The five officers who beat Tyre Nichols to death have been charged by the state of Tennessee with murder in the second degree. Perhaps because of the race of the officers, we have been spared the usual mewling from the copaganda brigades arguing that the officers did nothing wrong and shouldn’t be charged with any crime. But there has been some debate about whether the cops have been charged with the right crime. That discussion has been complicated by the fact that the legal definitions of various criminal homicides—manslaughter, murder, and the various degrees of each—don’t always match up with our colloquial understanding of these terms. “Murder in the first degree” sounds more murder-y than “murder in the second degree,” while “voluntary manslaughter” sounds like a fancy lawyer trick to help murderers escape accountability.
The legal jargon around this topic is thick, because humans have invented all sorts of reasons and justifications for killing each other. Yahweh can say, “Thou shalt not kill” and then run back to his mountaintop or spaceship or whatever, but he never met an American police officer.
Allow me to clear up some of this legal terminology so we can get to the heart of what the law is trying to do, and what prosecutors are trying to prove, when they charge somebody—especially a cop—with some form of homicide.
To start, a homicide is the killing of one human being by another. But not all homicides are crimes. All of the noncriminal homicides are called “justifiable homicides,” and most people know what they are from watching TV. “Self-defense” is the most common form of justifiable homicide.
Justifiable homicides are what’s called an “affirmative defense.” That means that the killer has to prove that they had a good, and legally valid, reason for killing the victim. A killer will essentially forfeit their presumption of innocence—they’re not innocent; they’re admitting to killing another person—and instead argue that the killing was justified for some reason. Technically, that legal standard also applies to cops who are accused of criminal homicides; but in practice, prosecutors, judges, and especially majority-white juries act like homicides are presumptively justified when the police kill. Moreover, cops are the only people allowed to use deadly force as a matter of course. Most of the time, cops who commit homicides are not charged with any crime at all. When they are charged, they claim the homicide was justified and, more often than not, a jury allows them to walk free.
Broadly speaking, there are four categories of criminal homicide, and getting a cop charged and convicted of any one is itself a herculean task given the advantages cops enjoy in our criminal justice system. I will use the broadest, standard definitions for these categories, but it is important to note that homicide is a state-level crime, and each state uses slightly different terms or defines the standard terms slightly differently.
Involuntary Manslaughter:
Involuntary manslaughter is essentially the catch-all term for criminal homicides where the intent to kill cannot be proven but a person’s reckless or negligent actions led to another’s death anyway. The most common example of this is drunk driving. A person who gets behind the wheel drunk doesn’t necessarily intend to kill anybody, but if they do, it is a criminal homicide.
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Most states break involuntary manslaughter down to more specific categories, each with different levels of punishment. For instance, a drunk driver who kills somebody will often be charged with “vehicular manslaughter,” while a person who accidentally pushed another into oncoming traffic during an argument might be charged with “negligent homicide.” Some states call involuntary manslaughter “manslaughter in the second degree.”
Even though the intent to kill cannot be established, what truly distinguishes involuntary manslaughter from a pure accident is that the intent to do the thing that led to death can be proven. Maybe I didn’t mean for you to die, but if I meant to do the inherently dangerous thing that killed you, that’s usually enough. Recently, actor Alec Baldwin was charged with involuntary manslaughter for shooting a person with a prop gun that was actually loaded with live ammunition.
The cops who killed Tyre Nichols will surely argue that they committed no crime at all but that, if they did, it was the crime of involuntary manslaughter. They’ll argue that they meant to beat him up, not kill him. That argument shouldn’t hold up, however. The depravity and viciousness of the beating should at least bump them up a few categories.
Voluntary Manslaughter
This is the crime when the intent to kill can be established, but the killer can argue that they had a good reason or provocation. It’s different from a justifiable homicide in that the reason or provocation is not a legally justifiable reason like defense of self or imminent harm, but it’s different from murder in that there was something that happened in the moment to provoke or inspire the killing. Voluntary manslaughter is the law’s way of saying, “You shouldn’t have killed that person, but I understand why you did.”
The textbook examples here are the much-popularized “crimes of passion.” For the record, I happen to think that “crime of passion” defenses are utter bollocks. I think they’re a misogynist anachronism born of a toxic male logic that says, “Sometimes you just have to murder your wife and her lover if you catch them in bed.” That’s not “passion” but murder, plain and simple.
But nobody listens to me, and voluntary manslaughter statutes are on the books everywhere. In most states, catching someone in the act of adultery is sufficient to establish a voluntary manslaughter charge so long as there was not a “cooling off” period. That period is key to all voluntary manslaughter cases, because the assailant has to show that there was no time to think better before killing someone. Voluntary manslaughter supposes that the killer didn’t fully appreciate the gravity of their actions before making the snap decision to kill somebody.
