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Police Brutality – Tyre Nichols


January 27, 2023 by Tom Roberts, Esq.

Tyre Nichols Beating
Photo of Virginia Lawyer Thomas H Roberts

Critical legal analysis of the Memphis Police brutal beating of Tyre Nichols by Civil Rights Attorney Tom Roberts - Tyre Nichols had a right to run for his life due to excessive use of force by Memphis Police

On January 7, 2023, in a simple traffic stop for “suspected reckless driving” Memphis Police brutality beat Tyre Nichols who had every right and reason to run for his life.  Tyre Nichols, a 29-year-old man died three days later on Jan. 10, 2023 from the savage beating.

This Has To Stop!

“As a nation we must stand together and say “This has to stop!”  This should not be a political football – this impacts all citizens.  We cannot become desensitized to this sort of violence.  There is no excuse for such brutality in our police forces. And juries cannot signal to police officers that they may continue to misbehave with minor slaps on their wrists, like the jury did in the case involving Lt. Nazario.” – Tom Roberts, Esq.

Was Tyre Nichols wrong to run?

Memphis police triggered Tyre Nichols' fight or flight panic mode

When a motorist is faced with unreasonable force by police officers he is placed instinctively into a fight or flight mentality.  This is why gas-lighting and blaming the citizen is inappropriate.  The police have a duty to de-escalate simple traffic stops, so that citizens are not pushed to fight or flight.  Unreasonable force triggers the legal right of citizens to fight or flight using reasonable force.  See below for more explanation.

What is excessive force?

Unreasonable Force is Excessive Force

Excessive use of force is any force used in an illegal arrest or unreasonable use of force in a lawful arrest or detention.  The force used against Tyre Nichols was brutal and unreasonable.

"Reasonable Force" - An Objective Standard.

Perspective of a reasonable officer on the scene.

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.”

What factors are considered to determine if police force was unreasonable?

Each Case is Unique

Courts look to the facts and circumstances of each case. 

Key Factors Considered

The key factors for an objective standard are the following:

  1. the severity of the crime at issue,
  2. whether the suspect poses an immediate threat to the safety of the officers or others, and
  3. whether he is actively resisting arrest or attempting to evade arrest by flight.

An Objective Analysis of the Tyre Nichols Beating using the "Graham" Factors

Factor 1 - Severity of the Crime at Issue

1st Factor Weighs In Favor of Tyre Nichols

It looks like it was a simple traffic stop–(“suspicion of reckless driving” according to Memphis Police) — in other words the severity of the crime at issue was minimal! This means the suspected “crime” committed by Tyre Nichols does not weigh in favor of officers beating him to make an arrest.

Factor 2 -Immediate Threat To Safety of Officers or Others

Punches to Tyre Nichols Face

2nd Factor Weights in Favor of Tyre Nichols

The Entire Time

Tyre Nichols posed no immediate threat to the safety of the officers or others – but was rightfully scared for his life–which he lost.  This means that this factor does not weigh in favor of the officers beating him to make an arrest.

At the Traffic Stop

The officers approached the vehicle with excessive force and guns drawn, while Tyre Nichols protests that he wasn’t doing anything wrong.  They continue with the unreasonable escalation taking him out of the car in a chaotic fashion and with unreasonable force.  Tyre Nichols rightfully feared for his life. 

When they cornered Tyre Nichols

They had five officers tackling him and wrestling with him.  The serious escalation of police brutality and barbarism begins with the seemingly out of-shape officer strolling over to kick Tyre Nichols multiple times in his head and face.  Then there were full windup blows with the telescopic baton, and then multiple bare knuckle blows to his face and head while he was held defenseless by the Memphis police officers.

Factor 3- actively resisting arrest or attempting to evade arrest by flight

Tyre Nichols Brutal Beating

Tyre Nichols right to resist and run for his life!

3rd Factor Is More Nuanced But Weighs In Favor of Tyre Nichols

Tyre Nichols Traffic Stop
At the initial traffic stop.

