A new talking point claiming that Freddie Gray’s original arrest was unlawful has arisen, propelled by the claim yesterday by Prosecutor Mosby that the knife seized from Gray by police was legal to possess in Maryland.

As reported by the New York Times:

Ms. Mosby faulted the police conduct at every turn. The officers who arrested him “failed to establish probable cause for Mr. Gray’s arrest, as no crime had been committed,” she said, describing the arrest as illegal. Officers accused him of possession of a switchblade, but Ms. Mosby said, “The knife was not a switchblade and is lawful under Maryland law.

These statements are remarkably insensible coming from someone who has attained the position of state prosecutor.

Mosby Issue #1: Spring-Assisted Knives Almost Certainly ARE Illegal Under MD Law

First, it raises a question of whether Mosby is simply facially incorrect in claiming that Gray’s knife is legal.  It has been described in news reports as “spring-assisted.” If that description is explicitly false and there was no spring assist mechanism, then it is likely that Gray’s knife was not unlawful.

If, however, it was spring-assisted then it certainly seems it would be unlawful under Maryland law.

The Criminal Code of Maryland,  §4-105, defines a “switchblade knife” as:

(1) a knife or penknife having a blade that opens automatically by hand pressure applied to a button, spring, or other device in the handle of the knife.

The way a spring-assisted knife mechanism works is that a spring in the handle of the knife takes over the opening of the blade after the blade has been opened a small amount by pressure applied to the blade by the users fingers. Thus, the statutory definition would arguablly apply to spring-assisted knives.

Clearly, if a spring-assisted knife falls within the statutory prohibition, and it has been widely reported Gray’s knife was spring-assisted, possession of this unlawful knife would provide probable cause for Gray’s arrest.

It is notable that Mosby has yet to address this issue of the precise mechanism of Gray’s knife.  This is an odd oversight, given that this issue would likely be determinative of her claim that the knife was not unlawful.

For those unclear on the mechanistic differences an assisted-opening knife and a switchblade, the video below may be informative (the first knife is the assisted-opening, the second the switchblade):

Mosby Issue #2: Jurisdictional Sloppiness

Second, Mosby’s statement reflects remarkable jurisdictional sloppiness, especially coming from a state prosecutor who works primarily in a subsidiary jurisdiction of that state.  As noted above, Mosby is quoted as explicitly stating that:

The knife was not a switchblade and is lawful under Maryland law. (emphasis added)

The description of the charge brought against Gray explicitly provides that he

did unlawfully carry, possess and sell a knife commonly known as a switch blade knife, with an automatic spring or other device for opening and/or closing the blade within the limits of Baltimore City. (emphasis added)

freddie_gray_complaint 600

It is notable that it is not at all uncommon, particularly in “blue” cities, for cities to have substantially more restrictive weapons laws than do surrounding urban areas.  Anyone who has ever driven through the state of Maryland will have seen that there is a dramatic difference in social culture between inner-city Baltimore and the bucolic Maryland countryside.

Indeed, the City of Baltimore has adopted as an ordinance its City Code §59-22, which states in relevant part:

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. (emphasis added)

Thus (and again assuming Gray’s knife was spring-assisted, as widely reported), even if Mosby is correct (unlikely) that the knife was legal under Maryland state law, it would still arguably have been illegal under Baltimore code §59-22.

Mosby Issue #3: Weapons Possession Usually Illegal When on Probation

Third, it raises questions about whether the knife was illegal per se, or whether it was the possession of the knife by Freddie Gray that was illegal.  Gray was a convicted felon, and an examination of his criminal record suggests it highly likely that he was on probation when he was arrested and found with the concealed knife. (Anybody with definitive information on Gray’s probation status, please contact me directly.)

In my experience, it is an invariable condition of probation that possession of a concealed weapon of any type is prohibited.

Note that the explicit language in the Statement of Charges reads that Freddie Gray

did unlawfully carry, possess and sell a knife commonly known as a switch blade knife, with an automatic spring or other device for opening and/or closing the blade within the limits of Baltimore City. (emphasis added)

Thus if Gray was on probation, and his probation prohibited his possession of a concealed weapon, this unlawful possession would provide adequate probable cause for Gray’s arrest.

Mosby Issue #4: Misunderstanding How Probable Cause Actually Works

Mosby’s asserts that the police failed to establish probable cause for Gray’s arrest on the basis that she later determined Gray’s knife (the basis for the arrest) to have been legal.  As reported by the New York Times, Mosby claims that the arresting officers:

failed to establish probable cause for Mr. Gray’s arrest, as no crime had been committed.

This is simply not how probable cause works in the context of an arrest .

Here’s what probable cause does not mean: That the officer making an arrest has determined that the facts on which the arrest is founded are true to an absolute certainty, and that the arrest becomes illegal should these reasonably believed “facts” later turn out to be untrue or mistaken.

This should be self-evident by the inclusion of the word “probable” in the phrase “probable cause.”

Arrests often go uncharged, and charges are often dismissed, and defendants are even acquitted at trial, often based upon a later conclusion that the underlying facts which suggested a crime are untrue or mistaken.  None of these outcomes makes the initial arrest illegal.

When an officer makes an arrest based on an articulable statement of probable cause, that arrest becomes illegal only if the officer knew or reasonably should have known that no crime had, in fact, been committed.

In short, police are entitled to make reasonable mistakes, and such a reasonable mistake does not make the arrest illegal.

Such a mistake may, of course, make further prosecution of the offense impractical or outright unjust.  But that’s a completely different matter than whether an arrest was unlawful.

In the Gray instance, the arresting officer may in fact have been mistaken about whether a spring-assisted knife falls within the statutory prohibition on possession of a switchblade, or on whether Gray’s possession of the knife while (presumably) on probation was an offense subject to arrest.

But unless he actually knew or reasonably should have known either of those possibilities to not be the case, probable cause for the arrest existed, and the arrest itself was not a crime.

Again, if the officer was mistaken the arrest may be defective for purposes of further prosecution.  But this does not mean that an officer is limited to making an arrest only in circumstances where criminal conduct is a legal and moral certainty.

A society in which this were required, or permitted would be, I expect,  a society that most Americans would find an unpleasant place to live.

Thus, even if it turns out that the knife was legal and that Freddie Gray were legally permitted to possess the knife under the circumstances, if the police officer reasonably believed that either of these were offenses subject to arrest, and neither knew or should have known that this belief was incorrect at the time of the arrest, then there existed probable cause for the arrest, and the arrest itself is entirely lawful from the context of that officer’s conduct.

The apparent political theater in the announcement of the charges is getting growing criticism, reminiscent of what accompanied the George Zimmerman over-charging and politicized prosecution. Alan Dershowitz on NewsMax:

–-Andrew, @LawSelfDefense


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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.