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Was Freddie Gray’s Arrest Lawful? Almost Certainly

Was Freddie Gray’s Arrest Lawful? Almost Certainly

Clarifying the Constitutional thresholds for a Terry stop versus an actual arrest

There appears to be much rending of garments and gnashing of teeth over the claim that Freddie Gray’s arrest itself was unlawful, thus tainting every aspect of subsequent police conduct, thus murder!11!11!

The thinking, as near as I can understand it, is as follows:

(1) Freddie Gray did no more than merely make eye contact with police officers, and then flee. (At this point the police did not know that Gray possessed a knife, whether legal or not.)

(2) On this basis the police initiated a pursuit and stop of Gray.

(2) This police conduct fails to meet the standard of probable cause necessary for an arrest to be Constitutiona, making the arrest unlawful

(4) Even if Gray’s knife is indeed unlawful it must be suppressed as evidence because it is the fruit of the tainted tree of the unlawful arrest, as the police did not know of the knife when they initiated their interaction with Gray.

(5) ????

(6) The police in custody of Gray murdered him.

Sadly, this conception of the events in this case and the conclusion drawn merely reflects a rather profound ignorance of what the Constitution permits in terms of police interaction with the public.

The simple truth is that under the facts as known in this case the police had more than sufficient grounds on which to arrest Freddie Gray. (Whether the police used excessive force in making that arrest or murdered Gray in the van are, of course, separate issues, which we’ve already touched upon in detail here:   What do we REALLY know about why Freddie Gray died?)

As is our practice in our posts here at Legal Insurrection, then, let’s take a step back from the narrative of the mob and the activists and media (but I repeat myself) responsible for their care and feeding, and look to the actual law.

Meet Terry v. Ohio

While there have been numerous Supreme Court decisions touching upon one or another of the Constitutional issues raised when police interact with the public, the touchstone in the modern era is Terry v. Ohio, 392 U.S. 1 (US Supreme Court 1968).

In Terry the Supreme Court distinguished various degrees of interaction between the police and the public, and established the legal criteria that scoped whether those interactions were Constitutional.

Distinguishing an Arrest from a Stop

The least degree of interaction, of course, is a police officer merely observing someone in public.  This raises no Constitutional issues, and is entirely lawful.

On the other extreme, the greatest degree of interaction between police and public, for purposes of this discussion, is the arrest.  Simply put, an arrest occurs when the police have seized custody of your person and you are placed under their physical control pending further processing in the criminal justice pipeline.

It is often the case, however, that the initial interaction between an officer and a member of the public is not a full-out arrest, but a less intensive stop. During a stop the officer might question the suspect and try to develop further information about the circumstances that led to the stop.

It is in the context of such a stop that Terry makes its mark, and to this day police stops of the nature under discussion are referred to as “Terry stops.”

Bottom line: An arrest and a stop are distinct types of interactions between police and the public.

Distinguishing Probable Cause from Reasonable Suspicion

In order for an arrest to be lawful the arresting officer must have probable cause to believe that the suspect has committed a crime. Probable cause in this context means that the officer must have a reasonable (meaning, the application of reason to observed evidence) and articulable basis for this belief.

Probable cause is not, however, required in order to make a mere stop.  The legal requirement for a stop is the lower threshold of reasonable suspicion.

So, what is reasonable suspicion?

Interestingly, Terry itself uses the phrase reasonable suspicion only once, and not in the context of providing a definition.  This, however, is the conduct of Terry and his cohorts which the Court found was sufficient to raise a reasonable suspicion in the officer who initiated the stop:

Officer McFadden testified that, while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35, and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years, and that he would “stand and watch people or walk and watch people at many intervals of the day.” He added: “Now, in this case, when I looked over, they didn’t look right to me at the time.”

His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from the two men. “I get more purpose to watch them when I seen their movements,” he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece — in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man.

By this time, Officer McFadden had become thoroughly suspicious.

As can be seen, no explicitly unlawful behavior is required to raise a reasonable suspicion–merely suspicious behavior is sufficient.

(Given the importance of Terry in American jurisprudence, I do of course urge you to read the whole thing.)

Applying Terry to the Freddie Gray Experience

How does this compare to the police interactions with Freddie Gray in the case du jour?

Freddie Gray had an extensive criminal record, and this was well known to police officers in the community.  He was, in short, known to engage in unlawful criminal activity with a frequency that would in any other context be considered evidence of a notable work ethic.  He had at least 18 arrests in the ~8 years between 2007 and his death in 2015–and it is worth keeping in mind that the only reason his arrest record here begins in only in 2007 is that prior arrests would be sealed as juvenile records.

