The Brotherhood of the Knife

Lawyers for Baltimore police officers Garrett Miller and Edward Nero, both charged with the false imprisonment of Freddie Gray for having arrested him without probable cause, have gone on the offensive.  Good. That’s what they’re supposed to do, aggressively defend their clients.

But having raised some issues, the media has seized upon them and, in furtherance of their desired outcome, awarded the cops the win.  Not so fast, guys.

Mosby correctly notes the “knife was not a switchblade”—but police never said it was.

“The knife was recovered by this officer,” Officer Garrett Miller wrote in the arrest report, “and found to be a spring-assisted, one-hand operated knife.”

Spring-assisted knives open on their own after a small push on the blade by a finger, unlike switchblades, which shoot out with the press of a button.

Despite their differences, they’re both illegal in Baltimore.

They are? When you quote a piece of a local ordinance and omit the rest, it may appear so, but that’s kinda disingenuous.  Instead, let’s go to the source.

§ 59-22. Switch-blade knives.
(a) Possession or sale, etc., prohibited.
It shall be unlawful for any person to sell, carry, or possess any knife with an automatic spring or other device for opening and/or closing the blade, commonly known as a switch-blade knife.

So it says switch-blade up top and switch-blade on the end. Could it be that this law applies to, oh, switch-blades?  Even assuming it’s just another example of a poorly written law, replete with ambiguity because whoever wrote it has no clue what they’re talking about, but meant to prohibit switchblades even if they struggle to described it adequately, the Rule of Lenity applies to resolve the ambiguity.

So the description of the knife in the write-up appears accurate, “a spring-assisted, one-hand operated knife,” and still doesn’t amount to an illegal knife because that is neither the elements of the ordinance or the definition of a switchblade.

But, as those who enjoy knife culture (which, to distinguish it from, say, “rape culture,” consists of people who enjoy, appreciate and collect knives), they see a far more  nefarious problem here that many others won’t.  Knives are the black hole of police scam justifications for arrest and seizure.  It’s not just Baltimore, but a pervasive problem.

Some will cry that they’re dangerous weapons, and it’s true that they can be.  Just like the one you have in your kitchen will do a perfectly adequate job of harming someone, provided that is how you choose to use it.  Or it can be characterized as one of the most useful, indeed miraculous, tools ever created. Imagine life without knives? It would suck.

But knives have been used as a facile catch-all excuse for arrests for decades. Perfectly legal knives, but the mechanism of the system, an arrest and somewhat-artful write-up that fudges the details sufficiently to create the appearance that a knife may be illegal, producing a quickie plea down at arraignment and a fine, has served as a great excuse for cops to teach someone a lesson about who’s the boss.  Judges, who cowardly shrug and say, “well, if you want to challenge whether the knife is legal, you can always go to trial,” are complicit in allowing this scam to happen.

What may come out of this case, the scrutiny being paid to knives, is that there will finally be some resolution to the scam. For those who aren’t knowledgeable about knives, for whom they all seem pretty much alike and indulge their ignorance to muddle the nuances that distinguish a lawful from an illegal knife (which, in itself, is nothing more than a silly remnant of the street gang hysteria of the 1950s), perhaps this will be the chance to end the scam.  Cops will hate it, as they’ve long enjoyed the excuse to flex their power over people committing no crime, but no doubt they’ll come up with some other excuse to arrest the innocent.

And as to the clueless argument questioning whether Maryland State Attorney Marilyn Mosby “even saw the knife,” she has people. To suggest that this is about what Mosby, personally, observes is silly. It’s an office, and she’s at the head of it.

But what does the “legal expert” from the John Jay School of Coppery and Shoe Repair have to say?

Larry Kobilinsky, a professor of forensic science at New York’s John Jay College of Criminal Justice, believes Gray’s knife could make or break Mosby’s case.

“I think it makes a lot of difference if the arrest was legal,” Kobilinsky said. “If they took him into custody and had reasonable suspicion that a crime had been committed, then they acted reasonably in restraining him and taking him to jail.”

Sequence matters. In this case, Gray made eye contact with Lt. Brian Rice, and then ran.  Contrary to popular belief, making eye contact isn’t yet a crime, and while flight from a police approach gives rise to a reasonable suspicion for a Terry stop, there doesn’t appear to be any police approach. Just eye contact.

But what followed was a full blown arrest first, with forcible take down and cuffs. Only afterward did they find a knife, with a frisk in the absence of any basis to believe Gray was a threat.  Let’s be real, the knife was the excuse for the arrest, the thing to be put on paper, because “he made eye contact” wasn’t a good enough excuse, even for cops.

The notion is that after-acquired justification for an arrest does not excuse an arrest before there was any basis for it.  Or more simply put, the end doesn’t justify the means, so the “arrest first, come up with an excuse later,” does not give rise to a lawful arrest.

