“Shallow water diving” nature of Gray’s injury further undermines prosecution theory
The Baltimore Sun newspaper has obtained a copy of the autopsy of Freddie Gray, they report, at a time when Prosecutor Marilyn Mosby is still refusing to provide that report and other purported evidence to the defense lawyers of six Baltimore police officers charged in the death of Freddie Gray. The deadline for defense counsel to receive the report is Friday.
The Sun did not release the report itself, but merely reported on its “take home” finding that Freddie Gray’s neck injury was caused by a “high energy” impact to his head. As the paper reported:
The state medical examiner’s office concluded that Gray’s death could not be ruled an accident, and was instead a homicide, because officers failed to follow safety procedures “through acts of omission.”
Though Gray was loaded into the van on his belly, the medical examiner surmised that he may have gotten to his feet and was thrown into the wall during an abrupt change in direction. He was not belted in, but his wrists and ankles were shackled, putting him “at risk for an unsupported fall during acceleration or deceleration of the van.”
The medical examiner compared Gray’s injury to those seen in shallow-water diving incidents.
In a separate article consisting of an excerpt from the autopsy report the Sun provides the actual report language on this point:
The type of fracture/dislocation documented in imaging studies on admission is a high energy injury most often caused by abrupt deceleration of a rotated head on a hyperflexed neck, such as seen in shallow water diving incidents.
This is simply another nail in the coffin of Mosby’s efforts to prosecute these officers on the serious charges she’s levied against them, which include depraved-heart murder, manslaughter, and assault.
The primary hook from which Mosby is seeking to hang her prosecution of the officers is their purported failure to seat belt Mosby into the van. Even that hook works only if (1) the officers had a legal duty to belt him in, (2) they violated that legal duty, and (3) their violation was the proximate cause of Gray’s injuries.
But did the officers have a legal duty to belt him in? If so, did they violate that legal duty? And if that’s affirmative, was their violation the proximate cause of Gray’s injuries.
Every single one of these questions must be answered in the affirmative, and a unanimous jury convinced of their truth beyond a reasonable doubt in order for there to be any hope of a conviction on the most serious (and likely on any) of the charges.
Did the officers have a legal duty to belt Freddie Gray in?
Mosby theory of the case is largely dependent on the purported failure of the officers to seat belt Gray into the van. But did they have a legal duty to do so? The police department regulation calling for such seat belting had been in effect only nine days at the time of Gray’s arrest. Had it even been promulgated to all the officers? Can the prosecution prove that the officers knew or should have known of this new rule?
On that note, somehow the Baltimore Police department had managed to function (in its own fashion) and drive prisoners around in vans for decades without seat belting them in. Given that historical context, can it possibly be that failure to buckle Gray a mere nine days after the seat belt rule changed is sufficient to form a depraved-heart malice or a the gross negligence to a readily apparent danger required for involuntary manslaughter?
I suggest not.
Did the officers violate a legal duty to belt Freddie Gray in?
Nevertheless, let us assume for purposes of discussion that the officers did have a nominal legal duty to belt Freddie Gray into the van.
No legal duty is ever absolute. One must always be prepared for the possibility that a given set of circumstances will justify the waiver of that duty. This is particularly true where blind adherence to the nominal duty creates a risk of harm to persons.
If the officers who arrested Gray in the van and drove him around had a reasonable and rational basis for not seat belting Gray into the van, then their obligation to adhere to the nominal legal duty of belting Gray into his seat is waived–and this is particularly true if adherence to the nominal duty would have created an increased risk of harm to either the police or to Gray.
Safety of the Officers As Waiving Duty to Seat Belt Gray
Let’s look to the safety of the officers first.
It is not standard police procedure to shackle the ankles of a suspect in a routine arrest, as Freddie Gray’s arrest was. The legs are typically shackled only when the suspect is non-compliant. Indeed, Gray was explicitly shackled at the feet because of his non-compliance, as documented by the autopsy report itself:
In fact, the autopsy report itself notes that Gray was in fact not being compliant with his lawful arrest, based on excerpts released by the Baltimore Sun.
[Gray] was assisted to the police van on Presbury Street (1st stop), exhibiting both verbal and some physical resistance.
. . .
The 2nd stop was several blocks down (on Baker Street) to place an identification band and leg restraints on Mr. Gray. Reportedly, Mr. Gray was still yelling and shaking the van.
