A Hypothetical Scenario In Which Gray’s Death Does NOT Involve Police Misconduct.
One of the most remarkable aspects of the death of Freddie Gray is how little is publicly known about the physiological cause of death, and the lack of evidence behind all the speculation.
The autopsy will not be released, according to police, but will be handed over to state prosecutors. There is a report in The Washington Post that Gray tried to injure himself in the police van, but that is far from certain at this point.
This naturally complicates reasoned analysis of the events, and provides fertile ground for false, politically-motivated narratives that lead to violence, rioting, looting and arson.
Let’s take a step back, examine the claims and narratives that have been promulgated to date, and consider whether there exists even a hypothetical scenario in which the death of Freddie Gray is the result of events not involving police malice.
Assumed for Purposes of Discussion: Gray’s Arrest Was Lawful
There is no dispute that Freddie Gray was arrested on the street by the Baltimore police department. Some claim that the arrest was committed without adequate probable cause. This is, of course, possible.
Given Gray’s extensive criminal record, familiarity to local law enforcement, objectively suspicious behavior—-flight upon spotting the patrol officers—-and a police claim that he was in possession of an illegal (in Maryland), spring-assisted opening knife, it’s at least equally possible that the police had probable cause.
(h/t excellent WeaponsMan.com blog for the criminal complaint above)
As an aside, I find it noteworthy that when William Murphy, the Gray family lawyer, addresses the issue of the knife he does so only with respect to its size—which is not the basis of its claimed illegality—rather than its mechanism of function, which is the basis of its claimed illegality.
In any case, whether the arrest was made with sufficient probable cause is not central to understanding the cause of Gray’s death. For purposes of this post, I’ll assume the arrest was lawfully made in order to simplify the narrative.
The Nature of Gray’s Injuries
The information available about the nature of Gray’s injuries falls into one of two categories.
(1) Information from a credible medical source, such as an examining physician, or which can be reasonably inferred from either video or multiple sources.
(2) Information that comes solely from Attorney Murphy or any immediate member of Gray’s family.
Most of us will recall the inaccurate “forensic” information shared with the public by Brown family lawyers and others in the immediate aftermath of Michael Brown’s shooting by police officer Darren Wilson—for example, the claims that Brown had been shot in the back, had been shot while kneeling, had been shot with his arms raised in surrender, and so forth.
There’s no reason to expect that Murphy’s communications in this case are any more accurate or less intended to drive a desired narrative. For this I discount entirely any information for which Murphy, or one of his agents, is the sole source.
Importantly, this includes the claim that Gray suffered a crushed larynx, as Murphy is the only source of this claim . This is particularly relevant because while I can imagine scenarios in which Gray’s death was not the result of criminal malice by the police, these scenarios become far less likely if a crushed larynx is in fact among the injuries suffered.
For the same reasons I discount claims that Gray’s spinal cord was 80% severed.
Spinal Cord Damage Is Often Ongoing Hours After Initial Trauma
That leaves us with the medically confirmed injuries Gray suffered to his vertebrae. These certainly appear to be the proximate cause of Gray’s death. Gray’s death was not sudden, but took place days after his arrest.
It also appears likely that the physiological injuries were also not sudden, but took place over some hours. To see why this is so, one must understand the nature of spinal injuries.
As with any traumatic injury, spinal injuries are often immediately followed by swelling, a predictable inflammatory reaction that is the first step of healing. The difference, however, is that injuries to the spinal cord and brain live within the tight confines of the spinal vertebrae and the skull, respectively.
As a result, spinal cord damage commonly comes in two stages—first, the initial physical traumatic injury. Second, and often by far the more harmful, the damage that results when the injured, swelling nervous tissue crushes itself within the unyielding vertebrae.
It is in order to prevent this second, pressure-induced type of damage that spinal injury patients are often given drugs intended to reduce or prevent swelling.
A Scenario In Which Gray’s Death Did Not Involve Police Criminality
The most common media narrative, and the claimed political motivation for the Baltimore rioting, is that Freddie Gray was alive and well when arrested and placed in the police van; then, within 30 minutes of that arrest and while exclusively in police custody, he suffered severe trauma to his vertebrae, his spine was 80% severed, and his larynx was crushed.
This narrative infers that the police must have subjected Gray to auto-crash levels of force while he was in the van. The police, however, report that they subjected Gray to no force after he was secured in the van.
Is there a hypothetical scenario under which Gray’s injuries are consistent with the police having acted appropriately, or at least without criminal malice?
I suggest that the presence of a crushed larynx takes any innocent explanation off the table. Gray can be heard crying out in pain while being arrested and placed in the van, and this would suggest his larynx was uncrushed at that time. I find myself unable to imagine a scenario consistent with police innocence that results in Gray suffering a crushed larynx while handcuffed inside the police van (absent a vehicular accident, which is not claimed by anyone.)