It is also notable that although Gray’s early arrests were apparently confined to drug offenses, in later years he began to be charged with acts of violence, including several charges on differing dates of second-degree assault, as well as burglary.

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.

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.

At this point the Constitutional grounds for a Terry stop have clearly been met.

Again, not adequate grounds for an actual arrest, but adequate grounds for a mere stop.

Suspicion Leads to Stop, Stop Leads to Frisk

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.

This is a far more limited search than is permitted during a full-on arrest. During an arrest, the police may thoroughly search through your pockets, for example, for any items that might prove to be contraband, or even to simply document your possessions at the time of arrest.

In the cast of a Terry stop, however, the police are limited to a superficial pat down or frisk of the suspect’s outer body to ensure that they do not apparently possess weapons capable of endangering the officers or the public.

That said, if the pat down or frisk discloses the identifiable presence of a weapon in a pocket, for example, then that weapon may be secured to ensure the safety of the scene.

The securing of such an item is perfectly lawful, and if the item turns out the be contraband it is perfectly appropriate as the basis for the probable cause necessary to make an actual arrest.

Let’s Review: Freddie Gray’s Stop, Frisk, and Arrest

In the context of Freddie Gray, we’ve already seen that the Constitutional basis for a Terry stop was present.

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.

The discovery of Gray in possession of contraband forms the probable cause for charging Gray’s with the relevant crime and effecting his arrest.

freddie_gray_complaint 600


None of this, of course, settles the arguably more central issue of how it came to be that Freddie Gray died in police custody, as we covered in our earlier post here:  What do we REALLY know about why Freddie Gray died?

It does, however, suggest that it’s quite likely the police had sufficient legal grounds upon which to stop, frisk, and arrest Gray.

–-Andrew, @LawSelfDefense

NEW! The Law of Self Defense proudly announces the launch of it’s online, on-demand state-specific Law of Self Defense Online Training.  These are interactive, online versions of the authoritative 5-hour-long state-specific Law of Self Defense Seminars that we give all over the country, but from the convenience of your laptop, tablet, or smartphone, and on your own schedule.  Click over for more information on our state-specific Law of Self Defense Online Training, and get access to the ~30 minute Section 1. Introduction for free.

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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Thank you Prof. and Mr. Branca.

Richard Aubrey | May 1, 2015 at 9:16 am

Do we know that the cops recognized Gray? Keep in mind that everybody is talking about cops not having relationship with the community and that, if true in this case, would mean it is unlikely they would recognize him. Pick one…and you lose the other.
So, after chasing a nutcase, they find he’s carrying a knife which is illegal–clearly or marginally–and they’re about to get a CRININAL OFF THE STREETS.
The broken window theory–aka stop&frisk–seems to work in NYC where we’ve seen it 1, not done; 2, done; and now 3, not done, with clear results.
Still, you get guys carrying marginally illegal knives–lockbacks illegal in San Antonio, ffs–which is not going to reduce crime except by putting otherwise innocent guys into the criminal justice system.
Anyway, this whole thing blew up over a guy with a knife which in many jurisdictions is legal.

    Faux-conservative truthiness practitioner Stephen Colbert is a knife criminal.

    Some of the applications of these knife laws are crazy.

    Ragspierre in reply to Richard Aubrey. | May 1, 2015 at 10:18 am

    Several points…

    1. switch-blade knives were illegal in just about every American city until about 10 minutes ago. They are still illegal in most BLUE model cities (which is about every major metropolitan area).

    2. this didn’t “blow up” because of policing.

    There is a design here.

      I agree with you that the violent riots and senseless looting are being driven by outside forces, and are 100% wrong (not to mention counter-productive). I wouldn’t defend the violent gangs of thugs trashing Baltimore (or Ferguson, or any other city for that matter) for a moment.

      But the fact that the violent thugs are bad people doesn’t preclude the possibility that the police and administration of Baltimore are bad people too. Just because one side are villains doesn’t mean the other side are necessarily heroes. Maybe they’re all bad people. That happens.

        Ragspierre in reply to Amy in FL. | May 1, 2015 at 10:55 am

        I may have been too abbreviated in my comment.

        There is a cycle at work here. Over-criminalize everything, first. The Progressives were the authors of the Sullivan Act and its many imitators.

