'Unconstitutional blitzkrieg': Lawyers for Tyre Nichols' family argue against civil case dismissal

Attorneys for the family of Tyre Nichols, the 29-year-old Black man who died after being beaten by Memphis police officers, said Memphis Police Chief Cerelyn "C.J." Davis, over the 14 months after the creation of the since-disbanded SCORPION Unit, would "maintain, tolerate and deliberately ignore unconstitutional policies and customs." The condemnation came in response to the City of Memphis' motion to dismiss a $550 million lawsuit pending against them.

In the response, filed Monday, attorneys said it would not be proper to dismiss the case, citing four prongs that allege Davis and the city "explicitly instructed SCORPION to violate the constitutional rights of Memphis citizens," that Davis allowed a culture of constitutional violations to persist in the department, and that Davis "failed to provide any training or supervision" to SCORPION Unit officers.

The motion to dismiss requested the city, Davis and former MPD Lt. Dewayne Smith be removed from the case, requesting instead that the lawsuit only involve the five "rogue officers" that have been criminally charged with Nichols' death.

"This case arises from a tragic encounter between plaintiff’s son, Tyre Nichols, and five rogue police officers that resulted in Nichols’ death," the motion to dismiss states. "Nichols’ life was cut short by the actions of these rogue officers, and the city in no way condones, ratifies or approves of those actions."

The city also argued that attorneys for RowVaughn Wells, Nichols' mother, did not point to official policies that authorized the officers that beat Nichols to act unconstitutionally, saying such a policy does not exist in the department.

"Instead, plaintiff badly asserts that Chief Davis ‘encouraged and authorized’ the SCORPION Unit to 'disregard and violate the Constitutional and Fourth Amendment rights of Memphis citizens…'" the motion read. "Plaintiff did not point to a specific policy or facts which would show that the city encouraged or authorized any police officer to behave in such a manner ― let alone the manner described in the complaint. Plaintiff implausibly alleges that the City, through its Chief of Police, maintained an official policy of authorizing officers to attack, assault, and use excessive force against a compliant individual, but Plaintiff fails to identify the specific policy that required its officers to act with impunity and in total disregard of established constitutional law."

In response to this aspect of the motion to dismiss, attorneys for the Wells family said policies did not have to be explicitly written and could have been verbal commands from Davis. In their filing, they said these orders included her overstepping "her constitutional limits by giving unconstitutional directives to her officers."

The response listed seven alleged policies, though it is unclear where some of them were obtained from. The policies listed allege that Davis was:

• "Instructing SCORPION to focus on an all-out strategy of seizing citizens and their property through traffic stops in derogation of the Fourth Amendment."

• "Instructing SCORPION to take property from Memphis citizens without a valid constitutional basis 'even if [the case] gets dropped in court.'"

• "Instructing SCORPION to deprive citizens of their property without due process, without legal basis and in disregard of their constitutional rights."

• "Instructing SCORPION to disregard and violate the constitutional rights of Memphis citizens through unlawful and baseless searches and seizures and the use of excessive force."

• "Instructing SCORPION to employ ambushing, aggressive harassing and searching Memphis citizens in public."

• "Instructing SCORPION to omit written reports if they engaged in searches without finding drugs or weapons to maintain a stronger 'hit rate' on stops."

• "Instructing SCORPION officers to engage in unconstitutional traffic stops and employ aggressive police tactics to achieve quotas."

According to the response, Wells' attorneys said Davis gave these orders "in hopes that an unconstitutional blitzkrieg would instill enough fear and lead to enough arrests to reduce crime."

The city, in its motion to dismiss, said that it was unaware of complaints and that some came prior to Davis' tenure as police chief.

In arguing against the city’s point that it was unaware of complaints from Memphis citizens about MPD officers’ and SCORPION officers’ tactics, the filing lists seven examples ― each included in the initial complaint ― of SCORPION officers allegedly using excessive force. That, the filing said, was compounded by the demeanor of the officers that beat Nichols, and that of the additional officers that arrived after Nichols was handcuffed.

"The repeated blows over a period of several minutes, the taunting, the taking of pictures and the lack of any remorse as over a dozen more of defendants’ employees arrived at the scene demonstrated the lengths to which this feeling of impunity extend," the response said. "These officers knew their conduct would be tolerated because it had been tolerated numerous times before without any discipline or sanction."

More: One man died in Memphis police custody Friday after a pursuit in Midtown

The filing also pointed at an early December 2022 Memphis City Council Public Safety Committee meeting where “activists described the longstanding, continuing violent traffic stops by Memphis police officers resulting in frequent injury and even several deaths going back to 2013” as Davis and the city being notified of these incidents.

"Put simply: Chief Davis and the city were aware and did nothing to address the SCORPION Unit’s tactics and practices and turned a blind eye," attorneys for the Wells family wrote. "They were deliberately indifferent. As a result, just one month after the hearing, days after multiple other incidents, and having done nothing to curtail the SCORPION Unit’s sting, they beat Tyre Nichols to death."

An additional motion requested that any mention of the Atlanta Police Department's RED DOG Unit be stricken from the complaint. In that request, the city said "the material [in the complaint] contains allegations that are 'immaterial, impertinent or scandalous'" and should be stricken as a result. The city also claimed the mention of the Atlanta unit was "prejudicial."

"Plaintiff’s inclusion of the allegations related to the RED DOG Unit are nothing more than an attempt to bolster the threadbare claims of Monell liability against the city defendants," the city's request read. "Instead of supporting her Monell claims with relevant, pertinent and current facts pertaining to MPD, plaintiff attempts to stretch back in time almost fifteen years to raise allegations about the unit in another city’s police department to support her claims."

In response to that request, Wells' attorneys argued that its inclusion is "at the heart" of its argument that both the City of Memphis and Davis were aware of what could happen with saturation policing.

"References to the RED DOG Unit are material, pertinent and relevant as they have significant bearing on the alleged liability in this case by providing critical context and background for Chief Davis' role and knowledge in ultimately forming the SCORPION Unit within the Memphis Police Department," Wells' attorneys wrote in a separate filing. "They show that the violations of Tyre's Fourth Amendment rights were a foreseeable result of this type of policing."

The Department of Justice announced last month it would be conducting a pattern or practice investigation into MPD. The investigation will primarily look at the last five years to determine if MPD officers routinely use excessive force, violate people's fourth amendment rights and discriminate in its policing.

Although saying the investigation was not brought on by one specific instance, Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division said the DOJ had received reports about possible violations, such as using force punitively and after someone was already detained.

Related news: Officers in Tyre Nichols civil suit ask for halt in case, say it could be 'prejudicial' to criminal case

“Other information indicates the Memphis Police Department may be using an approach to street enforcement that can result in violations of federal law, including racially discriminatory stops of Black people for minor violations," Clarke said. "Such encounters can be harmful and can also violate the law. Our review indicates that even in a majority Black city, MPD’s traffic enforcement may focus disproportionately on the Black community.”

Nichols was pulled over for what was initially said to be reckless driving, though MPD later said there was no evidence to say he was violating the law. He was aggressively pulled from his car and onto the ground, where he appeared to get pepper sprayed by officers, before running from officers.

He was eventually caught, taken to the ground and beaten. Officers punched, kicked, pepper sprayed and hit Nichols with a baton before handcuffing him and leaving him by an unmarked police car. He died three days later in the hospital.

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: Attorneys for Tyre Nichols' family argue against civil case dismissal