Freddie Gray’s Bad Arrest And Still Dead

Maryland State Attorney Marilyn Mosby seems to have acted with extraordinary speed in charging six Baltimore cops with the murder of Freddie Gray, but then, it’s only due to the comparison to the lengthy delays we’ve come to expect in every other case. These are the cops charged: Officer Caesar Goodson, Lt. Brian Rice, Sgt. Alicia White, Officer Garrett Miller, Officer William Porter, and Officer Edward Nero.

Five months after the death of Tamir Rice, we’re still awaiting the end of the “investigation,” even though there was nothing to investigate.  In contrast to killers without shields, it’s no big deal.  But then, they’re no big deal, and have no union president to threaten the prosecutor’s husband.

In addition to charges of murder, there is a charge that will evoke a deeper sadness, false imprisonment.  What distinguishes this charge is that it reflects the allegation that the arrest was baseless. Everything that followed, including Freddie Gray’s death, shouldn’t have happened. But he’s dead, and false imprisonment won’t change that.

In a Daily News op-ed, Elie Mystal emphasizes the significance of this charge:

So we should ask if the confrontation — the attempt by the police to detain a citizen — was necessary or legal in the first place. Police officers cannot apprehend for just any reason. Looking at them funny is not a valid reason for an arrest. Talking back to them is a not a valid reason for an arrest.

And among all of the violations that do result in probable cause for an arrest, we should ask if it’s worth risking violent confrontation over those violations.

Any interaction between cop and citizen has the potential to result in death. When the arrest was unlawful, the death is reduced to an absurdity.

At Legal Insurrection, Andrew Branca provides his “legal analysis” of why Gray’s arrest was “certainly” lawful. He’s a Massachusetts lawyer who bills himself as “the foremost expert in U.S. self defense law across all 50 states,” which is quite a claim.  His humility aside, his analysis is “just freaking gibberish.”

While he correctly notes that the scenario somehow involves Terry v. Ohio when it comes to a stop without probable cause, making eye contact with a cop has yet to be criminalized per se.  Whether Freddie Gray’s decision to run constitutes flight or basic survival skills on the streets of Baltimore is a matter of debate, but the most it provides the police is a basis for reasonable suspicion, based upon a bizarre Supreme Court decision, Illinois v. Wardlow, where Chief Justice Rehnquist offered this bit of sophistry:

Such a holding is entirely consistent with our decision in Florida v. Royer, 460 U.S. 491(1983), where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. Id., at 498. And any “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” Florida v. Bostick, 501 U.S. 429, 437 (1991). But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.

Whatever. it’s the law. But it gives rise to a Terry stop, an opportunity to make further inquiry to ascertain whether there is probable cause to arrest. It is not the basis for an arrest.  So upon catching up with Freddie Gray, whose only “crime” was making eye contact with a cop, and, having realized the error of his eyes, deciding to exit, stage left, they took him down.

8:39:12 a.m. Initial Contact Lt. Brian W. Rice and Officers Edward M. Nero and Garrett E. Miller were on bike patrol near the corner of North Avenue and Mount Street. Lieutenant Rice made eye contact with Mr. Gray, who ran away.

8:39:52 a.m. “I Got Him” Mr. Gray surrendered to Officers Miller and Nero in the 1700 block of Presbury Street. “I got him,” one officer stated, according to Jerry Rodriguez, the Police Department’s deputy commissioner.

8:40 a.m. Ms. Mosby said the officers handcuffed Mr. Gray and placed him face down.

That, no matter what Branca claims, is an arrest, not a Terry stop. A full blown, full fledged, 110% American arrest. For making eye contact with a cop. For running. For being in a “high crime neighborhood,” or what black people call their neighborhood, and for being Freddie Gray.

While Branca correctly notes that there is a distinction under law between a Terry stop and an arrest, he proceeds down the rabbit hole of self-serving fantasy.

Freddie Gray had an extensive criminal record, and this was well known to police officers in the community. 

First, this isn’t fact, but a rationalization that popped into Branca’s head out of nowhere.  While Gray had a criminal record, it was pedestrian, much like all the other young black men in the hood.  Hardly “extensive,” a subjective description used to persuade the ignorant.  But worse is the claim that it was “well known” to cops, which is utterly baseless speculation.

In addition, the neighborhood where the arrest occurred is known more generally for being a high-crime area, and so the police would be expected to be particularly attuned for indications of criminal conduct.

