MEMPHIS, Tenn. — Two former Memphis Police officers named in a $550 million lawsuit against the City of Memphis over the death of Tyre Nichols are asking to be dismissed from the suit.
Attorneys representing Preston Hemphill and Dewayne Smith filed the motion Oct. 16, 2023. The two have not been charged, but Hemphill was fired and Smith was allowed to retire before he could be fired.
The new motion claims the lawsuit failed to ‘state a cause of action against them in their individual capacities,’ and that the two are immune from a lawsuit under the ‘Tennessee Governmental Tort Act.’ The officers’ attorneys claim that means that no claim can be brought against them “for negligent acts or omissions committed by them within the scope of their employment,” basically claiming the two officers as individuals are immune from a negligence lawsuit from acts in their capacity as governmental employees.
The motion also claims the filing – made by Nichols’ mother Rowvaughn Wells acting as administrator of the estate – has no standing and can only be brought by Nichols’ child, and that Wells failed to specifically name the child as the sole beneficiary of the complaint.
“It will be up to the court whether or not if the case gets entirely thrown out or if the child is allowed to be subbed in, but if it follows Tennessee Law like it’s supposed to the motion may have some merit,” said Claiborne Ferguson, Memphis Attorney.
Ferguson says that while this could provide a road block for those representing Nichols family, there are still a few routes that can be taken moving forward.
"Substituting the child in at this time if that is the proper plaintiff would seem to be the proper remedy in this case," says Ferguson, "At the end of the day, whether you call it a Civil Rights Case or a police brutality case, you're looking at who are the survivors of this case that are entitled to compensation."
If the case is dismissed, Ferguson says the correct party will have to refile the case by January 7th, 2024, when the statute of limitations runs out.
This all comes after a motion by the city of Memphis to try to stop the lawsuit, claiming Nichols’ death was the result of actions by “five rogue officers,” and that the city, as a whole, did not have a hand in his death.
Attorneys for Nichols’ family responded to that motion, saying, “The liability here extends far beyond those officers, through the ranks, and up to the City of Memphis, itself … The City of Memphis tolerated the unlawful and unconstitutional conduct of the SCORPION Unit with deliberate indifference to their known misconduct."
The $550 million lawsuit filed by Nichols' mother blames officers for his death and accuses police chief Cerelyn "CJ" Davis of "turning a blind eye" to MPD's SCORPION unit's "aggressive style of policing" even before Nichols' assault.
The five former Memphis Police Department (MPD) officers charged with second-degree murder in connection with Nichols' death are Emmitt Martin III, Demetrius Haley, Justin Smith, Desmond Mills Jr. and Tadarrius Bean.
They have pleaded not guilty to criminal charges including second-degree murder in the Jan. 7 beating of Nichols after a traffic stop that was caught on video— and his death three days later. Nichols died of blows to his head, and the manner of death was homicide, an autopsy report released May 4 showed.
Three Memphis Fire Department emergency medical technicians who were fired for failing to render aid to Nichols as he struggled with his injuries also are defendants in the lawsuit.
In July, the U.S. Department of Justice announced it's launching a civil rights "pattern or practice" investigation into the Memphis Police Department and the City of Memphis.
The Associated Press contributed to this report.
