Ex-Memphis police officers say Tyre Nichols' mother has no standing to sue, ask to dismiss

Two now-former officers with the Memphis Police Department are joining the City of Memphis' motion to dismiss the $550 million civil lawsuit that was brought against the city and a number of individuals in the wake of Tyre Nichols' death.

In the motion filed by Preston Hemphill and Dewayne Smith, attorneys for the officers argue that the lawsuit cites an incorrect constitutional amendment violation, that they are protected from the suit by the Tennessee Governmental Tort Liability Act and that Nichols' mother, RowVaughn Wells, does not have standing to sue on Nichols' behalf.

In Wells' lawsuit, her attorneys cited due process violations as one of the claims made against MPD and the officers, which falls under the Fourteenth Amendment. Hemphill and Smith's attorneys argue that the lawsuit should have cited the Fourth Amendment, which pertains to excessive force during an arrest.

"In Graham v. Connor, the Supreme Court held that if a constitutional claim is covered by specific constitutional provisions such as the Fourth Amendment, the claim must be analyzed under the standard appropriate to that specific provision and not under the more general rubric of substantive due process," Hemphill and Smith's attorneys wrote. "In other words, a substantive due process claim under the Fourteenth Amendment would lie only if the Fourth Amendment does not apply. Since plaintiff's claim is based upon an unreasonable seizure, it should be analyzed under the Fourth and not the Fourteenth Amendment, and therefore the Fourteenth Amendment claim should be dismissed."

Hemphill and Smith's attorneys also argued that they are protected under TGTLA, which says that claims against government employees who are acting as government employees cannot be made when injury is caused by "negligent act or omissions of any employee within the scope of his employment."

The TGTLA claim is one that is commonly used by the City of Memphis in various lawsuits, and was cited in its own motion to dismiss that was filed July 7.

Unique to Hemphill and Smith's motion to dismiss is an argument that Wells does not have standing to file the lawsuit. Instead, attorneys for Hemphill and Smith argue that the lawsuit would have to be brought by Nichols' son, or the guardian of that son, because the person who would have "the highest priority is a surviving spouse, followed by any children, and then to the next of kin."

Because Nichols was not married, the person with the highest priority would be his son, the attorneys argue.

"Prior to commencing this action, plaintiff knew this child existed but failed to properly identify and name the minor child as the actual beneficiary in the complaint," the attorneys wrote. "As a minor, Tyre Nichols' child is under a legal disability and may not bring an action in his own name, but must be represented by either a general guardian, a committee, a conservator, a like fiduciary, a next friend or a guardian ad litem. There is no evidence that plaintiff has been given any legal authority whatsoever to sue on behalf of Nichols' minor child. Whether plaintiff can sue for the benefit of Nichols' minor son is a question of who has the right to litigate on his behalf."

According to the two former officers' attorneys, Nichols' son's mother would have to consent to the lawsuit in order for Wells to have standing.

Wells entered into the lawsuit as "administratrix ad litem," which is the person who oversees someone's estate, and the attorneys argue that someone overseeing an estate cannot bring a wrongful death suit.

"While an action for wrongful death may be instituted and maintained by an administrator, it has long been settled that the administrator sues as a representative of the next of kin, and not as a representative of the estate or of creditors," they wrote. "An estate has no standing to bring a wrongful death action 'because it is clear that an estate lacks any interest in a wrongful death suit in Tennessee.'"

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The lawsuit was first filed in late April, a few months after Nichols was killed. It cites negligence on a number of levels and accuses MPD of having policies in place that would violate the civil rights of Memphians.

After filing the suit, notable civil rights attorney Ben Crump, who is representing Wells, said the suit was a "landmark lawsuit" honored Martin Luther King, Jr. by asking for $10 million in damages for each year since his assassination — a total of $550 million — and for its scope.

"The amount we are suing for is a message," Crump said. "It is our mission to make it financially unsustainable for these police oppression units to unjustly kill Black people in the future. What makes this a landmark lawsuit is that we're going to see, in the near future, these officers admit that this is how they were trained. This is going to be the first time in America where we're going to hear police officers saying, 'No, we weren't just bad apples. We were not just somebody out for Saturday night kicks to beat up somebody. This is what they trained us to do to young, Black men.'"

Lucas Finton is a criminal justice reporter with The Commercial Appeal. He can be reached at Lucas.Finton@commercialappeal.com and followed on Twitter @LucasFinton.

This article originally appeared on Memphis Commercial Appeal: Tyre Nichols case: Ex-MPD officers say mother cannot sue, request dismissal