And yet, it’s a fair question as to what a court will do with the defense’s motion to dismiss.  The best argument available to the defendants is that even if the law is ambiguous and the knife was legal, they reasonably believed it to be illegal under the Baltimore ordinance because they’re just a bunch of silly cops, the law is vague and ambiguous, and all knives look alike to them. A judge may buy this, because one never knows what a judge may buy.

More importantly, as the Supreme Court says, cops are neither bound by mistakes of law nor fact.  If a judge finds the mistake objectively reasonable (meaning it makes the judge scratch his head and shrug), then whether the knife is a switchblade or not magically becomes irrelevant, as it’s close enough.

And then the knife falls into the big fuzzy hole of almost law, along with all the other lawful but kinda–maybe-it-could-be-unlawful conduct that police can use to justify their seizure and arrest.  And when it comes to cops and our civil right to be left alone (not to mention alive), this is often good enough.

21 thoughts on “The Brotherhood of the Knife

  1. John Barleycorn

    Wouldn’t that be a bonus?

    Millennial Marilyn Mosby’s efforts also putting forth a de facto but definitive Baltimore “knife” memo of sorts. Just think of all the joy that could bring to the cheap seats carving up smuggled fruit and corned beef in the bleachers!

    Will there be no end in sight to abuses of the more subtle nuisances of the rule of law that this tragedy could disinfect?

    But as per usual you leave the cheap seats perpetually unfulfilled with “…because one never knows what a judge may buy.”.

    Granted this assessment is most notable for its accuracy and your repetitive reminders (I should link fifty or so if your posts here to back that up just for fun) but even you must see the dower doldrums for the cheap seats when even you can’t find an ounce of even cynical optimism for systemic judicial leveling.

    What will become of the sacred institution if judges don’t even have to pretend to be literal widows from reality to collect such handsome latitude in their discretion when even fickle divorces from reality, such as this post demonstrates.

    Will the bench be allowed to slowly melt away any pretense of concern for the intent of the rule of law, let alone the laws themselves (even poorly written ones) if it is not suitable to their fancy?

    Never mind I could link a few posts brushing past that as well perhaps…

    P.S. It wouldn’t kill you to show a little bit of smirk from time to time if not a raised eyebrow to the possibility of “progress” or at least a slowing down of the of the pendulum now any then. But then again that might make you boring in a twisted sort of way that could get tiresome for some personalities.

    1. SHG Post author

      Ever notice that no matter how many times I write the same thing, some day-tripping jerkoff always tries to jump on my soapbox to inform me of the obvious? I really hate that.

    2. Donny G.

      Why do you exist? Surely there are better uses for oxygen, protein, fat, and fresh water than you.

      And if you could write a page of semi-coherent crap in response, that would be just dandy.

      1. SHG Post author

        That was really kinda mean. Has it occurred to you that I am required by the ADA to provide Barleycorn access? Do you want the DoJ to jump down my throat? Do you?

        1. John Barleycorn

          Yeah!

          BTW Donny G, how would you know if I am inadvertently or intentionally chopping off an entire run on sentence or even three -that could have put the sting in my stamp- of my early morning abortions?

          You do know that doesn’t mean I regret their gender indeterminate status enough not to preform CPR on them sometimes and roll with it just to have the companionship on the bus.

          So you just better chill out and say hello, and play nice before you start criticizing my preferred breast feeding methods while nurturing my abortions on the bus. Some of which, mind you, actually even turn out to surprise me with their special coherent resilience.

          And I will tell ya, because I know you are-a-wondering, if the outer interpretations of the ADA aren’t enough to have the esteemed one wondering if he will ever be able to have nice things ever again in his lifetime due to me forcing him to allow my revived abortions on his bus don’t you worry they are definitely protected under Title IV so you best not have me fass-ing my neo-feminist moles at the DOJ on him again or everything can turn into a never ending lap dance in comedic torture purgatory.

          So you can just take your “hating” on the nurturing of my aborted coherent-s and stick it right up concise’s “o” before you melt the special snowflakes in my tumbler or I will get my moles at the DOJ involved in my early morning abortions and show you all about the limits of coherent.

          Changing your mind about wanting a special lap dance with one of my comments is one thing…

          But you really need to be more convincing when you start screaming NOoooo after getting a good look at my tramp stamp or I might just take advantage of you one of these days when you have had too much to drink.

          P.S. When you are ready for an an affirmative consent twirl I’ll give you twenty percent discount just because I like ya.

          https://m.youtube.com/watch?v=itq5iXz1hcg

  2. TRADERPROFIT

    Question: How do you stop a fleeing person to question him/her without likely having to tackle the person, and further how do you keep the person from fleeing again if you don’t cuff that person, at least temporarily? Ok, it’s an arrest. Alternatives?
    Scott, have you ever seen any defendant win on the issue that he was arrested without probable cause after running away from the police, merely because he was cuffed?