Indeed, so sustained was Gray’s violent movement within the van that a second prisoner not picked up until the fifth stop after Gray’s arrest reported on the tumult. Again, this is documented in the autopsy report itself:
At this 5th stop (at North Avenue and Pennsylvania Avenue), . . . [t]he second individual was placed in the left hand compartment of the van and the vehicle was driven to the Western District headquarters. By report, this second detainee said that he heard Mr. Gray banging and kicking through the metal divider.
It is very common for officers to avoid standard operating procedures when dealing with a non-compliant suspect, when those ordinary procedures become unreasonably dangerous due to the suspect’s non-compliance. Seat belting a suspect is perhaps among the first of these SOPs to fall by the wayside when dealing with a non-compliant suspect, because it places the officer at risk of the suspect biting them or spitting on them. The officer is permitted to prioritize his own safety over the SOP to seat belt a suspect.
In this way the officers’ failure to seat belt Gray can be justified on grounds of officer safety.
If the police make such an argument in with credibility it seems unlikely that Mosby would be able to convince a jury unanimously of the contrary, beyond a reasonable doubt. And if she can’t, the legal duty is waived and the seat belt issue disappears as a basis for criminal charges.
Safety of Gray as Waiving Duty to Seat Belt Gray
Let’s now look to the safety of Gray. Yes, the safety of Gray.
Many seem to be assuming that seat belting Gray in the van would have been safer for him than leaving him unbelted, and that therefore the failure to seat belt Gray in place certainly created an undue and unnecessary risk.
They are wrong.
Recall that that Baltimore PD had been driving around suspects without seat belts for decades. Today, many police departments still do not seat belt suspects into these types of vans.
The reason? Seat belting them in is actually more dangerous than leaving them unbelted.
Don’t believe me? Let’s step through it.
Most of us, I trust, do wear seat belts when we travel by car. In doing so, however, we are facing forward in the vehicle, with two to three feet of space between our heads and the dashboard or windshield. That space is essential to the safe operation, and to realizing the safety benefits, of the seat belt. Anybody who has ever experienced a hard stop while belted in a passenger car knows that your head moves forward a notable distance before that motion is restrained by the seatbelt. In a forward facing position this is no problem, as your head has the necessary open space to travel that distance and not strike anything.
Facing forward, however, is not how prisoners travel in a police van. Rather, they face sideways, towards the centerline of the van. If the van were to experience an abrupt deceleration, their heads would move not in the direction of their knees, as is the case with a person in a passenger car, but sideways, towards the front of the van. To illustrate, below is a schematic prepared by the New York Times of the prisoner van in which Gray was riding (Gray was in the rear, passenger-side compartment):
Even when police vans are equipped with seat belts there are generally only waist belts. (A shoulder belt would be useless, in any case, as it would only restrain movement towards the centerline of the van, unlikely in an accident scenario.) A waist belt placed on a prisoner would pin the prisoner’s buttocks in place on the bench, but leaves the prisoner’s entire upper body free to swing violently “sideways” (towards the front of the van) in the event of an abrupt deceleration.
In the narrow confines of a prison van the result of such a physiological motion is to swing the prisoner’s head violently sideways and into the internal aluminum bulkheads within the van. The result is that the entire force of the impact is focused on a single point of the prisoner’s skull, with often catastrophic consequences.
In contrast, imagine the same scenario but with the victim unbelted. This time when the van violently decelerates the prisoner’s entire body slides across the bench and impacts the internal aluminum wall simultaneously. Thus the force is spread over the entirety of the prisoner’s body rather than just a single point of his skull, and the impact is far less likely to cause a traumatic injury to the skull at any given speed.
The bottom line? It is safer for the prisoners themselves to be unbelted while traveling in a police van, especially at the speeds of inner city traffic, and more dangerous for them to be seat belted. Indeed, this is precisely why so many departments still do not seat belt prisoners in police vans.
So were the six officers charged with Gray’s death truly creating a more dangerous circumstance for Gray when they declined to buckle him him, as the prosecution claims? Or were they in fact creating a safer circumstance for Gray in doing so?
Remember, the prosecution has to convince a jury unanimously of its side of the argument beyond a reasonable doubt. The defense, in contrast, need merely sustain a reasonable doubt in one juror’s mind.
To my eyes, I see a great deal of reasonable doubt here.
Whether the nominal legal duty to seat belt Gray into the van is waived on the basis of officer safety or on the basis of Gray’s own safety, to the question of “did the officers violate a legal duty to belt Freddie Gray in?” I answer in the negative.