Mere words are not usually enough to establish the provocation necessary for voluntary manslaughter, but most assaults are. So, again, if somebody hits you and embarrasses your manhood and you shoot them before having the opportunity to think, “Hey, maybe I shouldn’t shoot people,” voluntary manslaughter might be right for you.
While I clearly don’t like the charge for regular people, I think most of the times police kill unarmed people they should be charged with voluntary manslaughter. That’s because the charge can also be used for what’s called “imperfect self-defense.” That’s when a person believes that they are in critical danger, but they are simply wrong or unreasonable to think so. Cops regularly claim that they “thought” a suspect had a gun or was going for theirs or was in some other way a grave threat to others. And often, the cops are wrong. What this means is that we have a charge right here that can hold those cops accountable instead of letting them walk free every time they claim a Black man had the strength of a thousand men and was just about to shoot them with their cell phone.
Kim Potter, the Minneapolis police officer who shot Daunte Wright and claimed he was going for her Taser, was convicted of voluntary manslaughter (called “manslaughter in the first degree” in Minnesota), and I think that’s about the right outcome. She thought she was in danger, but she wasn’t. She thought she was using reasonable force, but she wasn’t. The legal solution to that isn’t “whoops”; it’s “voluntary manslaughter.”
The cops who killed Tyre Nichols, however, should not be able to avail themselves of this charge. There was no provocation: Even when Nichols tried to run away, running is not provocation for homicide. And there was no self-defense, imperfect or otherwise. And they had plenty of time to “cool off” while waiting for their turn to strike him with their sticks. Nichols was no threat to them when they beat him to death.
Murder in the Second Degree:
Murder 2 is regular old murder. You killed somebody. It wasn’t justified, it wasn’t an accident, and you weren’t provoked. You just went out there and killed somebody. Go directly to jail, do not pass GoFundMe, do not collect money from MAGA supporters.
Murder 2 also encompasses “depraved indifference to human life” or “extreme recklessness.” This allows the law to be flexible enough to deal with people who claim that they didn’t know their murderous actions would lead to death. When biblical Cain hits Abel with a rock, he can’t say, “Oh my, rocks are harder than heads, who knew?”
I think it’s unfortunate that murder 2 is denoted as such, because it makes it seem like a less serious charge than murder 1—the junior version of “murder.” It’s really not. Some jurisdictions don’t even distinguish among types of murders. There’s just “murder” and aggravating or mitigating circumstances that can elevate and lower the jail sentence for those murders.
The cops in the Nichols case have been charged with murder 2 and, based on what we know, that seems like the appropriate charge. They used deadly force against an unarmed man, on purpose, and he died. Whether the cops intended to kill him is irrelevant, because they exhibited depraved indifference to whether he lived or died.
We can see all of that in the video footage of their crime. But there is the possibility that more evidence will come out that will warrant charging them with more than regular murder.
Murder in the First Degree:
Murder 1 is a murder that was planned. It’s the premeditated killings carried about by serial killers, assassins, and terrorists. In some states, murder 1 is punishable by death, which is morbidly ironic considering that there is no greater level of premeditation than a state-sponsored execution.
Some states require additional “aggravating” circumstances for murder 1. For instance, in New York, a murder that is intentionally committed while committing a rape or a robbery will elevate a criminal homicide to murder 1. Arson is a murder 1 offense, even if the arsonist didn’t know or intend for anybody to be caught in the fire.
In most states, killing a police officer is an aggravating circumstance that leads to a charge of murder 1—and the death penalty where applicable. But rarely do we see the cops themselves charged with this crime. The top charge against Derek Chauvin, the officer who killed George Floyd, was second-degree murder: “unintentional second degree murder while attempting to commit felony assault” under Minnesota law. But he was, at least, convicted of that.
Indeed, it’s difficult to see how any cop would be charged with first-degree murder, because it’s hard to prove that cops engaged in the requisite premeditation before killing people, unless the cops kill people while perpetrating some other, heinous crime. Even an officer with a history or violence and brutality can argue, probably successfully, that they didn’t wake up in the morning looking for somebody to kill that day.
I do not expect the officers who killed Tyre Nichols to be charged with anything more than murder 2, and again, based on the video, I think that’s the right charge. But there is the open question of why the officers stopped Nichols in the first place. The police say that Nichols was stopped for “reckless driving,” but the level of aggression exhibited against him from the moment they stopped him strains the credibility of that explanation.
For what it’s worth, lying in wait for any victim that happens to pass also counts as the premeditation necessary for a murder 1 charge.
Still, applying any of our laws about murder to cops that commit murder is a step in the right direction. Maybe it will help cops learn that they are subject to our laws and don’t exist above them.