There appears to be no indication that when they pulled him out of the car that he was actively resisting or attempting to evade — he was merely protesting that he had done nothing wrong to warrant the unreasonable force being used against him.

Scared to Death He Flees.

Fearing for his life in the face of the unreasonable force he manages to break free and flee.


This is where it gets more nuanced. It appears that 28 states have either legislatively or judicially abrogated the common law right to use physical force to resist an arrest which is unlawful but which does not utilize unreasonable force. None of that applies here – where the officers began with unreasonable force.

When taking into account the immediate escalation of unreasonable force by the officers, which triggered Tyre Nichols right to resist and flee for his life, this factor also weighs in favor of Tyre Nichols and against the officers!

Tyre Nichols right to resist and to run!

The use of unreasonable force by the officers entitled Tyre Nichols to use reasonable force to resist the unreasonable force of the officers. 

Federal Court has recognized that Tennessee Law says a citizen has the right to resist excessive force by police officers.

The Federal Sixth Circuit Court of Appeals described that right to Tennessee citizens as follows:  

“The law in Tennessee is that an officer’s use of pre-resistance excessive force is a statutory defense to the crime of resisting arrest. Tenn. Code Ann. § 39-11-611(e) 3; State v. Tidwell, No. 01C01-9807-CC-00288, 1999 Tenn. Crim. App. LEXIS 674, 1999 WL 436840, at *3 (Tenn. Crim. App. June 30, 1999) (“The legality of the arrest is not relevant to the determination of whether the defendant committed the offense of resisting arrest, unless the defendant is claiming self defense against excessive force from officers.”). In Roberts v. Anderson, 213 Fed. Appx. 420, 2007 WL 79057, at *6 (6th Cir. 2007), the Sixth Circuit observed that, “under Tennessee law, an officer’s excessive use of force is a defense to a charge of resisting or evading arrest; thus, a guilty plea and resultant conviction of such a charge necessarily includes a finding that the officer did not use excessive force.””
Hayes v. Kingsport Police Dep’t, No. 2:06-CV-107, 2008 U.S. Dist. LEXIS 25239, at *10-11 (E.D. Tenn. Mar. 20, 2008)

Memphis 5

Memphis 5 - Officer

Demetrius Haley, Desmond Mills, Jr, Emmitt Martin III, Justin Smith and Tadarrius Bean

Tennessee Law

What does Tennessee Law add to the analysis?

Tennessee law clearly says that the life-taking force cannot be used for traffic offenses or misdemeanors even if that means Tyre Nichols would have escaped!

Tennessee law,T.C.A. § 40-808 provides, “If, after notice of the intention to arrest the defendant, he either flee[s] or forcibly resists, the officer may use all the necessary means to effect the arrest.” The basic principle, as codified in the statute, is that an officer may only use the force reasonably necessary to accomplish the arrest, with due regard to other attendant circumstances, such as his own safety or that of others present. See Annot.: Peace Officer’s Liability for Death Or Personal Injuries Caused By Intentional Force In Arresting Misdemeanant83 A.L.R.3d 238 (1978). It is familiar law that a policeman has less privilege to use force in apprehending an alleged misdemeanant than an alleged felon. We think it is well settled in Tennessee, as expressed by this Court in Human v. Goodman, 159 Tenn. 241, 18 S.W.2d 381 (1929), that:

Except in self-defense, an officer cannot resort to the extremity of killing, or shedding blood, in arresting or in preventing the escape of one charged with an offense less than felony, even though the offender cannot be taken otherwise. 159 Tenn. at 243-44, 18 S.W.2d at 381.(emphasis added)

Bates v. City of Knoxville, 1986 Tenn. App. LEXIS 2740, *17-18

Officers witnessed and failed to intervene to stop the beating may be liable.

The Sixth Circuit has stated that by-standing officers may also be liable. 

Generally, “a police officer who fails to act to prevent the use of excessive force may be held liable when (1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring.” Turner, 119 F.3d at 429 (citing Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)).
Shook v. Reinacher, No. 04-CV-71004-DT, 2005 U.S. Dist. LEXIS 61730, at *29 (E.D. Mich. June 10, 2005)

Federal Law

Can the officers hide behind Qualified Immunity in a Civil Case?

