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Freddie Gray Defense: Legally irrelevant whether Freddie’s knife was illegal

Freddie Gray Defense: Legally irrelevant whether Freddie’s knife was illegal

Files motion to keep out issue of legality of “spring-assisted” knife.

This week saw a flurry of motions from both the State prosecutors and defense counsel in preparation for the upcoming “Freddie Gray” trial of Baltimore Police Office Edward Nero, scheduled to begin February 22.  These were primarily in limine motions, which are motions asking the court to exclude particular evidence from the trial, often because the evidence is arguably irrelevant or prejudicial.

One of these motions by Nero’s defense counsel, Marc Zayon, asks the court to prohibit the State from presenting arguments and evidence about on the issue of the legality of the spring-assisted knife the arresting officers found in Freddie Gray’s pocket.  (This motion is embedded at the bottom of this post.)

The defense noted that the State had identified an expert witness on knives, presumably for the purpose of testifying on the legality, or lack thereof of Gray’s knife.  Their motion seeks to prevent such evidence and argument on this issue at trial.

You may recall that in initially bringing charges against the police officers involved in Freddie Gray’s arrest and transport, State prosecutors initially argued that the claimed probable cause for that arrest–Gray’s possession of a purportedly unlawful “spring-assisted knife” — did not in fact exist because the knife in Gray’s possession was not illegal as a matter of law.

In the case of Nero specifically, the officer is charged with Second Degree Assault, two counts of Misconduct in Office, and one count of False Imprisonment.

In the Statement of Probable Cause bringing these charges, the basis for the charges is that the officers (including Nero) “failed to establish probable cause for Mr. Gray’s arrest as no crime had been committed by Mr. Gray.”  This “failure to establish probable cause” for the arrest is itself based upon the claim that “The knife was not a switchblade knife and is lawful under Maryland law.”

The very foundation for the charges against Officer Nero, then, is whether the officers had a reasonable belief that they had probable cause, on any basis, for Gray’s arrest.  If they did, the charges against Nero are without basis as a matter of law.

As with apparently any matter involving the office of Prosecutor Marilyn Mosby, even this relatively straight-forward issue of law and fact around probable cause and the knife soon became a miasma of confusion.

For example, Mosby claimed the knife was legal under Maryland law, but Gray was not charged for a violation of Maryland state law. Rather, he was charged for violation of Baltimore City Code Article 19 §59-22, which has stricter prohibitions on knives of this type than does Maryland state law.

In addition, even if it turned out that the knife was legal, the issue here is not whether the knife was in fact legal but whether a reasonable officer might have perceived the knife as being illegal at the time the arrest decision was made.

With prosecutors apparently realizing the weakness of their argument for lawful arrest on the basis of the lack of probable cause related to Gray’s spring-assisted knife, the State quickly distanced itself from its initial theory of the case.  Instead, they began to argue that the knife was irrelevant, because in fact Gray’s arrest, for legal purposes, occurred before the police had even spotted the knife, and that it was this “arrest” that was unlawful for lack of probable cause.  They quickly ran into trouble with this argument, as well, as it evidenced an utter ignorance of the legal distinctions between a police detention (or Terry stop) and an actual arrest.

We discussed many of these matters at great length at the time, including Was Freddie Gray’s Arrest Lawful? Almost CertainlyFreddie Gray’s Knife – Why is Prosecutor Claiming Unlawful Arrest?, and Confirmed – Freddie Gray’s Knife WAS Illegal.

Here we’ll simply highlight some of the key points made in the defense motion to prohibit evidence and argument around the knife, and point out the ongoing and cynically amusing hypocrisy of Prosecutor Mosby.

Defense counsel argues that given the State’s change in argument re: the legality of the arrest–that the purportedly unlawful arrest occurred before the knife was spotted–whether the knife was lawful or not is irrelevant to the State’s theory of the case. In paragraph 7 of its motion, the defense quotes the State current argument:

The State has now affirmatively asserted that “Mr. Gray was arrested prior to the discovery of the knife in his pocket, such that the legality of the knife is largely immaterial except to rebut any claims the Defendants may raise about their beliefs and the reasonableness of those beliefs.”