This is a given in poor black neighborhoods, and applies to every person who has the great misfortune of being poor, black* and living there.  It does not, as Branca suggests, create a Constitution-free zone.

In this context the police observe well-known criminal Gray acting in a manner that they perceive as noteworthy. The police begin to approach Gray, a form of police conduct that requires no particular legal justification at least until an actual interaction has begun. Observing the police approach, Gray substantially increases the suspiciousness of his conduct by fleeing the officers.

The only “fact” is that there was eye contact, not that the “police begin to approach Gray.” Whether he was fleeing isn’t entirely clear, but it appears to be uncontroverted (because Freddie Gray can’t speak for himself, because he’s dead) that he took off.

At this point the Constitutional grounds for a Terry stop have clearly been met.

After the dips in the fantasy pool, Branca arrives at the necessary point of approach, a Terry stop.  He didn’t need to manufacture a full-blown fantasy, as the mere allegation of flight plus bad neighborhood would have sufficed. The threshold of “reasonable suspicion” is negligible, and the cops had the authority to “briefly detain” Freddie Gray to make further inquiry to ascertain whether “criminal activity was afoot.”

But what happened was no Terry stop. It was a full blown seizure, a forcible take down, cuffs, face to the ground. There was no inquiry. Just force. And there was no probable cause for arrest. Nonetheless, Branca then does a swan dive back into the rabbit hole:

One important facet of a Terry stop is that it allows the police to conduct a surface frisk of the suspect for purposes of safety.

Not quite. When the police have an articulable basis to believe that there is a threat to their safety, they can conduct a pat down.  It’s not a gimme, that all Terry stops allow the cops a free frisk.  Yet, they frisked without any justification whatsoever.

Upon making the Terry stop, the police report that they frisked Gray, and felt the presence of a folding knife in his pocket.

Upon securing the pocket knife, they observed that it was of a type unlawful to possess in Baltimore, and thus contraband.

Except it wasn’t “of a type unlawful to possess.” The police claimed it was a switchblade, which is indeed unlawful, except it was a spring-assisted knife of the sort sold in Williams-Sonoma, readily available on Amazon, and perfectly lawful everywhere, Maryland included.

Perhaps the police were so clueless as to not comprehend the distinction between a perfectly lawful knife and an illegal one, owing to the hysteria of 1950s street gangs, but it’s unlikely. The cops see knives all the time, and know what’s what. That “experts” in self-defense like Branca can’t distinguish a lawful knife from an illegal one is irrelevant, as he doesn’t get to make arrests. Cops tend to know better.

And so this perfectly lawful knife became the excuse for Freddie Gray’s arrest. In itself, this isn’t unusual.  False justifications for taking a black kid off the streets as payback for making eye contact are hardly special, and under normal circumstances, it would result in a quick plea to get out of jail and comprise the next bit of his “extensive criminal record.”  He could, of course, challenge the arrest for a lawful knife, but that would be a burden.  Most of the time, it’s just a quick in and out, and back to avoiding making eye contact.

Except Freddie Gray never it to arraignment because his spine was mostly severed, his larynx crushed, and then he died.

None of this, of course, settles the arguably more central issue of how it came to be that Freddie Gray died in police custody.

It does, however, suggest that it’s quite likely the police had sufficient legal grounds upon which to stop, frisk, and arrest Gray.

In a rational world, making eye contact with a cop wouldn’t be cause for anything more than a nod and a wave. In Freddie Gray’s world, it was a good reason to go the other way.  Because of inane law, this is sufficient to give rise to reasonable suspicion, which suffices for a Terry stop to inquire. But not engage in a forcible take down, to frisk, and to justify it on a perfectly lawful knife.

And yes, none of this explains how this bad arrest resulted in Freddie Gray’s death.  But it more than suffices to make clear that he never should have been arrested in the first place. Never.

* Lest anyone get the wrong impression, the misfortune isn’t being black. It isn’t being poor or living there either. Rather, it’s being all these things in a nation where the police consider you subhuman because of it, and unworthy of being treated with the respect and dignity that all people deserve regardless of their status, color or neighborhood.

24 thoughts on “Freddie Gray’s Bad Arrest And Still Dead

  1. Piedmont

    Nero and Miller aren’t charged with the killing of Gray.

    Nonetheless, they each face a quarter-million dollar bond.

