Latino communities. As Rafael Mangual, author of Criminal (In)justice: What the Push for Decarceration and Depolicing Gets Wrong and Who It Hurts Most, points out, if you were dropped into a random location in America, chances are you would land in a low-crime area. Note who would suffer from a reduction in policing in high-crime areas: the poorest, most vulnerable Americans; they would be black and Latino. That's probably why, when polled, black Americans overwhelmingly oppose shrinking the police presence.

It thus seems reasonable for the police to focus on where the crime is: resources are not unlimited. But that shouldn't be a carte blanche for cops or -- and this needs more attention -- national and state legislators, who tell the cops what to treat as crimes. The police problem would be far smaller if governments did not prohibit drug use, manufacturing, and sales. That's because a "war on drugs" is necessarily a war on consensual transactions, which have no complaining witness. That fact prompts the police to use tactics -- undercover operations, reliance on dodgy informants, no-knock raids -- that create sure-fire conditions for violent confrontations and lethal errors involving innocents. (See the Breonna Taylor killing for an example.) In sum, terminating the drug war (and other wars on vice) would reduce the number of potentially dangerous contacts between the police and lower-income people, as well as improve the quality of the remaining contact. It would also rid the drug trade of the thuggish gangs that run black markets. Prohibition kills. (Much else must be done: for example, end occupational licensing and barriers to small-business formation, and let lower-income kids escape the government's schools.) 

Here's another possible source of cognitive dissonance: the Nichols case shows us what we already should know. Police brutality is not about race -- it's about police brutality. Nichols was black, but so are the five dismissed and indicted officers. Two of the three fired EMTs are black. One white officer is being investigated, and another cop under investigation has yet to be identified. The Memphis chief of police is a black woman. It is hard to see how this is a racial atrocity. Logic will be twisted to make it appear so, but it will not wash. To attribute the black cops' conduct to white supremacy is to deny them agency -- which strikes me as patronizing -- not to mention racist.

To the extent we have a police problem, it's everyone's problem -- but especially lower-income people no matter their skin tone. They have more contact with the police than higher-income people. Lighter-skinned lower-income people are also beaten, shot, and killed by police, but they apparently aren't newsworthy in our race-distracted era.

To see how wrong the Black Lives Matter narrative is, read this paper by Zac Kriegman, the top Reuters data analyst who was fired simply for showing his bosses that their crime coverage was wrongly premised on BLM's narrative, which is unsupported by the data. (Kriegman wasn't refuted; he was summarily dismissed.) The historian Barbara Fields, coauthor of Racecraft: The Soul of Inequality in American Life, asks if you really cared about police brutality, why would you lead white people to falsely believe that only black people need to fear the cops?

Next, as bad as police aggression is, its frequency should not be exaggerated. Dishonesty is a bad policy; it discredits efforts to reduce that aggression as much as we can. In 2022, says Mapping Police Violence, about 1,100 Americans (of all colors) were killed by police, most of them by firearms. That's down not up over the last several decades. (The Washington Post says the shootings alone numbered 1,096.) That's all killings, including justifiable ones. The number of killings of unarmed Americans is in double digits (about 40 in 2020), although unarmed people can be dangerous too, especially when they reach for a policeman's gun. The 1,100 figure is nothing to be complacent about, but perspective is necessary.

Police make 10 million arrests every year in a country of over 330 million. So let's not exaggerate the problem. What we cannot truthfully say is that it's police open season on a certain group of Americans. Are black men killed disproportionately? Black people make up 13 percent of the American population and by that benchmark are overrepresented among victims of police killings. But is that the right benchmark? Kriegman writes,

The correct benchmark for measuring bias in police use of lethal force is the number of high risk encounters for each group, and not the population of each group.... [O]n average, violent crime rates are dramatically higher in predominantly black communities than they are in predominantly white communities.... Therefore we should expect there to be more encounters in those communities for the purpose of achieving entirely legitimate and laudable policing objectives.

When we use the appropriate benchmark, Kriegman writes, "the supposed anti-black bias disappears completely, and possibly, even reverses." (By analogy, men make up almost 50 percent of the general population, but over 90 percent of the prison population. Does that prove the criminal justice system guilty of misandry? Not if you use the proper benchmark: the population of people who commit violent crimes.)

As I've suggested, policing could be improved in various ways through better screening and training, and full transparency and accountability. It's got to happen -- and soon. Poor policing harms the most vulnerable in two ways. It directly victimizes people through police brutality, and it indirectly victimizes people by leaving them at the mercy of street criminals. Both ways are intolerable.

Yet we should understand that no matter how much better policing could be, it won't be good enough. The reasons are simple: policing today is a monopoly of governments, and it is politicians who define the crimes that the police are mandated to combat. We all know what coercive monopolies produce: shoddy products and services at unnecessarily high prices. We certainly need policing because some people will be inclined to have their way by force. To get better policing, then, we must insist that the politicians and bureaucrats step aside and let competitive free enterprise -- with full transparency and accountability -- deliver high-quality and affordable services, just as it has done with the other services it delivers.

TGIF: FDA Targets Black and Other Minority Smokers

Just when we are reminded that unnecessary conflict between the police and the people, especially in poorer black communities, is a poison to be eliminated forthwith, the Biden administration has moved in the wrong direction. Late last month the administration signaled that it wants to ban menthol cigarettes, which are especially popular with black smokers.

"Banning menthol—the last allowable flavor—in cigarettes and banning all flavors in cigars will help save lives, particularly among those disproportionately affected by these deadly products," Acting Food and Drug Administration Commissioner Janet Woodcock said. "With these actions, the FDA will help significantly reduce youth initiation, increase the chances of smoking cessation among current smokers, and address health disparities experienced by communities of color, low-income populations, and LGBTQ+ individuals, all of whom are far more likely to use these tobacco products."