Clearly, if even the State is arguing that the knife is largely immaterial, there can be little argument made that it is relevant and therefore admissible.

But what if the State decides to switch back to its original theory, that the knife was the basis for the officer’s claimed probable cause, that the knife was in fact lawful, and that therefore the arrest was unlawful?

The defense counsel for Officer Nero notes that even then the legality of the knife is irrelevant for purposes of trying Nero.  Why? Because it was Nero’s colleague, Officer Miller, who noted in the Application for Statement of Charges against Gray that the knife was the basis for Gray’s arrest, and it was the Court Commissioner who made the legal determination that the knife was unlawful.  Neither of these findings was made by Nero, who was merely assisting Miller and the other officers in the arrest of Gray.

Indeed, even if it were determined that the knife was legal under the City of Baltimore’s more restrictive constraints, at worst this amounts to a mistake of law on the part of the arresting officers, including Nero.  Absent a demonstration of malice, the solution for a mistake of law of this type by a police officer is simply the suppression of that evidence from trial.

Perhaps the most cutting part of the motion, however, is found in the last two paragraphs of the defense motion.

Here, they note the blatant hypocrisy of Prosecutor Mosby should she seek to revert to her initial claim that Freddie Gray’s “spring-assisted knife” is lawful, and therefore could not be the lawful basis for probable cause of his arrest.

Where would this hypocrisy found? In the fact that following Gray’s arrest and the State’s claims that Gray’s knife was lawful, Prosecutor Mosby’s office has continued to charge and criminally prosecute defendants on the basis that they were found in possession of a “spring assisted knife.”

In illustration of this hypocrisy, the defense attached no fewer than 14 examples of prosecutions premised on possession of a “spring assisted knife” by Mosby’s office following their “lawful knife” claims in the Gray case.

Here’s just one example, in which the first charge states that the defendant, Tyrell Siler-Moore, “… DID WEAR AND CARRY A SPRING ASSISTED KNIFE, A DANGEROUS WEAPON, CONCEALED ON AND ABOUT HIS PERSON.”

Tyrell Siler-Moore

Clearly, if Mosby believes that possession of a spring-assisted knife is sufficient basis to bring a prosecution by presumably skilled and capable prosecuting attorneys, it is surely sufficient as a matter of law for a police officer’s reasonable perception of probable cause for an arrest.

As promised, here is the entire defense motion in limine on this issue, including the attached examples of Mosby’s continued prosecutions of “spring-assisted knife” cases:

–-Andrew, @LawSelfDefense

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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Mr. Branca,

The arguments you put forward are legally compelling. Almost irrefutable. However in the Courtroom the esteemed jurist, Judge Williams I think they will not past judicial muster.

    Liberty Bell in reply to sequester. | February 5, 2016 at 5:50 pm

    This is just Cop-101. Your run from a copy and he/she will chase and detain you. Most states make fleeing and eluding a crime in itself — apparently not Maryland.

    Don’t think the law matters here. It is about “justice for Freddie Grey” — which means just pass the “rope”.

      rabidfox in reply to Liberty Bell. | February 5, 2016 at 8:53 pm

      Isn’t there a difference between ‘detained’ and ‘arrested’? I mean, if someone runs and is stopped by the cops to see why is that, in and of itself, illegal?

        Estragon in reply to rabidfox. | February 5, 2016 at 9:49 pm

        He WAS detained for running away (he was a known street dealer in a known drug-sales area), arrested for the knife.

    counsel in reply to sequester. | February 6, 2016 at 10:12 am

    This is a highly charged case governed by mob politics, not the usual standards. of legal practice in the jurisdiction. I am not an expert on Maryland Criminal practice. Some general observations:

    1. Trial judges have broad authority to determine what evidence will be admitted before their Court. Given the political climate, and the previous rulings of the present trial judge, the chances of the trial court granting of an in limine motion are slim.
    2. Appellate Courts are generally loathe to reverse such decisions. Since the false imprisonment charge has been struck, I don’t see the denial of the
    in limine motion as a wining appellate issue. It will more likely be viewed as harmless error, unless there is the Court permits gravely prejudicial testimony during the trial.
    3. The denial of change of venue is a better appellate issue. However, the denial still falls within the penumbra of the broad discretion of the trial court. Unlikely to succeed at the appellate level without a broad change in public sentiment.
    4. For Nero, the Second Degree Assault Charge is probably most vulnerable to appellate attack. Terry Stops are permissible policing. The official misconduct charges are so vague that the appellate court would have wide latitude. Under ordinary circumstances the reckless endangerment charges could be easily defeated at trial. But these are not ordinary circumstances.
    5. The order that Officer Porter must testify under “limited immunity” is more interesting. That treads on one of the most fundamental rights of the accused. If the appeals court upholds the order, prosecutors in Maryland will encouraged to furcate trials and force co-defendants to testify against each other with “limited immunity”. Potentially, unless the decision is narrowly crafted, such a decision could represent a fundamental change in criminal practice. In some states, the appellate court can choose to uphold the trial court in a per-curium order which offers no opinion — thereby tamping down any fall over effect of the decision.

      Milhouse in reply to counsel. | February 6, 2016 at 10:25 pm

      Since the false imprisonment charge has been struck

      Has it?! This is the first I’ve heard of that. It hasn’t been reported here in LI, and if true it’s surely a major part of the story so why is not being widely reported?

Cop Handbook for Baltimore. Est 2015.

Don’t risk your career and life to stop black on black crime. If residents are serious about their personal safety and property, they’ll take action and put their own lives on the line.

    Andy in reply to Andy. | February 5, 2016 at 6:13 pm

    and yeah, that’s the racist product of BLM.

    TX-rifraph in reply to Andy. | February 6, 2016 at 5:38 am

    Why would any cop in Baltimore arrest anybody without a warrant? Probable cause or proactive detention risks not only job loss but criminal charges?

    In Baltimore, an arrest without a warrant requires a very careful and detailed technical analysis of the evidence against a standard of reasonable doubt as well as the political motivations of the State’s Attorney. Probable cause is not sufficient in Baltimore.

“As with apparently any matter involving the office of Prosecutor Marilyn Mosby, even this relatively straight-forward issue of law and fact around probable cause and the knife soon became a miasma of confusion.”

Affirmative Action and its many consequences. Boston College Law School must be loud and proud of this superlative graduate. [Snickers.]

“These were primarily in limine motions, which are motions asking the court to exclude particular evidence from the trial, often because the evidence is arguably irrelevant or prejudicial.”

Since when is prejudicial evidence excluded? I have heard judges say: “Counsel, I would hope that all the evidence your opponent offers is prejudicial to your client.”
The standard usually is “unduly prejudicial,” which, of course, results in great discretion being given to the trial court.

    Rick in reply to Rick. | February 5, 2016 at 8:10 pm

    Maryland’s standard for exclusion of relevant evidence is set forth at the bottom of paragraph 5 of the subject motion in limine. “The danger of unfair prejudice” is one of the factors that can be considered and weighed by the court, according to those papers.

Thanks for the update and analysis Mr. Branca

I’m not too sure Mosby wants the knife to ever be examined anyway . The way I read that ordinance 59 _22 any knife that had a spring to assist open or closing was illegal. That is just about every knife that opens. It appeared to be very broad. I’m sure she would get someone to try to get the jury to believe it was only referring to what manufacturers consider a switchblade.

Mr Branca ,it appears that the prosecutors want to put the probable cause theory to the jury. Would that not be a judges ruling.? It would seem that probable cause would be based more on case law and statute and would be a judges decision
as opposed to the finding of fact by a jury.Most arguments I have ever heard of for probable cause, was in inadmissibility of evidence as opposed to a false arrest claim. I also noticed that Illegal arrest as a charge is in all Mosby’s public statements, but I have never actually seen it listed as a charge. Could this be the misconduct charge?

“In addition, even if it turned out that the knife was legal, the issue here is not whether the knife was in fact legal but whether a reasonable officer might have perceived the knife as being illegal at the time the arrest decision was made.”

This is a curious standard. Police officers are trained in the law that they will be enforcing (or at least they should be). So any (trained) “reasonable” officer should know a legal weapon when he sees one.