    1. SHG Post author

      I’ve corrected, and note that of all the concerns raised by this post, this is what most interests you. Will you similarly take issue with high bail for other defendants, who happen not to be cops, who are not charged with murder? I suspect not.

      1. Piedmont

        Silly me. I originally was going to add “Agree.” before my post, but deleted it because I thought it’d be superfluous and not add to the discussion.

        Or, as a prosecutor, do I have a higher duty to make it known when I agree with something a defense attorney says?

      2. Ross

        Darn, SHG, that Twitter link was depressing as hell – the number of folks who seem to love high bail as a form of punishment is appalling. It is absurd that a rioter’s bail be set that high, and the bail for the accused officers is probably high as well. Am I being naive in thinking that the goal of bail is to ensure the defendant shows up for trial? That’s a rhetorical question.

  2. Scott Morrell

    I could not agree more with this post. I did not know the difference between a Terry stop and an arrest until reading this post. It seems like a full blown arrest to me.

    The problem I have with a Terry stop is that it is so subjective that prejudice most come into some cops minds. However, there is really no way to prove it, which makes it problematic.

    I do have a question regarding the false imprisonment charge. If a cops sees a person with a Ziplock bag of white powder walking down the street, then arrests him, and then finds out in the lab that it was an energy drink powder and not cocaine, would that be false imprisonment? If so, wouldn’t that deter police from making arrest in the future for fear of prosecution?

    1. Marc R

      Most officers convert a Terry Stop if they’re suspicious into a RAWOV where they can then legally search pursuant to an arrest. If they find nothing and drop the contempt of cop then you go home.

      If they locate contraband then the report articulates how “upon attempting the pat down, the suspect indicated non verbal attack cues; tensed neck veins, clenched fists, dilated pupils, as he was clearly and imminently going to evade my over the clothes cursory weapons search…I then placed him in handcuffs and secured him in the back of my vehicle for his own safety as his actions, based on training and experience, were a danger to himself. Post-consent from the suspect, we located 3 separate bags of marijuana where each exceeded 20 grams and field tested positive for THC. I advised the suspect he was being charged with 3 separate counts of sale of marijuana over 20g, resisting without violence. Post Miranda, the suspect advised he has a binder in the center counsel containing phone numbers of abbreviations of people the suspect sold to, typical orders and prices, and balances for any retail level sales fronted products.”

      1. Scott Morrell

        Thanks for the general explanation.

        More specifically, since I am a layperson in law and policing, can a police officer simply look at a person walking down a street holding a bag of powder, arrest the person, bring the bag in for testing for narcotics, and if it comes back negative be charged with false imprisonment?

        1. SHG Post author

          No, but that’s not what this post is about, and this is a free legal Q&A blog. In other words, you can seek an answer to your question. Just not here.

    2. JohnC

      Depends: There’s no per se requirement to field test, so was he walking out of a known coke den, or out of the gym? And, most importantly — was he behaving furtively? Meh, doesn’t matter, since he dropped it in the ground when the officer approached. In any event, it’s not a great comparison: I dimly recall a few §1983 cases out of the Fourth holding “if it folds, it’s not a switchblade” = clearly established under Md. law. Not a lot of grey to work with.

        1. SHG Post author

          I have no clue what he’s talking about either. Folding and switchblades are completely unrelated. Switchblades fold.

          1. Marc R

            I guess he’s saying folders and switchblades both fold therefore they’re legally the same. It leaves out the spring-loaded characteristic that separates stilettos and switchblades from other lives you can unfold with one hand. In any event, screwdrivers aren’t illegal weapons but officers are justifying shooting one they believe is carrying one in a risky or intentionally dangerous manner.

            1. SHG Post author

              Switchblades are opened entirely by the force of a spring. Press a button, and the spring opens the blade. Spring-assisted knives require a person to push on a piece of the blade toward the opening position, with a spring to assist the pushing action to open the blade.

              Maybe it’s easiest to think of it as power steering. It still requires the driver’s physical action, but adds ease of performing the act by mechanical assistance. Both have a spring-loaded characteristic, but one opens entirely by spring while the other merely uses the spring to make the human touch easier.

            2. Not Jim Ardis

              To be more precise, the difference between a “normal” folding knife (the the kind our fathers all owned) or a normal one-handed lock-back and non-power-steering (you are putting all the effort into the blade moving), spring-assisted and power steering (you put in some force, but other things help you), and switchblades and cars that steer themselves (you tell it to do something, and then ALL the force is applied by mechanics).