        Second, direct police to enforce the laws.

        Third, when the police DO enforce the laws, point to any incident…real or not…which supports taking local control away and making “policing” a Federal issue.

        It’s been done with voting, too.

Police don’t seem to stand a chance. They’re damned if they do and damned if they don’t.

Now Baltimore police have been ordered to secure all prisoners in the van. That’ll keep ’em safe, right? What happens when a van has an accident and/or catches fire and a prisoner can’t escape?

The same “activists” who decried the cops’ failure to belt Gray in will be back on the streets condemning them for leaving the prisoner no way out.

You can’t win against these people.

    Ragspierre in reply to creeper. | May 1, 2015 at 10:01 am

    I’ve never seen a school bus with seat belts.


      Schoolchildren generally aren’t transported with their legs shackled and their arms handcuffed behind them; and schoolbus drivers who intentionally give their charges a “rough ride” generally face harsher penalties than cops who do so.

        Ragspierre in reply to Amy in FL. | May 1, 2015 at 10:23 am

        Really? What support do you have for any of that (besides the school children part)?

        Or is that like your assertion yesterday the Freddie ran because he was scared the police would kill him?


          The last few times cops (including in Baltimore) were judged to have caused grievous injury by giving their shackled prisoners a “rough ride”, the cops themselves were not charged, and the taxpayers were the only ones punished because they were the ones left to cough up the settlement.

          In 2004, a man named Jeffrey Alston won $39 million from Baltimore after he was paralyzed from the neck down during a police-van ride. The following year, Dondi Johnson Sr. won $7.4 million after a ride left him a paraplegic. In 2013, Johns Hopkins librarian Christine Abbott filed a suit against the department for a “rough ride” after a 2012 arrest that resulted from a noise complaint.

          If a children’s schoolbus driver had been found to have first rendered his or her charges unable to catch themselves if they fell, and then taken them on “rough rides” leaving some of them paralyzed for life, I’m pretty sure we’d look dimly upon that.

          Ragspierre in reply to Ragspierre. | May 1, 2015 at 10:46 am

          “Warble and Yamin told police investigators that Alston caused his own injuries. They said they placed Alston in the van after they smelled alcohol on his breath and that he stood in the van during his transport and fell, Huskey said last night.

          But Alston’s lawyers alleged that Warble – driver of the van – broke Alston’s neck when he put the man in a headlock. Yamin was supervisor of the van, according to the attorneys.

          In its verdict, the jury found that Warble had committed assault and battery against Alston, and that he and Yamin had violated the man’s constitutional rights, were grossly negligent in their conduct, caused his injuries and acted with malice.”

          You really need to look under the hood when The Atlantic tells you shit.

          In its verdict, the jury found that Warble had committed assault and battery against Alston, and that he and Yamin had violated the man’s constitutional rights, were grossly negligent in their conduct, caused his injuries and acted with malice.”

          That was a civil, not criminal, case. The cops were not held criminally responsible, they did not have to cough up one cent of their own money either in legal fees or towards the judgement, and I don’t see any evidence that the cops were fired for it. The fact that their lawyer was paid for by the city implies that they were still employed by the city. Otherwise, like Slager who was immediately fired, wouldn’t they have had to cough up for their own defense?

          I don’t see how any of that rebuts my opinion that “the cops themselves were not charged, and the taxpayers were the only ones punished because they were the ones left to cough up the settlement.” I may be wrong, and the cops did actually end up charged and convicted of criminal offenses, but I haven’t seen that yet.

          Ragspierre in reply to Ragspierre. | May 1, 2015 at 11:17 am

          Amy, are you PLAYING obtuse, or are you really missing every point here?

          You…and The Atlantic…evoked this case as “rough ride” evidence. That’s bullshit, according to the Baltimore paper. At trial, the “victim’s” lawyers alleged the injuries were caused MANUALLY.

          And you don’t know WTF you’re talking about. The COPS were the ones principally liable. Now, in many states that means their wages can be levied against by their judgment creditor. They MIGHT have been able to bankrupt around that judgment, but I doubt it because you can’t avoid a judgment involving intentional behavior (malice here) in bankruptcy.

          Dunno if Maryland allows garnishment of wages or not. Dunno if Maryland allows a homestead exemption against a judgment creditor.

          Do you? So, the cops here COULD have lost their homes and their future earnings.

          Did you not even read your own link?