Put this shoe on the other foot – is it an excuse for the “reasonable” citizen to carry an illegal knife because it seems as if it’s legal? In Seattle, there’s a blade-length limit on folders, but all fixed-blade knives, even those half folder blade-length limit, are illegal. Would a citizen be excused for presuming a knife half the size of a legal knife is also legal? No, he would not be. He’d be told “ignorance of the law in no excuse.” Unless you’re a cop or judge, in which case ignorance of the law is the only thing that excuses the mistakes they make. (To paraphrase Lysander Spooner.)

    Might be a solid counter-argument if the prosecution wasn’t also demonstrating their confusion over the law by charging people for carrying the sort of knives they claim the police erred in claiming were illegal.

Daveginoly , I can see a situation where minor variations between operating systems of different varieties of knives and different manufacturers could cause judgement calls between an officer on the street and what a court may find. I believe that is why the ordinance was drawn broadly. I’m sure manufacturers will make slight modifications that may fit the letter if the law but violate the spirit. The intent of the law to ban a quick opening knife that can be operate with one hand.

    DaveGinOly in reply to dmi60ex. | February 6, 2016 at 11:58 am

    What is it about an operating system that makes one knife more dangerous than another? Nothing. The law is foolish, and that’s why there’s difficulty enforcing it. Legislators and city councilors define “crimes” by technical niceties that have nothing to do with the actual use of weapons against innocent people (i.e., actual crimes), while at the same time ham-stringing law abiding people in their ability to defend themselves.

    If manufacturers make knifes that confuse trained law enforcement officers, how are citizens supposed to know whether or not the knives they carry are legal? Is it the law or the knives that are too complex? No matter which, if it can be demonstrated that the police are confused about the legality of some knives, why is it that citizens are expected to know with certainty what is legal and what is not?

    It was not my point that police shouldn’t be confused about the law. My point is that if trained personnel, dedicated to enforcing the law, are confused about the law, how can government expect lay people to understand it? How can citizens be held to account for laws that the police don’t understand themselves? It’s reprehensible double standard, used, as always, against citizens and in favor of government and its agents and officers.

Sorry operated with one hand.

Not sure if I completely understand the prosecution here. They seem to be arguing that Gray was arrested too early, before there was probable cause (in the discovery of the illegal knife under Baltimore law). As I saw it, the cops developed a reasonable suspicion because Gray ran from them when he saw them. They gave chase, and caught him, because they were on bikes, and he was on foot. That was when the confrontation moved into a Terry stop, and Gray was frisked to check for weapons to protect the safety of the officers before they interviewed him. But, that was when they discovered the knife, or, maybe before that by sight. And, once the knife had been found, there was probable cause for the arrest. Which means to me that the prosecution is probably complaining about the Terry Stop temporary detention, and asserting that that was when the actual arrest occurred. The problem for me is that this is where cops routinely fudge things, with the connivance of prosecutors, and, maybe even judges. What is usually reality is that this part of the process isn’t questioned too closely if an actual arrest is made, unless it was pretty egregious, and if no arrest is made, then no harm, no foul. The prosecutors therefore seem to be cracking down on a part of the arrest process where they usually ignore irregularities. Rationally, they should be worried that they might set some precedent that could make future prosecutions of criminals more difficult.

Any help here would be appreciated.

    counsel in reply to Bruce Hayden. | February 6, 2016 at 4:24 pm

    No real precedent here. Defense lawyers routinely get charges dismissed based on the lack of sufficiency of the evidence. However, punishing a law enforcement officer, who made an arrest in good faith, is virtually unheard of.

    legalbeagle in reply to Bruce Hayden. | February 6, 2016 at 4:42 pm

    The prosecutors need not worry. Defense counsel is always free to challenge the probable cause necessary to proceed to trial. But it stops there.

    Defense counsel does not control police discipline or prosecution. Civil lawsuits are reserved for only the most egregious cases. Police Officers are shielded from lawsuits by a doctrine known as qualified immunity”. It is difficult to overcome.

