You’ve seen the videos and you are shocked. Tyre Nichols was stopped by Memphis police officers, dragged from his car, and savagely beaten by police officers. When he fled, they chased him. He was hunted down, beaten some more as he screamed nightmarishly for his mother, and then left to succumb to his injuries as officers milled about.
The officers involved have been fired and charged with serious crimes: murder and kidnapping among them.
It’s simply another case of police brutality, a shocking disregard of the basic rights of black men – Mr. Nichols, you must know, was black. Never mind that the officers who assaulted him were black. When it comes to systemic racism, it’s turtles all the way down. Racism explains everything, these days, even black on black violence.
Maybe that’s right, but there are questions, questions what will likely be raised at any criminal trial resulting from Mr. Nichols’ death three days later at a local hospital. The pity is that the Memphis Police Department fired the officers before asking these questions.
First, why was Mr. Nichols stopped? And why is the first video we see one where not one, but two police cars are next to Mr. Nichols’ stopped car? Is there no audio tape, no body camera from the first officer on the scene? (The video we see is worn by the second officer to arrive.) Looking at the videos Memphis released it looks like Mr. Nichols was stopped for no reason at all. If that is so, it is outrageous.
But in the fourth video Memphis chose to release, one officer talks about trying to stop Mr. Nichols while Mr. Nichols was driving. Mr. Nichols reportedly swerved the car he was driving as if to strike the officer’s car. The officer contends he hit his siren to signal the need to stop before Mr. Nichols swerved. If that is true, and it may not be, that might explain the aggression on the part of officers as they approached Mr. Nichols’ car.
Second, why did officers want to stop Mr. Nichols in the first instance? Again, no explanation – zero. An officer on the fourth video released by Memphis talks about not finding anything in Mr. Nichols’ car, suggesting that Mr. Nichols might have thrown “it” while he was running after the first struggle with cops. What is the “it”? What did officers think they saw?
Third, did any other officers involved in the extraction of Mr. Nichols from his car follow use of force policies they were trained in? Mr. Nichols was issued verbal commands, he was told to get on the ground, hand holds were used to push him down, as Mr. Nichols struggled and resisted, he was tased and pepper-sprayed. I’ve handled scores of police misconduct cases: this all looked by the book. Officers tried and failed to get his hands behind his back, as they are trained to do with a struggling detainee. Still, Mr. Nichols managed to get on his feet and run. Presumably, officers in Memphis had good cause to give chase.
Fourth, once Mr. Nichols was found and apprehended at the corner of Ross and Castlegate Lane, how many times and over what period of time was he commanded to show his hands to officer? I counted close to 40 over several minutes. Officers would have good reason to escalate the use of force if they were, in fact, in a struggle with a resisting man at close quarters. One officer said after the melee that Mr. Nichols grabbed for his gun. That may be retrospective bluster, but as the struggle occurred, officers had good reason to escalate the use of force. Officers are trained that close quarter struggles can be deadly.
Fifth, how many times was Mr. Nichols tasered and sprayed? How are officers trained to think about a subject who is not subdued by these tools? Did they have reason to escalate the use of force yet more, including the use of a baton? And, if so, did Memphis fail to provide guidance on blows to the head? It’s hard to justify kicks to the head.
Sixth, we’ve heard something about the autopsy commissioned by Mr. Nichols’ family, but we have not seen the state’s complete autopsy. What killed Mr. Nichols? What was his blood chemistry? He appears lucid and non-intoxicated when he his dragged from his car. But were there narcotics in his system that might have contributed to his reaction both the force used against him and to his reaction to being tasered?
The few videos we have been shown are disturbing, but they don’t settle what happened to Mr. Nichols and why it happened. Officers are trained in the use of force to subdue a resisting subject. They are taught to use reasonable force. Was this force reasonable given the totality of the circumstances the officers faced on the scene?
In 1984, the United States Supreme Court decided a case called Graham v. Connor. The Court’s analysis of the use of force, an analysis rooted in fourth amendment limits on reasonableness, sheds some light on the questions to be asked now in Memphis. The Court’s language is a warning to the Friday-evening quarterbacks who were so quick to rush to judgment after Memphis released its videos.
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation,” the Court said.
“Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it…. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” the decision reads.`
The Court also said: “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”
And here is the kicker and why I hope the Memphis five elect to go to trial in the criminal cases rather than enter a plea: “‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers… violates the Fourth Amendment.”
In other words, context matters. Memphis didn’t give any. Questions remain about why the officers acted as they did. There has yet to be a complete inquiry into what happened to Tyre Nichols. Memphis’ rush to judgment is unseemly.