          “Because the officers were acting for the city, the city is liable for the damages, the plaintiff’s lawyers said.”

          The cops were not out a dime. The hapless taxpayers of Baltimore got stuck with the tab.

          Ragspierre in reply to Ragspierre. | May 1, 2015 at 12:31 pm

          Well, Amy, I would modestly BET I know more about civil law than the mook writing for a newspaper.

          Look up “joint and several liability”.

          Plus, you’re STILL wrong, and you’ve punked yourself using The Atlantic as a source you DID NOT CHECK.

          It was the plaintiffs’ lawyer who said that. You may well know more about civil law than the plaintiffs’ lawyer in this civil suit; I wouldn’t know.

          Ragspierre in reply to Ragspierre. | May 1, 2015 at 1:06 pm

          You didn’t look up the term, did you?

          What he meant was that the city was liable TOOOOOOO.

          NOT solely.

        ConradCA in reply to Amy in FL. | May 3, 2015 at 4:41 pm

        The policy to strap criminals in with seat belts was just changed in 4/9/15.

Henry Hawkins | May 1, 2015 at 9:54 am

What’s the point of running if you don’t dump your contraband? Dumbass.

inspectorudy | May 1, 2015 at 10:08 am

Notice anything that ALL of the latest white cop on black victim have in common? Every single one of them resisted arrest! Hello! If they had stopped and submitted to the legal stop by the cops they would ALL be alive today!

It is also notable that although Gray’s early arrests were apparently confined to drug offenses, in later years he began to be charged with acts of violence, including several charges on differing dates of second-degree assault, as well as burglary.

Just out of curiosity, how many of these was he actually convicted of?

If we’re just going to go by “arrests”, then by the number of arrests George Zimmerman has had since his acquittal in the Martin case, we’d have to assume that he’s a violent recidivist wife-basher (girlfriend-basher) and should probably be detained on sight whenever he’s within 10 feet of a woman.

Which, of course, wouldn’t be right.

“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.”

I agree, this is a consideration. I’m good with the analysis until here.

“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.”

This is where we part company. We need the officers’ ACTUAL OBSERVATIONS. IME, “acting in a manner that they perceive as noteworthy” is not gonna cut it. Because, if I remember correctly-and I do not recall the cite-“mere flight from pursuing officers is not sufficient grounds for a detention.”

“At this point the Constitutional grounds for a Terry stop have clearly been met.”

I disagree with the “clearly” part. Maybe, maybe not. And, if there are no grounds for detention, then we must start the “fruit of the poisonous tree” conversation.

More fuel to the fire..

How do you illegal arrest someone?

Sammy Finkelman | May 1, 2015 at 11:07 am

A persn in this situation might get the case thrown out on the grounds there was no reason for suspicion beyond running away (which the courts have ruled is not good grounds for suspicion, except that it is sometimes) but he wouldn’t get the knife back.

Richard Aubrey | May 1, 2015 at 11:08 am

Looks like the cops are going to be charged with homicide. The DA (Mosby?) is telling the youth that this is your time or some such.
That’s as of a presser a couple of minutes ago I caught part of. Of which i caught a part.
May be modifications, but part of the point was the cops had no reasonable cause for a detention and what transpired after that. For a freaking knife………..

WRT knives: Where I live a CCL does not allow you to carry a double-edged knife such as the ubiquitous Kaybar, or the more graceful Fairbairn. Or anything else with the top edge touched up some. Hell, I have a middle-sized kitchen knife whose top is quite unnecessarily beveled to take an edge any time I put it in the sharpener upside down. For what purpose? Nor can you carry a knife with a knuckle guard. I’m not even sure possession is legal. Have to figure out how to check.

Seems possible only given the incompetent mayor & her Soros inspired comments.

I don’t think the charges will stick, and the Sharpotons and Obama’s of the world will no doubt cause the city to burn once again on the eve of the acquittal..

Was Freddie Gray’s Arrest Lawful? Almost Certainly

Madame Prosecutor begs to differ:
BALTIMORE – Baltimore’s chief prosecutor Marilyn Mosby announced Friday that Freddie Gray’s death in police custody has been ruled a homicide. Mosby made the announcement during a press conference, where she also revealed the timeline of events that lead to Gray’s death and the charges that have been filed against the six officers involved in his arrest.

Mosby said Gray’s arrest was illegal, and therefore charges will be filed against the officers, whom she mentioned by name. Warrants have been issued for the arrest of all six police officers. Charges against them range from second-degree murder to assault.