    As to the knife issue, all knives purchased from the Knife Channel need to be legislatively presumed illegal because:

    1. SHG Post author

      As to your question, how to make a cop’s life easier isn’t really my problem. Remember, there is no clause in the Constitution that says, “unless it makes a cop’s job harder, in which case, never mind.”

      That said, it’s not quite as big a deal as it would appear. If they chase and catch up, they get to ask their question. You see, aside from running, they have no crime for which to arrest, and (you and the cops call it fleeing; I call it exercising the right to be left alone) that means they only get to inquire. Don’t blame me, that’s the law. And yes, I have won on that issue.

      As to the video, let that be a lesson about buying cheap katanas on TV.

    2. Sgt. Schultz

      What’s interesting is that your implicit calculation is: eye contact plus flight = full blown arrest. For what? If we assume the cops didn’t find a knife or couldn’t make up some other offense, then they get a free take down, Freddie Gray gets taken down for fun, and everybody walks away.

      Some will see this as a good outcome, as Gray is alive and unarrested. Others will wonder whether people who aren’t engage in criminal conduct get to go about their life without being taken down by cops for no good reason. That’s the difference in perspective.

  3. L

    My read of the ordinance is that the knife is not illegal. The ordinance doesn’t just say “spring,” it says “automatic spring.” If any knife with a spring is illegal, that renders the word “automatic” surplusage. We must presume the body that passed the ordinance intended for each word to have effect. As I read it, when you press a button and a spring deploys a blade, that’s an automatic spring. When you start to deploy a blade yourself, and a spring helps you out with the rest of the work of deploying the blade, that’s a spring but not an automatic spring. I am not a knife expert nor a part of “knife culture,” but that’s just my read.

    I agree with you on the rest of your points, especially (a) Heien means these guys probably walk and (b) that’s a shame.

    1. David M.

      Please ignore this when it turns out to be stupid.

      I don’t understand why Heien would get them off the false imprisonment charge. Even if it were found that the cops made a reasonable mistake of law in believing Gray’s knife was illegal, they had no knowledge whatsoever of his knife when they arrested him.

      1. SHG Post author

        But what of their reasonable mistake of law that a guy who makes eye contact and runs must be guilty of something? Huh? Huh? Did you even think of that?

            1. David M.

              It’s true. I’m a Bavarian vulgarian. Lemme attempt that again.

              No true citizen would fear a cop!

    2. Noxx

      Excellent interpretation. This is how it is applied here in CA, where knife laws are comparatively restrictive, and attempt to define not only switchblades but “gravity knives”. We have pages dedicated to keeping people abreast of local knife laws and court decisions, and you are correct, the common “flipper” knife differs from a switchblade in that the blade is not under spring tensions waiting to be released, but must rather be cammed over manually to engage a spring assist.

      Predictably, knives here as elsewhere are often used as a pretext for a stop and search, and it is common to be threatened with arrest or have an “illegal knife!” Confiscated.

  4. Eric Rasmusen

    It sounds like close enough to a legitimate arrest to escape criminal charges for the police. That seems like the least of their worries, though. Even if it’s a legit arrest, they still violated the rules by not using the seatbelt, and someone still died as a result, even if it was a freak accident. The foreseeability of death or severe harm seems like the only real issue.

    1. SHG Post author

      It may be. It may not. An unlawful arrest may not be illegal enough to sustain criminal charges. But why devolve to the seatbelt, death, etc.? They’re separate issues, and have no bearing on the issue in this post. Each wrong deserves its own scrutiny, not to be dumped into the all’s well that ends well pile.

  5. Not Jim Ardis

    This is not entirely germane, and I’m sure I’ll get made fun of for it, but I wouldn’t feel right without saying it…

    the media has seized upon them and, in furtherance of their desired outcome, awarded the cops the win

    You’re being quite unfair to Justin. I know him personally (he lived here in Peoria, and broke the story about the twitter raid), and he is very much on the side of “we need to pay attention to all the wrong things cops do.” His body of work speaks to this, and is, in that sense, one of us.

    1. SHG Post author

      Even killer cops save the occasional kitten up a tree. That doesn’t mean they get a free killing. And this wasn’t just about Justin, though his was the most reprehensibly bad post about it.

      1. Patrick Maupin

        > Even killer cops save the occasional kitten up a tree.

        Well, yeah, they have to do something to make everybody feel better after they shoot the family dog that chased the feral cat. “Sorry about your dog — here’s a kitten as a replacement!”

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