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By now, we’ve all seen the video of the horrific Tyre Nichols police encounter. The various tactical and ethical failures of the officers involved are self-evident. It is now time to begin assessing the response of the relevant authorities.
While the reaction of any thinking person to this event is primarily emotional, the case is now entering the legal realm. As it should. That’s our system.
First off: The net is going to get wider. While Shelby County DA Steve Mulroy is holding indictments on the five officers, the Memphis Fire Department is reportedly investigating the actions of emergency medical personnel (who arrived over 20 minutes after being called, and allegedly did not immediately render aid). In addition, the Shelby County Sheriff’s Office has announced investigations of two deputies who arrived to the scene after the beating. Both deputies have been relieved of duty.
Tyre Nichols, in a photo provided by his family.
(Courtesy of the Nichols family via AP)
The Tennessee Bureau of Investigation (TBI), Tennessee’s statewide police agency, is also involved, likely overseeing and augmenting all these state-level processes.
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While DA Mulroy concentrates on the criminal charges, at the least a wider investigation of the patterns and practices of the so-called Scorpion unit is likely to occur. The unit, constituted as Memphis PD’s front-line against a serious crime problem, was launched with much fanfare, including plaudits from the mayor during his 2022 state-of-the-city address. The unit has now been disbanded. It will likely be the TBI, perhaps together with the Tennessee attorney general, which will handle this review.
Such an investigation should focus on issues like how officers were recruited into the unit; the unit’s training and control; and any allegations of past bad acts by unit members.
A protestor holds a sign during a rally against the fatal police assault of Tyre Nichols, in Atlanta, on Jan. 27, 2023.
(Cheney Orr/AFP via Getty Images)
Regarding recruitment, what will be asked is: Were veteran officers chosen? How were they vetted? In addition to their past arrest activity, were their disciplinary and integrity records assessed? Or even: Is the Memphis PD so depleted, there was little choice in selecting officers? (In 2018, the MPD was reportedly forced to lower its hiring standards to attract new hires.)
Regarding training and control: What was the unit’s in-service training program? How often administered? What was the unit structure? As personnel forward-deployed in the city’s high-crime areas, was there adequate frontline supervision?
And further, what was Chief Cerelyn Davis’ role in devising, implementing and directing this major, highly publicized initiative? We can be assured any successes by the unit would’ve been highly touted. Executive management has to therefore own its failures as well. So far, that has not been part of the narrative.
Regarding prior bad acts: Chief Davis and the DA’s Office moved quickly on this case – the officers were fired and indicted within a month of the event. This likely is at least part of why reaction in the streets has (thus far) been muted. But investigators will undoubtedly reach back to see if warning signs were missed. Indeed, there is some indication of past questionable activities that were reported but not investigated.
With all this going on, what should be guarded against is a feeding frenzy. For instance, the Justice Department has announced that it is looking to bring a concurrent civil rights case. Generally, such federal cases are reserved until after any state prosecution concludes. Bringing it now could prove a complication. For instance, it is not clear that all five officers are going to be found to be equally culpable in the state case – the charges could still be revised.
Indeed, we are beginning to see the individual officers lawyer up, and so their interests diverge. What if one of the officers becomes a cooperator in the state case? Will that hold federally? What if statements made by the officers (or any other evidence) contradicts reporting federal investigators obtain?
RowVaugn Wells becomes emotional during a press conference at Mt. Olive Cathedral CME Church after she viewed footage of the violent police interaction that led to the death of her son Tyre Nichols in Memphis on Jan. 23, 2023.
(Brandon Dill for The Washington Post via Getty Images)
Any lawyer advocating for one of these officers will look to raise contradictions between the state and federal cases, so as to cast doubt on the allegations against his client. Like it or not, that is just good lawyering.
Further, when the feds bring such a case, what generally results is the installation of a “federal monitor.” That is, the federal court appoints someone – generally a law firm – to oversee reforms to the target agency.
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The problem with this approach is that federal monitorships often prove interminable. There is great incentive to continue the monitorship as new issues are uncovered – and as municipal checks continue to arrive in the monitor’s account.
If a federal monitor is ultimately installed, the court should put a ceiling on the time – and money – the monitor has to do its job.
There is also the risk of over-politicizing the case if it goes federal now. There is enough controversy surrounding DOJ’s Washington leadership. At this stage, DOJ shouldn’t muddy the waters. Let the criminal case play out, and TBI assess the Scorpion unit and, potentially, the MPD’s overall policies.
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Calls for nationwide police “reform” through congressional action are also an overreaction. The nationwide shock, and focus on, the Tyre Nichols case should demonstrate how rare an occurrence this event was. With bodycams standard equipment these days, covering up such actions is a virtual impossibility.
In the end, legal and bureaucratic wrangling becomes a distraction. We should avoid it. What is most important now is the administration of justice for Tyre Nichols – and the initiation of specific, targeted reforms in Memphis to prevent a recurrence, and to restore the public’s confidence.
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