“We have probable cause to file criminal charges,” Mosby said. “Officers illegally arrested Mr. Gray.”

    You can indict a ham sandwich (but you can’t indict a Reuben on pumpernickel)

    I have to say, I find this bit disturbing:

    State’s Attorney to people of Baltimore: “I heard your call for no justice, no peace”

    Prosecutors should either charge or not charge based on cool, dispassionate decisions based on facts and rule of law. Letting decisions about prosecutions be driven by mob rule or threats of violence sets a really bad precedent. That’s pretty much what happened in the Zimmerman case, even if our prosecutor didn’t come straight out and say, “Okay, we’re intimidated, you won, we’re caving, please don’t hurt us” like that.

    Either there’s enough evidence to charge these officers, or there isn’t. How loudly the crowd is baying for blood shouldn’t factor into it.

      I suspected something was up just because of the arrest warrants (which shouldn’t be necessary, are police officers really going to flee?). But that… …ugh.

      That said, let the evidence speak for the deceased, however how much or how little.

      platypus in reply to Amy in FL. | May 2, 2015 at 3:11 am

      You could paraphrase the state attorney as “Okay, we hear you. We’ll lynch them for you.”

    amatuerwrangler in reply to Amy in FL. | May 3, 2015 at 12:35 pm

    What happened to convert an event presumably lawful on the day of arrest to an unlawful one on Friday, 4/30?

    The original post by Andrew includes a shot of the charging document saying that Poor Freddie was formally charged with possession of a knife that was out of compliance with Baltimore City regulations. Someone in that Baltimore section of the State’s Attorney office believed that the knife was illegal to possess and that the route taken by the police officers to contact Freddie and examine the knife was lawful and charged Freddie with the offense.

    “Probably cause” is not the burden for formal charging; the prosecutor must believe that the offense was committed, and by the person involved, and that they can prove that with valid evidence at trial… to a moral certainty and beyond a reasonable doubt. Someone in the justice system in Baltimore held that belief and filed the charge.

Henry Hawkins | May 1, 2015 at 12:02 pm

Invisible dog.

I mention the following knowing it’s just anecdote, but to acknowledge this sort of thing does happen, or at least used to:

About 1980 or so, I was arrested in downtown Raleigh NC for drunk and disorderly and fighting the officers involved, a not uncommon event for me at the time. I was hopping mad, drunk-style, not at the officers but at yet another set of legal probs to resolve – or run from, since I was in NC on the run out of Oklahma City. Anyway, on the ride to jail I was in the back seat behind a metal grid that protects front seat officers from back seat arrestees. I was cuffed behind, and holding forth in my outside voice on everything wrong in this world, particularly the criminal justice system. Failing to get a reaction, I went personal with trash talk about the driving officer’s wife and/or girlfriend. Use your imagination, I sure did. Well, I hit the right button.

The officer driving the vehicle made a theatrical show to his partner riding right seat about that dog just up ahead. “I don’t see any dog,” he answered. The driving officer said, “he’s invisible!” and slammed on the brakes. This bounced my face off the metal grid in front of me, which was the whole purpose, of course. I was soon booked and photographed – with an angry red crosshatch pattern across my forehead and one cheekbone that took two weeks to fade, lol.

Bear in mind, I didn’t blame them one bit. This was my 10th? 11th? arrest within the past year. I was very drunk for 7-8 of them and I always fought the officers (or tried to – you know you’re gong to lose, but I was game). Was it legal what they did? Well, no, of course not. But was it ‘right’, if not ‘legal’? ABSOLUTELY, even according to me at the time. I had it coming. All those arrests and I was still on the bricks, having always been allowed to bond out and keep continuing every case, so I had no actual convictions as yet in the 9 months I’d been in NC. In short order in Raleigh NC, I became well-known to Raleigh PD patrol officers as a jackleg drunk who WILL resist, fight, if he’s drunk. I was big, too. They always sent two officers, or more if someone was bored at 3 am, lol.

My point is that this sort of thing likely still happens, that Gray was likely as well known to Balt PD as I was to Raleigh PD, plus he had just ran and resisted arrest. I don’t condone it if it did happen in the Gray case, but it does fit the known circumstances. Key testimony might come from the other arrestee in the meat wagon, but the ‘invisible dog’ maneuver – hard braking with a shackled prisoner in the back – might have occurred after Gray went in but before the next guy was loaded. (BTW, the other guy in the van has changed his account, perhaps out of fear of being a snitch, or not wanting to exonerate police).