The Sixth Circuit needs to continue to move towards restricting the former practice of shielding police officers from misconduct by use of qualified immunity.

Recent Improvement

In 2022, the Sixth Circuit applied the 3 factor test in determining whether a reasonable officer should have known that his conduct violated “clearly established law” stating

“Because the right to be free from being tased and subjected to physical force (in the alleged form of punching, knee strikes, kicking, and hitting) while not actively resisting and while being non-violent was clearly established prior to 2019, Powers was on “notice that his specific conduct was unlawful.” Rivas-Villegas, 142 S. Ct. at 8. Thus, a reasonable jury could find that Powers violated Shumate’s clearly established right to be free from excessive force. The district court properly denied Powers qualified immunity for the § 1983 claim.”
Shumate v. City of Adrian, 44 F.4th 427, 450 (6th Cir. 2022)


Older Shielding of Police

In 2012, the the Sixth Circuit Court of Appeals stated that the general fact that it is clearly established that unreasonable force violates the U.S. Constitution – that is not enough to remove the shield that the courts created to protect police officers and government officials from misconduct!

The Court stated, “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” al-Kidd, 131 S. Ct. at 2084 (internal citations omitted). “In other words, the fact that it is clear that any unreasonable use of force is unconstitutional does not mean that it is always clear which uses of force are unreasonable.” Casey, 509 F.3d at 1284 (emphasis in original).


Court said officer shielded by qualified immunity even if excessive force was used when tasing a person for a nonviolent misdemeanor when fleeing

Taking this guidance into account, we define the question this case presents as whether a misdemeanant, fleeing from the scene of a non-violent misdemeanor, but offering no other resistance and disobeying no official command, had a clearly established right not to be tased on July 3, 2008. Because neither case law, nor external sources, nor “[t]he obvious cruelty inherent” in taser use, Hope, 536 U.S. at 745, would have put every reasonable officer on notice that Hall’s conduct violated the Fourth Amendment in July 2008, we hold that Hall is entitled to qualified immunity, even if he did use excessive force.

Cockrell v. City of Cincinnati, 468 F. App’x 491, 494-95 (6th Cir. 2012)

Who Was Tyre Nichols?

Photo of Tyre Nichols

Tyre Nichols was a human being, not a dog!  He was 29 years old, the father of a 4-year old son.  He loved nature and photography and skateboarding.  He worked with FedEx. He was two minutes from Rowvaughn Wells, his mother’s home, calling out to her when he was savagely beaten. His mother described him “My son was a beautiful soul.”  He loved his mother, had a tattoo of her on his arm.  Almost every day he used his break from work to eat dinner with her at her house. He was about 100 yards from her house when he was beaten.

Into the Weeds - Law Stuff

What are the leading Supreme Court Cases?

This standard was set out by the United States Supreme Court in Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989). Bell v. Wolfish, 441 U.S. 520, 559 (1979). See Tennessee v. Garner, 471 U.S., at 8-9 (the question is “whether the totality of the circumstances justifie[s] a particular sort of . . . seizure”).

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.”

Survey of States that do NOT permit citizens to resist an unlawful arrest not "involving unreasonable" force

States where courts have removed the common law right to resist a unlawful arrest when officer is not using unreasonable force

