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.