All pure speculation, of course.

legalbeagle | May 1, 2015 at 12:45 pm

Mr. Branca, since the prosecutor has charged “False imprisonment” she seems to disagree with your notion that a person who flees police officers about to conduct a Terry Stop can be pursued and forcibly detained.

Care to comment?

Vancomycin | May 1, 2015 at 2:10 pm

Well, since the prosecutor is a black lives matter hack, married to a black lives matter hack of a city councilman, and apparently has ties to the gray family, oh and that she’s got a mob baying for blood, I’d say she’s pretty motivated to do whatever she can to pretend that the law isn’t the law.

DaveGinOly | May 1, 2015 at 5:00 pm

I understand Terry. That being said, I believe it’s wrong. Why should the police (or any other government official or agent) be allowed to create or instigate a situation in which he or she is then permitted to conduct a search without cause? If an officer can articulate why he felt he was in danger during the stop (say, a stop of a known violent offender, or that the officer noticed something specific that led him to believe the subject was armed), he should be able to search for his own safety. But he should not be able to search for his own safety as a matter of course, in defiance of the Constitution.

Police work is dangerous and I understand the desire to make it less so (I worked in a cop shop for 8 years). But there are all manner of unconstitutional acts that could be authorized to make police safer. Terry permits something that is plainly unconstitutional. Calling it constitutional doesn’t make it so. The pretext of “officer safety” is used to not only identify actual or potential weapons on the subject’s person, but can also be used to create the grounds for an arrest should the weapon prove to be illegal, or other contraband is found. The pat-down frisk is a form of “fishing expedition,” used by police to discover evidence they otherwise don’t have cause to search for. I don’t see an “officer safety” exception in the Constitution that excuses government’s need for cause in order to conduct a search.

Correct me if I am wrong, but wasn’t Gray on felony probation? If so, he likely would have had search terms and have to submit himself to search at any time. Flight would likely violate probation, making arrest legal. Hell, if the cops said “stop” and he fled, that would likely be a crime in MD (it would be in CA.)

Another Ed | May 2, 2015 at 3:29 am

It is essential to determine whether Gray’s knife was actually a switchblade (prohibited), or an assisted opening folding pocket knife (not prohibited):

    Enjoyed the article, thanks. I like this part: “That ambiguity also effectively means that any knife an officer wants to treat as illegal can actually be illegal.” That’s disturbing – imagine if we let them get away with such vague laws on guns? Any CCL carrier could be arrested and hauled off to jail in the back of a paddy wagon for having an “illegal” gun any time any police officer felt like it. If any type of gun could be judged on the whim of some individual police officer to be “illegal”, then no type of gun is ever actually legal, or safe to carry. The NRA (and I dare say most commenters here) would never stand for such a state of affairs.

    And the point that “The legal distinctions made about how a knife opens are pretty empty — kitchen knives are probably responsible for more knife crimes than any other type.” That reminds me a bit of the anti-gunners’ fixation with “assault weapon” bans. They want to ban something because it “looks scary” or “has a scary vibe to it”, but have no evidence that making those scary-looking weapons illegal is actually going to cut down on illegal crimes (gun or knife).

By the way, Andrew, the title is a nice play on words. “Almost certainly” would make a great country music song, like ” my girlfriend says she loves me, almost certainly.” 😉

Ms. Mosby either does not understand, or deliberately conflates the probable cause needed for a lawful arrest with the probable cause needed to bring an arrestee to trial. Her approach of charging police with false imprisonment, if commonly adopted, would end policing as we know it.

To address a point made by Andrew, Gray was charged with the municipal code violation 19 59 22 which reads;

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.

Note the charging sheet alleges:

..did unlawfully sell, possess and carry a knife commonly known as a switch blade knife..

From the wording, it is possible that the police were also alleging a sale of a different knife. That is just simply unclear since Ms. Mosby, by her own words, has heard the voices of the rioters and (instead of seeking justice) is seeking justice for Freddie Gray.

    amatuerwrangler in reply to sequester. | May 3, 2015 at 12:45 pm

    I commented this same thing (essentially) up list a few minutes ago. Apparently Ms Mosby did not know, or ignored, the fact that someone in her office had already charged Freddie with possession of the subject knife. That person obviously believed the stop and arrest to be lawful and the knife to be illegal.

    A copy of the charging paper is embedded in Andrew’s original post….