For years the FDA had been pushed on this issue by a coalition of organizations, including some self-identified black advocacy groups, although other similar groups, along with the ACLU, have opposed the ban. The FDA has finally agreed to the ban. It will take time to put it in place because of the public-comment process.

Let's be clear on what is going down. The central government wants to stop certain minority smokers from indulging their preferences. That's paternalism pure and simple. Apparently blacks and others who prefer menthol smokes cannot be persuaded to stop, so they will have to be forced--for their own good. A far higher percentage of black smokers than white smokers prefer menthol to unflavored cigarettes.

Strangely, this is occurring during the height of concern about unjustified police violence against black men and women. As we know, product prohibition always prompts the creation of illegal markets, and this breeds a poisonous relationship between police and the communities in which the illegal activities are most likely to occur. The reason couldn't be simpler. Unlike with crimes of violence against person and property--that is, offenses with victims--vice laws attempt to stop consensual transactions. Since those transactions by nature have no complainant, the police inevitably resort to intrusive, rights-violating methods to catch people in the act. The methods include surveillance, use of dodgy informants with have incentives to lie and set people up, and other trickery. It couldn't be any other way. If laws against victimless "crimes" are to be enforced, the most egregious enforcement methods will be brought to bear as a matter of necessity. It's in the very nature of the legal suppression of vice. (I'm including gambling, drugs, prostitution, and so on.)

Considering that minority community trust in the police is is not exactly high, why would anyone want to give the police more authority to root out consensual interaction? It can only make things worse.

Anticipating this criticism, the FDA promises it will not target consumers; only manufacturers and distributors will be in the authorities' sights. But that statement is misleading. Plenty of damage can be done at the street level if the manufacturers and distributors of illegal menthol cigarettes turn out to be small-scale neighborhood operations, which they may well be. (Why would highly visible Big Tobacco take the risk?) If people demand menthol smokes, other people will creatively cater to their demand. Remember Eric Garner's fatal encounter with the police when he was illegally selling individual cigarettes ("loosies") presumably to get around the high New York tobacco tax. In Massachusetts, which has already banned menthol cigarettes, the black market is reported on the rise. When police efforts to stop black-market manufacturers and distributors fail, will the police turn on consumers? Stamping out demand (if it could be done) would surely stamp out supply.

This can't end well. For one thing, a ban on one product could morph into a ban on other items that contribute to the production of originally targeted product.

And let's keep in mind the larger context. While the government says it's trying to save smokers from themselves, it also demonizes vaping and has outlawed most vape flavors. True, the exceptions to that ban (for now?) are tobacco and menthol flavors, but still the FDA has made efforts to scare smokers from switching to vaping, which is known to be much safer than inhaling the smoke from burning tobacco leaves. If smokers are scared away from vaping, many will stick with smoking, menthol or no menthol.

Meanwhile the FDA is also looking into lowering the nicotine content of cigarettes to "nonaddictive levels," a futile act of mere signaling since smokers could simply smoke more cigarettes to make up their nicotine deficit.

When will government learn? Actually, that's the wrong question. Officials have no incentive to take seriously many things they must already know because it would cost them their mission, power, and prestige.

Abolition of all vice laws should be step number one in any effort to eliminate unjustified police violence. Forbidding the state's officers from looking for outlawed but consensual transactions couldn't help but create a better relationship between the police and the people, especially those in the most vulnerable communities.

(For the case against all laws against victimless crimes, see Lysander Spooner's Vice Are Not Crimes.)

The Choice We Don''t Face

Despite what some people suggest, our choice today is not between black lives and private property. Quite the contrary: respect for black lives logically entails respect for all persons, their possessions, and their peaceful projects. The first property right is self-ownership: one's property in oneself. (The abolitionists called slave traders and owners man-stealers. Get it?) Do the rioters not know that black people also own shops and other businesses? Or are those owners considered acceptable casualties in the struggle? And have those owners been asked to consent to that demeaning status?

Further, no one has spelled out the practical connection between rioting and looting on the one hand and the achievement of respect for black people by the police on the other. Far from an obvious connection, the disconnect is clear. If society faces a choice between civil unrest and Hobbes's Leviathan, I have no doubt which one most people, including most black people, will choose. That situation will hardly usher in a blissful time of respect for black people's or anyone else's lives by the police.

Victimless-Crime Laws Breed Police Violence

As long as the police are charged with detecting and stopping consensual transactions -- concerning, for example, drugs, guns, gambling, sex, and untaxed cigarettes and CDs -- tension and violence will continue. Abolishing victimless-crime laws won't end institutional racism, but many opportunities for it will be eliminated.

The key feature of a victimless-"crime" transaction is that unlike, say, battery, it has no complaining participant -- the transaction is consensual. Because of this, police find they "need" to engage in surveillance, entrapment, cultivation of informants, stop-and-frisk, and other methods that breed distrust between the people and the system. This in turn gives rise to a view of the police as an occupying army, especially in poor minority neighborhoods, where for a variety of reasons -- occupational licensing and government schools, to name two -- the black market presents attractive alternatives to poverty.

Other measures to be taken: abolish all occupational licensing and minimum-wage laws, which impede people's efforts to prosper. (Providing goods and services without a license is a victimless crime if no deception is involved.)

Thus Dallas Chief David Brown's invitation to Black Lives Matter activists to join the police department and work for reform from within badly misses the point. This is not just about bad apples and community policing.

Another way to put it: if we didn't have cops, we wouldn't need them.