By the time the City of Memphis released footage from a fatal encounter with Memphis police, nearly three weeks had passed since the initial traffic stop that would result in the brutal beating that authorities say cost Tyre Nichols his life.
Nichols, a 29-year-old FedEx employee and a father, was pulled over by Memphis police for alleged reckless driving, and two ensuing "confrontations" occurred, per the initial Memphis police tweet. A widely circulated photo of Nichols laying in an intensive care bed, swollen beyond recognition, gave the public a decent idea of what occurred.
It also intensified the demand for the public release of the footage.
The almost three-week wait was historically brief for Memphis, a city that has typically not seen footage of police violence until investigations are complete months or a year later, but still remains lengthier than Nashville, which releases video footage of incidents almost immediately.
The release of that footage, and the pace at which involved officers were fired and indicted, was without precedent in Memphis and Shelby County. Still, many wondered why Nashville residents are typically able to view footage from use-of-force incidents that involve Nashville law enforcement more routinely, and faster.
The Commercial Appeal, part of the USA TODAY Network, spoke to representatives of the Shelby County District Attorney's office, the Tennessee Bureau of Investigation, the Tennessee Coalition for Open Government, and the Metropolitan Nashville Police Department.
Ultimately, the final authority to release footage from incidents involving officers using force on a citizen rests with the law enforcement agency that captured any recordings of fatal encounters between police and citizens.
Nashville police defer to the director's discretion
Don Aaron, the public affairs director of Nashville police, pointed to verbiage within the memorandum of understanding between the Metro Nashville Police Department, the Tennessee Bureau of Investigation, and the District Attorney General of Metropolitan Nashville and Davidson County.
"MNPD audio, video, incident scene photographs, 911 call recordings, recovered surveillance, etc. shall only be released to the news media or on any social media platforms after notifying TBI of its intended release. TBI understands that MNPD will make an independent decision as to when and if to release the above-listed items but agrees to notify TBI for situational awareness prior to its release," the memorandum reads.
In other words, Aaron confirmed, Nashville police released footage quickly at the direction of MNPD Chief John Drake.
"This office has adopted a policy to give our community a basic understanding of what occurred with the understanding that an investigation is ongoing," Aaron said.
TBI has a similar memorandum with Memphis police and the Shelby County district attorney, but with an important difference – the lack of a clause regarding when and how footage from use-of-force incidents can be released.
Even if the Memphis-specific memorandum did contain such direction, memorandums are non-legally-binding documents, often described as "a gentleman's agreement."
Keli McAlister, a public affairs officer for TBI, acknowledged the agency cannot prevent a police department from releasing the footage.
"While state statute – T. C. A. § 10-7-504 – prohibits TBI from releasing information or evidence in our investigations, our agency does not have the authority to prohibit a local agency from releasing information about an ongoing investigation. However, to preserve the integrity of an investigation, local agencies are encouraged to allow adequate time for our analysis and documentation of evidence before its release," McAlister said.
Mulroy points to investigation procedure as key to timing
Since his election in early August, 2022, Shelby County District Attorney General Steve Mulroy has requested investigative assistance from TBI for four fatal encounters between MPD officers and civilians.
In the case of Nichols' death, Mulroy's office reiterated a commitment to full transparency and a desire for the public to see for themselves what happened the night he was pulled from his car by Memphis police. But Mulroy's office also emphasized the need for investigating agencies to conduct essential components of any investigation before footage is released.
And, his office said, the family of a victim should always be allowed to view footage of their loved one's death before the public does.
Mulroy may not have the final word on when footage from these encounters is released, but his office, like city officials, urged for patience as investigations at both the state and federal level kicked into gear.
Though TBI does not have the authority to prevent a police agency from releasing material from an ongoing investigation, the district attorney's office does have state law to abide by, a spokesperson said.
"State law bars release of TBI investigative files without a court order. There’s an exception for fatal officer-involved shooting deaths, but that doesn’t apply here," Mulroy's office said.
Deborah Fisher, the executive director of the Tennessee Coalition for Open Government, pointed to Tennessee's Rules of Criminal Procedure.
"In this scenario, video footage can be withheld from the public under the Rules of Criminal Procedure – the source of the so-called investigative exemption," Fisher said. However, a law enforcement agency may release its own files if it wants to. We see this often, such as when police release video or pictures of someone that they want the public to help find, for example. So it’s discretionary."
In spite of the release of footage, Memphis policy remains unclear
It's unclear if the speed with which footage from Nichols' death will become a standard going forward. Memphis police were not able to immediately respond to questions about their policy moving forward.
And the answer can't be gleaned from the four TBI investigations into fatal encounters with Memphis police. Three other shooting deaths occurred in December; Nichols death is the latest, but the only one in which the public has seen body camera footage.
Micaela Watts is a reporter covering issues tied to access and equity. She can be reached at firstname.lastname@example.org.
This article originally appeared on USA TODAY: Why can't Memphis release body camera footage as quickly as Nashville?