That leaves us with the injury to Gray’s vertebrae, which has been confirmed by medical examination following Gray’s arrest.
Available video of Gray’s arrest appears to begin from the point at which he was handcuffed. I have seen no video of the nature of Gray’s arrest prior to that point.
Nevertheless, what can be seen on the video suggests that considerable force may have been used. There are several police officers involved in the physical, hands-on part of the arrest, and the officers’ bicycles are strewn on the ground as if hasty action was taken.
When a suspect subject to lawful arrest resists the police officers, those officers may lawfully escalate the force they use to compel the suspect to comply.
A particularly effective way of controlling a suspect, especially if several officers is on hand, is for one of those officers to seize physical control of the suspect’s head and neck. Where the suspect’s head and neck go, the body will follow—and generally the goal is to get the suspect on the ground, usually face down.
Once brought to the ground the suspect is often kept there by a police officer placing his body weight, often specifically focused on the officer’s knee, onto the suspect’s upper spine or even neck. The assisting officers can then seize control of the suspect’s hands and secure them with cuffs. This scenario is consistent with facts as reported by the Washington Post:
Video shot by several bystanders has fueled the rage in West Baltimore. It shows two officers on top of Gray, their knees in his back, and then dragging his seemingly limp body to the van as he cried out.
It requires no great imagination to see how this kind of application of force, and particularly a large police officer applying his body weight via his knee to a prone suspect, could unintentionally result in severe damage to the vertebrae.
If that damage occurred, we’d expect to observe the typical two-stage process of any traumatic spinal injury.
First, there would be the physiological consequences of the immediate trauma. Injury to the neck or upper spine could be expected to result in cause weakness and dysfunction almost anywhere lower on the person’s body—including their legs and respiratory system.
This is consistent with the video evidence that Freddie Gray appeared to be having trouble both walking and breathing after he was secured and while he was placed in the van.
Second, and over a period of many minutes, perhaps even hours, we would begin to see the effects of the spinal cord’s swelling within the vertebrae. This damage would be progressive and perhaps not particularly obvious to the type of police officer whose assigned duty is the driving of a van.
Notably, this scenario is also consistent with news reports just yesterday that a fellow arrestee in the van, one who could hear but not see Gray, believed based on what he heard that Gray was trying to injure himself. A common consequence of spinal cord injury is spasm, tremors, and convulsions, of increasing severity as the swelling progresses (until a certain threshold of damage has been achieved). Such convulsions within the van might well have sounded to this witness as if Gray were throwing himself around the vehicle with the intent to self-injure.
Importantly, the damage caused during this second stage would require no post-arrest application of force by the police, consistent with their claims that they used no further force upon Gray after he had been secured and placed in the van.
Remaining Room for Police Culpability
The above scenario, even if true, does not entirely clear the police of all possibility of culpability.
Even if the arrest itself was lawful and based on adequate probable cause, the degree of force used to effect that arrest was excessive under the circumstances. If so, the police would be responsible for that excessive force and the consequences of it.
At worst, however, that culpability would be in the form a criminally negligent homicide, essentially a type of manslaughter. This would require no malice on the part of the officers involved, simply criminally reckless judgment and conduct.
If the threshold of criminal negligence cannot be met, we would be left with merely civil negligence. In that case the individual officers involved would almost certainly be protected under qualified immunity, albeit the department could well be liable (civil law is not my area of expertise).
Similarly, the police may have been negligent, perhaps even criminally negligent, in not getting Gray medical assistance sooner then they did. We lack sufficient information, and I lack sufficient medical knowledge, to know whether obtaining medical assistance 15 or 20 minutes sooner would have made any difference to Gray’s outcome, but I suppose that argument can be made with a straight face.
Most Baffling of All: The Ongoing Silence of Baltimore Officials
Even amidst all the uncertainty and speculation addressed above, what’s most baffling this entire series of events is the ongoing silence of Baltimore officials.
In some cases this silence has been literal, as when Mayor Stephanie Rawlings-Blake apparently went so incommunicado during the riots that even the Governor of Maryland was unable to reach her to offer National Guard assistance.
In other cases this silence has been substantive, as when Mayor Rawlings-Blake and Police Commissioner Anthony Batts spewed nonsensical platitudes at lengthy press conferences.
In both cases, Baltimore officials failed to answer the fundamental question at issue:
What the hell actually happened to Freddie Gray?
And that question can only be answered by Baltimore officials quickly and transparently gathering and disseminating the facts of the case.
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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.DONATE
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