This past Monday the office of Prosecutor Marilyn Mosby filed a motion in opposition to an earlier defense motion (oofah, lawyers) requesting that charges against six Baltimore police officers be dismissed, or alternatively, that Mosby recuse herself from the case.

We covered the defense motion for dismissal/recusal in detail in a previous post, here:  Freddie Gray Case: Detailed Analysis of Motion to Recuse Prosecutor.

Mosby’s motion in opposition (embedded at the bottom of this post) is remarkable for a number of reasons, most substantially for it’s epic levels of projection.

In the motion’s second sentence it claims that the defense motion is “born of desperation” and “the desire for publicity,” and in the third sentence that the defense motion is “spewing invective” and “casting aspersions,” ultimately concluding that the defense motion “bounces from one ridiculous allegation to another, like a pinball on a
machine far past ‘TILT.'”

Ironically, these are all characterizations that nicely describe Prosecutor Mosby’s high-profile public reading of dubious charges–including second-degree depraved-heart murder and manslaughter–specifically and her prosecution against the six officers generally.

We covered Mosby’s public statement here, Freddie Gray Cops Charges – Justice or Political Theater?, and her consequent refusal to respond to pointed questions about evidence supporting her allegations here, More Mosby: “Evidence Cannot Be Released Before Trial”.  Since then, Mosby’s office has gone even further, and is now attempting to shut up the defense by filing a motion to impose a gag order on them.

Delicious irony aside, there are two aspects of the opposition filed just two days ago that indicate once again that Mosby’s office simply doesn’t understand the law relevant to Freddie Gray’s arrest, and/or doesn’t wish the rest of us to understand it.

These aspects involve, of course, the alleged legality of Gray’s knife, and whether that knife was the legal basis for Gray’s arrest.

Remarkably, they manage to blunder on both issues in a single sentence on page seven of their motion:

Although the Application accurately points out that the knife was legal under Maryland law, it makes clear that Mr. Gray was arrested well before the arresting officers knew he possessed a knife.

(These claims are presented in abridged form in the headings below.)

“The knife was legal under Maryland law”

The blunder on the legality of Gray’s knife is particularly laughable, because it’s wrong almost certainly on the facts and most definitely on the law.

As previously noted by Legal Insurrection on May 2 (one day after Mosby’s public reading of charges) here, Freddie Gray’s Knife – Why is Prosecutor Claiming Unlawful Arrest?, and again on May 5 here, Confirmed – Freddie Gray’s Knife WAS Illegal (which reports that the Baltimore Police Department itself had determined the knife to be illegal), whether the knife was illegal under Maryland law is utterly irrelevant, because Freddie Gray was not arrested for a violation of Maryland law.

Rather, Gray was arrested for a violation of Baltimore City Code §59-22, as explicitly documented in the Statement of Charges prepared by one of the arresting officers immediately subsequent to Gray’s arrest:

typed complaint

Mosby’s motion in opposition was filed more than two weeks after she first publicly and mistakenly referenced Maryland law, rather than Baltimore City Code, in characterizing the legality of Gray’s knife, and yet they still can’t seem to get this simple matter right.

Color me shocked.

“Mr. Gray was arrested before the officers knew he possessed a knife.”

The second of Mosby’s blunders in her opposition motion is equally laughable in the context of what a competent prosecutor should know of the law, but perhaps a bit more subtle than the obvious jurisdictional sloppiness discussed above.

Mosby’s office claims in their opposition motion that the officers who arrested Gray did so before they were aware of his possession of the unlawful knife.

This is worthy of two observations:

First, if as Mosby’s office claims the knife was legal under relevant law (which we already know to be untrue), then the timing of when the knife was spotted would be irrelevant under the facts of this case.  Thus, that Mosby’s office raises this issue is an implicit concession on their part that Gray’s possession of the knife was, in fact, illegal under the relevant law. (h/t @novaculus)

Second, it seems that Mosby’s office–as shocking as this is, considering they are State prosecutors–does not understand the difference between a police “stop” and an actual “arrest.”

We covered the distinction between a “stop,” usually referred to as a “Terry stop” or a “stop-and-frisk,” and an arrest in considerable detail here, Was Freddie Gray’s Arrest Lawful? Almost Certainly, way back on May 1, the same day Mosby publicly announced her charges against the officers.  For all the gritty details, click on over–but be sure to come back.