Eleven states have judicially abrogated the common law right to use physical force to resist an arrest which is unlawful but which does not utilize unreasonable forceSee Miller v. State, 462 P.2d 421, 427 (Alaska 1969); State v. Hatton, 116 Ariz. 142, 568 P.2d 1040, 1046 (Ariz. 1977); State v. Richardson, 95 Idaho 446, 511 P.2d 263, 268 (Idaho 1973); State v. Thomas, 262 N.W.2d 607, 610-11 (Iowa 1978); State v. Austin, 381 A.2d 652, 655 (Me. 1978); In re Welfare of Burns, 284 N.W.2d 359, 360 (Minn. 1979); State v. Nunes, 546 S.W.2d 759, 762 (Mo. Ct. App. 1977); State v. Koonce, 89 N.J. Super. 169, 214 A.2d 428, 436 (N.J. Super. Ct. App. Div. 1965); State v. Doe, 92 N.M. 109, 583 P.2d 473, aff’d in part, rev’d in part, 92 N.M. 100, 583 P.2d 464, 467 (N.M. 1978); State v. Peters, 141 Vt. 341, 450 A.2d 332, 335 (Vt. 1982); State v. Valentine, 132 Wash. 2d 1, 935 P.2d 1294, 1304 (Wash. 1997).


States where legislatures have removed the common law right to resist a unlawful arrest when officer is not using unreasonable force

Seventeen other states have signaled their agreement by legislatively abrogating the common law defense. See Ala. Code § 13A-3-28 (1994); Ark. Code Ann. § 5-2-612 (Michie 1993); Cal. Penal Code § 834a (West 1985); Colo. Rev. Stat. § 18-8-103(2) (1990); Conn. Gen. Stat. § 53a-23 (1985); Del. Code Ann. tit. 11 § 464(d) (1995); Fla. Stat. Ann. § 776.051(1) (West 1992); Ill. Ann. Stat. ch. 720, para. 5/7-7 (Smith-Hurd 1993); Mont. Code Ann. 45-3-108 (1995); Neb. Rev. Stat. § 28-1409(2) (1995); N.H. Rev. Stat. Ann. § 594:5 (1986); N.Y. Penal Law § 35.27 (McKinney 1987); Or. Rev. Stat. § 161.260 (1990); 18 Pa. Cons. Stat. Ann. § 505(b)(1)(i) (1983); R.I. Gen. Laws § 12-7-10 (1994); S.D. Codified Laws Ann. § 22-11-5 (1988); Tex. Penal Code Ann. § 9.31(b)(2), § 38.03 (West 1994).

Tennessee Criminal Law

What is 2nd Degree Murder in Tennessee?

Second degree murder is the “knowing killing of another.” Tenn. Code Ann. § 39- 13-210(a)(1).

The word “knowing” is defined in Tennessee Code as follows:

“Knowing” refers to a person who acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person’s conduct when the person is aware that the conduct is reasonably certain to cause the result.

Tenn. Code Ann. § 39-11-106(20) .

The definition is divided into three parts; namely,

  1. the nature of the defendant’s conduct,
  2. the circumstances surrounding the defendant’s conduct, and
  3. the result of the defendant’s conduct


Focus is on "result -of-conduct" - Officers must intent result of conduct

Second degree murder is a “result-of-conduct offense” which “requires that the culpable mental state accompany the result as opposed to the nature of the conduct.” State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). In second degree murder, the result of the conduct is the sole element of the offense, whereas the nature of the conduct is inconsequential. Id. Thus, in order to satisfy the “knowing” mental state for second degree murder, the state must prove beyond a reasonable doubt that the defendant “[was] aware that the conduct [was] reasonably certain to cause the result.” It is insufficient to establish that the defendant was simply aware of the nature of his conduct or that the circumstances surrounding his conduct existed.

State v. Dupree, No. W1999-01019-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 65, at *9 (Crim. App. Jan. 30, 2001)

What is voluntary manslaughter in Tennessee?

Voluntary manslaughter is an “intentional or knowing killing of another in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13-211(a). Thus, to support a jury instruction on voluntary manslaughter, the proof must support findings that the accused committed the killing while in a “state of passion” and that the passion resulted from “adequate provocation.”
State v. Henderson, No. M1999-00547-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 316, at *16-17 (Crim. App. Apr. 11, 2002)

What is Involuntary Manslaughter 0r Criminally Negligent Homicide in Tennessee?

