Below is my column on the release of the videotapes in the Nichols case and what they suggest about the prosecution of the five officers accused of murder. This is the longer version of the column that ran in the New York Post.
Here is the column:
The release of the videotapes from the lethal arrest of Tyre Nichols, 29, shows a shocking lack of professional tactics and procedures. This looks like adrenaline-filled rage . . . from the officers. At certain points, it is the suspect who sounds to be trying to deescalate the situation.
It is unfortunately not unique. In physical encounters, officers can escalate violence and lose control with lethal consequences.
The footage helps establish a number of legal points. The force is clearly and undeniably excessive. It was a complete breakdown of training and supervision.
It is hard to look at this tape objectively and analytically given the emotional impact of the scene. Yet, the footage helps establish a number of legal points.
There is both a state and federal investigation ongoing and the tapes will help and hurt aspects of those cases.
There is ample basis for taking a second-degree murder case to trial. However, the tape also shows where the defense is likely to go in the coming weeks.
The officers are not just facing second-degree murder charges but a whole slew of charges from aggravated assault, aggravated kidnapping to official oppression. The aggravated assault and official oppression charges are amply supported by the videotape. The defense will likely focus on controlling the damage rather than leave the case unscathed.
The defense is likely to attack the second degree murder charge because there was a rapid escalation and a defendant fled. One officer is shown saying that Nichols tried to grab his gun. While the beatings on the tape could well justify most people fleeing in fear, second degree murder is “a knowing killing of another.” It does not require premeditation. The officers appear out of control but the counsel will argue that they did not knowingly or intentionally try to kill Nichols. Indeed, his death may have been caused in part by the delay in medical aid.
The aggravated kidnapping could also face challenge. Usually an invalid stop or arrest is not treated as kidnapping, particularly after a suspect allegedly flees.
Finally, the “one-size-fits-all” charges for five officers could prove problematic. The officers are not using the same level of force. The worst acts include an officer positioning himself to get a clear shot to kick Nichols in the face as two officers struggle with him on the ground.
Most horrific cases tend to look monolithic at the outset. However, more granular details emerge over time that can differentiate the conduct of individual officers. The detail on these tapes shows different conduct and levels of force that a jury will have to balance.
Civil Rights Violation
The tapes would initially appear to show a death caused by excessive force caused by a lack of training and control rather than racial animus. However, this case was quickly framed in racial terms. That is not unique with our hair-triggered commentary and coverage.
This month, when a man killed 10 people and injured 10 others in Southern California, politicians and pundits rushed forward to declare the attack as a hate crime. Senate Majority Leader Chuck Schumer denounced the “bigotry and hate” of the crime.
Politicians did not wait to learn that it was committed by an Asian American with a history of mental illness who claimed to be “the president of Tokyo.”
Similar comments followed the death of Nichols before it was revealed that all of the officers are also African-American.
That is why the move of the Justice Department to open a civil rights investigation is surprising. While denouncing this killing, Police chief Cerelyn “CJ” Davis told the public that the race of the officers “takes off the table that issues and problems in law enforcement [are] about race.”
There was a general rule that such civil rights investigations would follow state investigations and charges. That rule was discarded by the Obama Administration in cases like the killing of Trayvon Martin. After the fanfare of the investigation, the Administration quietly shut it down and did not bring any charges.
This is another case where the opening of the civil rights investigation may be premature. This is not a case of local authorities who are showing a lack of effort or an animus toward the deceased. Memphis quickly fired all five officers and indicted them in a remarkably short time. They publicly denounced the officers’ actions and sought second-degree murder convictions.
Since a federal prosecution would follow the state prosecution, it is not clear why the Biden Administration launched the investigation. Having a set of federal investigators pursuing witnesses and analyzing evidence can present challenges for local police in making the case against these officers.
One element that remains unknown is the view on the validity of the traffic stop. Officers are shown on videotape saying that Nichols almost hit their car and was driving dangerously. Race-based incidents often involve pre-textual or invalid reasons for a stop. The prosecutors expressly declined to say that the initial traffic stop for reckless driving was pre-textual.
In the end, the mere fact that the officers are black does not negate the possibility of a civil rights violation. However, the videotapes suggest a more common explanation of officers who are poorly trained and out of control in a physical altercation.
What is most clear is that the officers all deserved to be fired and that justice is being done. That point may be lost on protesters, but the police, prosecutors, and defense counsel are seeking real justice in the case of Tyre Nichols.