In brief, however, a lawful “Terry stop” can be made based upon reasonable suspicion, meaning a rational and articulable perception that an individual is acting suspiciously.  The precipitous flight of Gray, a known street-level drug dealer, upon spotting the police officers patrolling that high-crime neighborhood is more than sufficient to constitute reasonable suspicion.

It is legal during a “Terry stop” to handcuff the person, if reasonably necessary for purposes of safety.  In Gray’s case, there was a history of arrests for crimes of violence in addition to convictions for drug dealing, thus providing a reasonable basis for handcuffing.

Both the stop and the handcuffing thus constitute a “stop” and not an arrest.  The actual arrest did not come until later, after police spotted the illegal knife.

Once Gray was stopped, it was legally permissible to do a superficial examination for weapons.  Usually this takes the form of a “frisk” of the person’s clothes, but in this case visual observation confirmed the presence of a knife clipped in his pocket.

Thus we have the perfectly lawful sequence of events:

(1) Gray, a known street-level drug dealer in a high-crime neighborhood flees precipitously upon observation of, and by, patrolling officers, creating reasonable suspicion.

(2) Based upon this reasonable suspicion the officers initiate a lawful “Terry stop.”

(3) During the “Terry stop” the officers handcuff Gray and conduct a visual and (I expect) physical “pat-down” search for weapons, both for the permitted reasons of public and officer safety.

(4) Visual observation reveals Gray’s possession of the knife clipped to his pocket.

(5) The officers determine that possession of the knife is unlawful under Baltimore City Code §59-22.

(6) This unlawful possession establishes the probable cause necessary for Gray’s actual arrest.

This sequence of events is supported explicitly by the arresting officer’s handwritten Application for Statement of Charges, completed immediately following Gray’s arrest and well before any of the public hubbub:

. . . Gray fled unprovoked upon noticing police presence. The defendant [Gray] was apprehended . . . after a brief foot chase. This officer noticed a knife clipped to the inside of his front right pants pocket. The defendant was arrested . . .

Freddy Gray police complaint 2nstjt5 small

Indeed, even Mosby’s own Application for Statement of Charges filed against each of the officers fails to allege that an arrest was made prior to the discovery of the knife.  Each of the six Applications prepared by Mosby’s office depicts the same narrative of events surrounding Gray’s stop and subsequent arrest:

. . . Lieutenant Brian Rice . . . while on bike patrol with Officers Garrett Miller and Edward Nero, made eye contact with [Gray]. Having made eye contact, Mr. Gray subsequently ran from Lt. Rice.

This is the establishment of the reasonable suspicion necessary for the subsequent “Terry stop.” Totally lawful, and no arrest yet made.

Lt. Rice then dispatched over a departmental radio that he was involved in a foot pursuit, at which time bike patrol Officers Miller and Nero also began to pursue Mr. Gray.

This is the initiation of efforts to execute a “Terry stop.” Totally lawful, and no arrest yet made.

Having come in contact with the pursuing officers, Mr. Gray surrendered to Officers Miler and Nero . . .

This is the officers successfully executing a “Terry stop” on Gray. Totally lawful, and no arrest yet made.

(As an aside, “Having come in contact with” is a delightfully understated way of saying “Having been tackled to the ground by”.)

Officers Miller and Nero then handcuffed Mr. Gray and moved him to location a few feet away from his surrendering location.  . . . .

This is the officers lawfully restraining Gray and otherwise securing the safety of the scene. Totally lawful, and no arrest yet made.

Officers Miller and Nero than placed Mr. Gray in a seated position and subsequently found a knife clipped to the inside of his pants pocket.

This is the officers observing the unlawful knife clipped to the inside of Gray’s pants pocket, and thus realizing a lawful basis for initiating their lawful arrest of Gray for violation of Baltimore City Code §59-22.

All the events occurring prior to the officers observing the knife were pre-arrest, and therefore required no probable cause, but merely the much lesser standard reasonable suspicion.

All of that narrative, keep in mind, is taken from documents produced by Mosby’s own office and it utterly debunks their claim that “Mr. Gray was arrested well before the arresting officers knew he possessed a knife.”

Mosby’s Motion in Opposition to Defense Motion for Dismissal/Recusal

As promised, here’s the motion filed this past Monday in opposition to the motion for dismissal/recusal:

–-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 (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.


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