Was the failure to seat belt Gray the proximate cause of his injuries?
Let us assume, however, that not only did the police have a legal duty to seat belt Gray into the van, but also that their failure to do so was a violation of that duty.
We remain left to answer the question of whether that assumed failure was the proximate cause of Gray’s injuries. And again, this is an argument of which the prosecutor must convince each and every member of the jury beyond a reasonable doubt.
And here the very terminology of the autopsy report dooms Prosecutor Mosby’s theory of the case, specifically when the medical examiner compared Gray’s injuries to those typically suffered in a shallow-water diving incident.
We can all easily envision a shallow-water diving incident. A person is on the edge of a body of water which they believe deep enough to allow safe diving. They lean forward, allow gravity to pull them into a diving fall, enter the water, only to encounter a shallow obstruction. With the entire momentum of the body falling forward and down, they strike their head forcefully on the obstruction, and suffer traumatic head and neck injury.
We know from the video of Gray’s arrest exactly how the police placed Gray into the van: they laid him on the floor of the vehicle. It is conceivable that a prison van might have so severe a head-on collision that a prisoner in this position could be hurled forward against the interior of the van and suffer a traumatic head injury. It is not conceivable that a prison van could achieve such an dramatic rate of deceleration, however, without striking another object with such force as to cause major damage to the vehicle.
No such damage is reported to have occurred to the van in which Gray was transported.
Indeed, even the autopsy report discounts this possibility:
While it cannot be excluded that this[neck] injury could occur while lying on the floor and sliding back and forth with the movement of the van, the likelihood of sufficient acceleration/deceleration to generate the energy needed is less likely in this position.
Thus the manner in which the police placed Gray in the van, on the floor of the vehicle, could not have been the proximate cause of his injuries.
A far more likely scenario of how Gray could have suffered a shallow-water diving type injury is apparent, however, to anyone who has stood in a moving city bus, trolley, or subway, and experienced the need to grab onto a pole or overhead strap to keep from falling due to the motion of the vehicle. Indeed, that is why those poles and straps are positioned throughout such vehicles, although none of these vehicles can be said to be undergoing dramatic changes in speed or direction.
Further, those stabilizing devices are required even by people who do not have their ankles shackled. Imagine, for a moment, trying to maintain your balance on a bus, trolley or subway car with your hands cuffed and your feet shackled, while standing upright? Simply impossible, and a hard fall inevitable.
Let’s recall again the testimony of the other prisoner in the van that day with Freddie Gray, who reported that Gray was throwing himself around the interior of the van with such force as to rock the vehicle back and forth. Indeed, the autopsy report itself documents this to be the case:
After the inner and outer doors were closed, it is reported that Mr. Gray could be heard yelling and banging, causing the van to rock.
This is simply not achievable if Gray had remained on the floor of the van, shackled hand and foot. (If you don’t believe me, try it.)
One can only reasonably infer that Gray managed to get to his knees, at least, and perhaps to his feet. Shackled hands and feet, in a moving vehicle, it was only a matter of time before even the normal motion of the van (even breaking normally for a traffic light or to accommodate other traffic) would cause Gray to lose his balance, resulting in a hard fall. With his hands cuffed,he would have no way to break his fall, with the result that he would fall forward with his head striking either the floor or forward bulkhead of the van.
Exactly the same motion and the same impact as suffered in a shallow-water diving incident.
And who positioned Freddie Gray so as to make him vulnerable to a shallow-water diving injury even under conditions where the van was being driven in an entirely normal manner?
Only one person did that: Freddie Gray.
Thus Freddie Gray becomes the proximate cause of the injuries to Freddie Gray. Not the police.
This is by far the most likely scenario of how Gray suffered his injuries, as I am confident innumerable expert witnesses will testify on behalf of the police defendants.
The prospect that Mosby will be able to convince a jury to the contrary position, unanimously and beyond a reasonable doubt, simply cannot be given any credence whatever.
To the question of “was the failure to seat belt Gray the proximate cause of his injuries?” I answer resoundingly in the negative.
Failure to Provide Gray With Timely Medical Care
Having disposed of the nonsensical prosecution arguments dependent on the nominal failure of a legal duty to belt Gray into the van, the only remaining means of claiming criminal misconduct by the police officers centers on their alleged failure to provide Gray with medical care in a timely manner.
But that’s a post for another day.
Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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