"Criminally Negligent Homicide" replaces "involuntary manslaughter"

When the General Assembly enacted the Criminal Sentencing Reform Act of 1989, involuntary manslaughter was replaced by the offense of criminally negligent homicide. See Sentencing Commission Comments to Tenn. Code Ann. § 39-13-212; State v. Adams, 916 S.W.2d 471, 473-74 (Tenn. 1995). The General Assembly supplied a simple definition for this offense. “Criminally negligent conduct which results in death constitutes criminally negligent homicide.” Tenn. Code Ann. § 39-13-212(a).

What the state must prove for criminally negligent homicide.

To establish this offense, the plain language of the statute requires the State to prove three essential elements beyond a reasonable doubt:

  1. “criminally negligent conduct” on the part of the accused;
  2.  that proximately causes (“which results in”);
  3. a person’s “death.

Tenn. Code Ann. § 39-13-212(a); See also Adams, 916 S.W.2d at 474; State v. Owens, 820 S.W.2d 757, 760 (Tenn. Crim. App. 1991). 

Criminal Negligence further defined

Criminal negligence is further defined by statute as follows:

a person . . . acts with criminal negligence with respect to the circumstances surrounding that person’s conduct or the result of that conduct when the person ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person’s standpoint

Tenn. Code Ann. § 39-11-106(a)(4); see also State v. Clifton, 880 S.W.2d 737, 742-43 (Tenn. Crim. App. 1994); State v. Butler, 880 S.W.2d 395, 397 (Tenn. Crim. App. 1994) (discussing this definition).

State v. Farner, 66 S.W.3d 188, 198-99 (Tenn. 2001)

What are the elements of "kidnapping" in Tennessee?

Jury Instruction in Criminal Trials

To find the defendant guilty of [especially] [aggravated] [kidnapping] [false imprisonment], you must also find beyond a reasonable doubt that the removal or confinement was to a greater degree than that necessary to commit the offense(s) of     as charged [or included] in count(s)    . In making this determination, you may consider all the relevant facts and circumstances of the case, including, but not limited to, the following factors:

(a) the nature and duration of the alleged victim’s removal or confinement by the defendant;

(b) whether the removal or confinement occurred during the commission of the separate offense;

(c) whether the interference with the alleged victim’s liberty was inherent in the nature of the separate offense;

(d) whether the removal or confinement prevented the alleged victim from summoning assistance, although the defendant need not have succeeded in preventing the alleged victim from doing so;

(e) whether the removal or confinement reduced the defendant’s risk of detection, although the defendant need not have succeeded in this objective; and

(f) whether the removal or confinement created a significant danger or increased the alleged victim’s risk of harm independent of that posed by the separate offense.

Unless you find beyond a reasonable doubt that the alleged victim’s removal or confinement exceeded that which was necessary to accomplish the alleged     and was not essentially incidental to it, you must find the defendant not guilty of [especially] [aggravated] [kidnapping] [false imprisonment].

7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 8.01-.03, 8.05 (footnote omitted) (citing White, 362 S.W.3d at 578-81). 

Court explains need to define "substantial interference with victim's liberty"

In White, we concluded that even though the jury instructions by the trial court tracked the language of the relevant kidnapping statute, they were deficient because “they did not define the key element—the substantial interference with the victim’s liberty—as requiring a finding by the jury that the victim’s removal or confinement was not essentially incidental to the accompanying felony offense.” 362 S.W.3d at 580. Determining that “th[e] proof could be interpreted in different ways,” we reversed the conviction and remanded for a new trial so that the trial court could properly instruct the jury to consider, as a question of fact, whether the removal or confinement of the victim constituted a substantial interference with her liberty, id. at 579, 581.
State v. Cecil, 409 S.W.3d 599, 607-08 (Tenn. 2013)

Likely Defense Tactic

In this case of the Memphis Police – they will undoubtedly argue that Pennsylvania v Mimms 434 U.S. 106 (1977) authorizes a officer to order a person out of the car in a traffic stop.  But that right is tempered by the right of a citizen to resist unreasonable force.

Thomas H. Roberts & Associates, PC
Virginia’s Personal Injury & Civil Rights Law Firm
105 S 1st Street
Richmond, Virginia 23219

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