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.