Memphis police conduct towards Tyre Nichols is deserving of criticism, criminal charges — and some context

Memphis Tennessee isn’t well. It’s a city experiencing record-setting murders and associated violence — about eight times the national average and more than twice the rate of Minneapolis. 

The situation led to the Atlantic publishing an article in November 2022 entitled, “The murders in Memphis aren’t stopping. Despite extraordinary funding, the city’s police seem unable to control crime.”  

It ends with this dire conclusion:

“In three or four years, Memphis’s citizens will still be fighting over crime and how to address it. But based on recent history, that period will also see hundreds of Memphians die by violence, and thousands more of them assaulted with a gun. A crisis can just keep on persisting.”  

I provide this information for context. Few of us have any idea the challenges facing Memphis police officers in 2023. A traffic stop in Memphis isn’t a traffic stop in Chaska, no matter how much we think it should be. That isn’t an excuse, or justification for what occurred, it’s just worth acknowledging as we look at the facts around the death of Tre Nichols.

In response to overwhelming violence, the Memphis Police Department created the “Scorpion Unit” in 2021. Scorpion stands for Street Crimes Operation to Restore Peace in Our Neighborhoods. Scorpion is a proactive-directed patrol unit that focuses on high-crime areas in the city. Nearly every major city has a similar effort, though in recent years proactive policing has been severely hampered by staffing issues, and officers naturally pulling back during the “defund” and “deconstruct” policing movement.

In early January, members of the Memphis Police “Scorpion” Unit stopped Nichols for what they reported to be “reckless driving.” They arrested him, using what appears to be unnecessary force, and Nichols ended up dying three days later after being transported to the hospital. An official cause of death has not yet been released, but a statement by the Tennessee Bureau of Investigation indicated Nichols died due to injuries sustained in the “use-of-force incident with officers.”

The collective actions of the officers are reflective of poorly trained and poorly supervised officers who lacked physical fitness, tactics, self-discipline, and the basic humanity needed to properly perform the important and trusted work of a police officer. Their actions were deserving of their dismissal from the Memphis PD and the profession of policing. They were also deserving of criminal charges to varying degrees.

But there is a lot of important information that is not yet known, or not as clear as media reports suggest, including why Nichols didn’t just comply, and a lack of specificity being reported about what each officer is alleged to have done.

It is unclear what led to the initial stop and the accusation of reckless driving. One of the officers can be heard on body cam after Nichols was handcuffed, saying Nichols had almost hit the officer’s car. It appeared overly aggressive to pull Nichols from the car as was done, but we don’t know at this point what happened to lead up to that moment. The Memphis PD has stated that its internal investigation was unable to corroborate the reckless driving claim.

It’s important to note that despite what media reports suggest, the video doesn’t support that Nichols was assaulted during this initial encounter. What appears to take place is that an officer forcibly removed Nichols from his car and tried to get him to lie on the ground on his stomach. Nichols refused to roll onto his stomach, despite several officers trying to move him to that position. A “drive stun” was threatened, which is a contact stun with the taser, but it isn’t clear that the taser was deployed. Then an officer threatened to pepper spray Nichols, who continued to refuse to move to his stomach. The officer then sprayed Nichols, who struggled to his feet and ran away from officers. One of the officers tased Nichols, but the probes didn’t stick and Nichols is seen running out of the camera frame while taking off his sweatshirt.

An officer is on video at a later point describing how Nichols had grabbed his holstered firearm during this initial encounter. Another officer confirms seeing it at the time. It is unclear from the video that this occurred, though closer review of audio might pick something up. If that did occur as alleged, it changes things dramatically.

A few minutes after fleeing from the initial stop, officers spotted Nichols on foot and gave chase. One officer had to tackle Nichols, who was running. Another protracted struggle ensued with several officers. At one point, as Nichols raised up to his knees while struggling with officers, an officer struck Nichols with a baton on the upper arm three times. These strikes were ineffective, and failed to result in compliance.

The use of pepper, taser, and baton during the incident were ineffective, but arguably were within common police use-of-force policy.

The actions that were out of common policy and which were arguably criminal in nature involve five closed-fist punches landed to Nichols’s head and face by one officer during the second encounter. Nichols had risen to his feet during the struggle with officers. Nichols’s arms were being controlled by two officers, and the punches were obvious attempts to knock Nichols unconscious or at least knock him to the ground. The last punch wobbled Nichols and he went to the ground. The other actions that crossed the line involve one officer who attempted to kick Nichols in the head while he was held on the ground by two officers.  It’s unclear that the kick landed, as the officer appears to have missed and lost his footing.

There isn’t a lot of specificity distinguishing what each officer is alleged to have done. From my review of the available video, most of the activity at the two scenes involved a lot of ineffective grappling with Nichols, trying to get him to lie on his stomach and put his arms behind his back. Outside of the five strikes to the head by one officer this was not, as has been reported, one continuous beating of a cooperative man for 15 minutes. Use of force incidents never look or sound good.

Typically, investigators work tirelessly to gather evidence to show which defendant did what, and to what degree. As currently charged, the Shelby County District Attorney has alleged that each of the five officers charged committed second-degree murder, aggravated assault, aggravated kidnapping with bodily injury, aggravated kidnapping in possession of a deadly weapon, official misconduct, and official oppression — equally. After watching the video, it seems a stretch that all five are equally culpable of 2^nd degree murder and all the other accompanying charges.

To some, that may be a troubling statement, and some prosecutors might disagree, but from my experience, five civilians involved in varying degrees of an incident rarely all get charged equally. Instead, a review of the facts leads to charges specific to the actions of each suspect individually. Minnesota does have an aiding and abetting statute that, when charged, provides for equal culpability of defendants who act in concert to carry out a crime. A similar statute has not reportedly been charged against the Memphis officers. That seems problematic.

A final note of importance. If the reporting is accurate, no official cause of death has been determined yet. It is certainly likely that the medical examiner will determine that the cause of death was blunt force, but that apparently isn’t the case yet. That’s a potential problem.

By the way, don’t confuse what the Shelby County Medical Examiner rules with statements from the pathologist the Nichols family has hired through prominent attorney Ben Crump. They could easily end up having conflicting interests.

The entire incident was avoidable, as multiple officers should have been able to effectively apprehend and secure Nichols without injury. Upon securing Nichols, any injuries should have been attended to initially by officers, and then by Fire EMTs and ambulance paramedics. Instead, little to no care was administered while Nichols flopped over repeatedly, even after EMTs arrived. This lack of medical treatment demonstrated a lack of humanity that is indefensible, and it compounded the earlier actions. Nichols’s welfare was square in the hands of the officers who took him into custody, and they failed.

Responding Fire Department EMTs and at least one police lieutenant also failed, and have paid with the dismissal from their respective departments.

I agree with the importance of holding officers accountable to maintain the public trust in policing and the criminal justice system. However, in my opinion a separate standard of applying criminal statutes to officer behavior than is applied to citizen behavior is a mistake — one that serves no one well in the end. 

I get the sense that a growing number of people aren’t too concerned with this distinction. I understand where those feelings come from, as my former profession has brought a lot of this on itself. However, from my experience incidents such as this are rare, and the overwhelming majority of police are professional, competent, trustworthy, and — most importantly — continuously improving. 

Wisely, a recent Wall Street Journal opinion piece about the Nichols case noted “….the solution is to recruit and train more good police, not condemn all police.”  

I couldn’t agree more.