Are the Memphis cops in the Tyre Nichols case really guilty as charged?

As I browse through headlines and social media posts about the death of Tyre Nichols, the vast majority indicate that the five police officers “killed him.” Please allow me to suggest that, in the words of the Bard, “the lady doth protest too much.” This case screams for a more deliberate and dispassionate analysis. First, let’s look at the indictment. The charges are “second degree murder, aggravated assault, aggravated kidnapping, official suppression [sic] and two counts of official misconduct.”

We’ll go in reverse order because the lesser charges are the easiest to deal with. By the way, I’m relying on the extremely careful frame-by-frame analysis by Attorney Andrew Branca, one of America’s premier experts on use of force law. (That page is currently missing from Rumble, but the Web Archive proves its existence.)

Official misconduct,” a Class E felony, is defined in Tennessee law as when “a public servant… with intent to obtain a benefit or to harm another…” does bad things. The key is “intent.” There could be no personal benefit to any of the officers, so prosecutors will need to prove intent to harm. With the possible exception of the single kick to the head, every blow delivered to Nichols can be seen as intended to subdue a person who was vigorously resisting arrest. (Keep your rotten tomatoes and size 12s. Watch Branca’s video.)

Official oppression“ is another Class E felony that requires “intentional mistreatment” or “intentional unlawful arrest.” Again, this is a problem for prosecutors. Unless they can prove that the original traffic stop was unlawful, Nichols resisted arrest, first by flight, then with considerable energy after the officers caught him. Actions after a lawful arrest cannot be an intentional unlawful arrest. They can be mistreatment, but that must be proved.

Image: Tyre Nichols arrest. YouTube screen grab.

“Aggravated kidnapping” first requires kidnapping. If the arrest was lawful, it can’t be kidnapping. The term “aggravated” refers to deadly force and is only meaningful here if Nichols was actually kidnapped. The prosecution should lose this count.

Aggravated assault“ for this analysis is when someone “Intentionally, knowingly or recklessly causes [serious] bodily injury to another.” Again, this is a problem for the prosecution. The State must prove beyond any reasonable doubt that the blows against Nichols were intentionally designed to injure him. Since he was actively resisting arrest and the officers were trying to subdue him, their acts were presumptively lawful unless they were clearly excessive force. Nichols’ continued resistance suggests they were not, with the possible exception of the kick to the head.

Second degree murder“ is a “knowing killing” of another person. As noted above, this requires intent. That is, the officers had to intend to kill him. But if that was the case, why did they all stop once they finally were able to put handcuffs on Nichols? He did not die until three days later. This one question goes directly to the heart of the matter. If they intended to kill, they would have continued until he was seriously dead. Further, there is exactly one blow landed of all those shown in the entire video that can, in isolation, be considered a use of deadly force. That is the single kick to the head.

A quality defense attorney will give the prosecutors their money’s worth. I won’t venture to suggest how the case will turn out, but an acquittal is within the realm of reason simply because the law requires an unlawful arrest and the intent to harm. The flight to avoid arrest is a clear contradiction to the former, and proving intent for the latter is not easy.

The Tyre Nichols case is ugly. It’s really easy to understand how people are upset and see police officers trying to brutalize a helpless victim. But is that really what happened? Could it be that the entire event was brought on by the lawless actions of Nichols himself?

These difficult questions are why we have courts as triers of fact. It also advises us to avoid precipitous declarations before carefully analyzing all the information. Pundits beware.

Ted Noel MD is a retired Anesthesiologist/Intensivist who podcasts and posts on social media as DoctorTed and @vidzette. His DoctorTed podcasts are available on many podcast channels.

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