William Katz:  Urgent Agenda

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A GUIDE TO UNDERSTANDING:  Jonathan Turley, of the George Washington University school of law, is one of the best and most understandable legal commentators we have.  You can see him often at Fox News.  In the hours since release of the deeply disturbing video from Memphis, he has published an analysis of the event that I recommend to all readers.   From the New York Post: 

The release of the videos from the lethal arrest of Tyre Nichols, 29, is shocking for its 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 de-escalate 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. 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 a 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. 
The tapes would initially appear to show a death caused by excessive force rather than racial animus. However, this case was quickly framed in racial terms. That is not unique to 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 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. 

COMMENT:   Please read the whole thing, and other good commentaries.  An observer charged that CNN has hyped its coverage of this tragedy as if it were the Super Bowl.  I'm afraid that's true.  It is the role of the knowledgeable commentator, like Jonathan Turley,  to supply the sober context that will make the legal case understandable, and to do so in an informed, neutral manner.  This contribution is sorely needed.

January 28, 2023