            3. Jack

              There are two types of switchblades – side opening and out the front. They are both switchblades because to open them, you simply press a button and the spring either swings the knife open, or ejects it out the front. The key feature being you press a button and they open automatically.

              Spring assisted is just as SHG said. Everywhere I’ve ever lived nearly every guy has one clipped to their jeans pocket just like I do now. Cops see them literally dozens of times per day. There is no excuse for mixing them up at all.

              Not to mention getting your hands on a true switchblade is really, really hard to do – they don’t really make “cheap” switchblades and because of this, vendors require proof of being an LEO or proof of your disability (since you can legally carry one if you are missing an arm in a lot of states) before selling you one. Getting a gun is far easier than getting a real switchblade on the street (or anywhere).

            4. SHG Post author

              My son has always had a fascination with blades, and has taught me a lot about knives that I otherwise didn’t know. I gave him his first knife (a Buck 110) when he was 13, as is my fatherly duty to pass it on to the next generation. Hopefully, it won’t make his son a criminal.

  3. Dean Boland

    I can tell you as a Cleveland Ohio resident, that the local media has largely left the Tamir Rice case behind. There are no rallies, no protests, no daily calls for justice, etc. The local media is simply waiting around for some future announcement on prosecution or no of the officers involved.

    1. SHG Post author

      So if the media has left it behind, why haven’t the Cleveland criminal defense lawyers picked it up and run with it? Why haven’t the lawyers pushed the media, pushed the DA, pushed the issue?

      It’s not somebody else’s job.

      1. Dean Boland

        That’s a good question. However, the Rice family initially selected a local lawyer (cannot remember his name) and then lawyers from Florida, those who represent the family of Michael Brown in Ferguson and the kid that Zimmerman shot in Florida, came in and tookover the Rice family’s representation. They are obviously not connected into the defense attorney groups in Cleveland. Also, here in Cleveland, there are considerable numbers of minorities in the police department, prosecutors offices (the woman who hired me as a prosecutor in 1996 was Stephanie Tubbs Jones, the first black and first female Cuyahoga County Prosecutor). There are many black county judges, the city of Cleveland Mayor is black and has been re-elected several times. Perhaps the divisions between the “white police” and “black citizenry” being mistreated is not as sharp given that diversity.

  4. Shane

    I disagree with the “Full Blown Arrest” analysis. There is plenty of case law that states that merely handcuffing someone does not convert the Terry stop into an arrest, particularly when the suspect has shown a propensity to flee. The police contend that the knife was not legal under Baltimore Municipal Code and was concealed. There are a number of cases in Maryland that also indicate that whether or not the knife qualifies as a “penknife” or a spring blade knife is a jury question. Since “switchblade” has no legal definition in Maryland, and “penknife” in only defined by case precedent and poorly defined in those cases, it is hard to claim that the police had absolutely no probable to arrest Mr. Gray, particularly if the knife was of a type that could be opened with one hand or “the flick of the wrist” to quote a Maryland case. None of this goes to the issue of how he was injured and whether that injury rises to criminal behavior. Obviously, if the police intentionally injured him, they are criminally liable. At what point does mere negligence arise to the level of criminal behavior? A nine day old departmental directive to seatbelt subjects in the paddy wagon, does failure to do so rise to the level of criminal negligence? I guess we’ll find out, but the initial contact and arrest is a pretty low threshold and certainly appears to have been met here. So I think charging the two arresting officers with a crime for false arrest is ridiculous.

    1. SHG Post author

      That’s the defense they’re promoting, but it doesn’t quite wash. They didn’t just cuff. They physically took Gray down, cuffed then searched. No inquiry, just a take down. That’s as full blown as an arrest gets, not a Terry stop.

      As to the charge, it appears from the write-up that the description of the knife is accurate (“spring assisted, one hand operating knife”), although the local ordinance doesn’t appear nearly as confusing as suggested:

      § 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.

      To the extent there is ambiguity in the poorly written ordinance, the Rule of Lenity resolves that in Gray’s favor. And the ordinance expressly states that it applies to switchblades, which is generally good indication that it applies to switchblades. If it was to apply to all knives with springs, nothing precluded the ord from saying so, yet it expressly prohibits “swithblades,” which this knife was not.

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