    The prosecutor and the prosecutor alone, at (with her Federal colleagues), not the Defense attorney or civil attorney, control the prosecution of police officers. Police Departments control the internal discipline of police officers.

Richard Aubrey | February 6, 2016 at 12:13 pm

Couple of questions: Presume the defense can show prosecutions for the same or similar knives in Bmore currently or recently. Would this be admissible?

Many folding knives allow, by virtue of the shape of the handle which allows enough of the blade back to be gripped thumb and forefinger, with a stud on the blade toward the hinge, to be opened rapidly with one hand, even in the pocket. The lockback can usually be worked with the thumb in one hand so it can be folded with one hand.
Is this kind of knife a problem in Baltimore, or any other jurisdiction?
It might take a couple of seconds if you’ve practiced, but if you’re doing it in your pocket while distracting with voice or your other hand or something, it would have the same effect as comping out with something that goes “Snap” all dramatic and stuff.
One I saw was a promotion piece at a convention. Must have been a couple of hundred of them.

The Baltimore City State Attorney Office is not pursuing justice. Police are authorized to make a warrantless arrest under Maryland law.


Md. CRIMINAL PROCEDURE Code Ann. § 2-202 (2015)

§ 2-202. Warrantless arrests — In general

(b) Probable cause to believe crime committed in presence of officer. — A police officer who has probable cause to believe that a felony or misdemeanor is being committed in the presence or within the view of the police officer may arrest without a warrant any person whom the police officer reasonably believes to have committed the crime.

Joseph Harvey’s defenders here say it was irrelevant that he threatened Detective Joseph Walker. It was irrelevant that Harvey and his fellow racist Adam,got out the van with the intent to harm a Black person who didn’t harm them.
And justice for all.

Tyler Testerman can shoot a Maryland LEO in the face. He doesn’t end up in a police van with his spine severed.
And justice for all.

    Milhouse in reply to m1. | February 6, 2016 at 10:14 pm

    Tyler Testerman was arrested, just like Freddie Gray. He was transported in a police vehicle, just like Freddie Gray. What do you allege was done to Gray that wasn’t done to Testerman? That Testerman wasn’t injured may be due because freak accidents don’t happen every day, or it may be because he didn’t throw himself around the vehicle deliberately trying to injure himself.

Why is the “legality” of the arrest an issue at all? Didn’t the police have sufficient probable cause to arrest Mr. Gray on a “disorderly conduct” charge?


The” legality” has come in because it is the only way Mosby can gin up charges against Nero, Miller and Rice. Since the prosecution has admitted that Freddie was injured after the interaction with these three ( after second stop)then Mosby would have had to explain why she was only charging the AA officers.In the Social Justice world that’s a no no. There is video and it is apparent that Nero ,Rice and Miller did not use excessive force. She is trying to say it was excessive , because they should never have touched him to begin with .
I have become more and more beginning to believe this whole fiasco is merely designed to get BPD to back off policing of the protected criminal class and get Mosby’s Husband elected mayor. This could also explain the zeal to delay ( Election end of April. )

Just more proof of how incompetent the States Attorneys office in Baltimore has become.

I don’t get it. Why is the defence trying to exclude evidence of the knife’s legal status? If the knife is in fact illegal in Baltimore, then surely the defense should want that evidence presented, if only so the judge would be reduced to asking the prosecutors in open court “WTH were you thinking?”.

My quess is that the knife is spring loaded and illegal under the law , but the testimony of the expert may introduce doubt in the jurur’s mind. Keep in mind, the prosecution ,,since they have nothing,have been the ones who have been working to introduce doubt. I read elsewhere a member of the court ( not sure what court) determined the knife was illegal. So to allow argument and expert opinion would jus dzt muddy the issue.

Char Char Binks | February 7, 2016 at 3:51 pm

I know a LEO in my mid-sized midwestern city, one well-knonw as a lefty bastion, and she says they send black cops whenever they can if they know a disturbance involves Blacks, as they often do, even though Blacks are a relatively small minority here.

Char Char Binks | February 7, 2016 at 3:55 pm

The prosecution isn’t really making any arguments at all, only a bunch of words that SEEM like arguments, reminiscent of the playground conflicts of children.

Char Char True and her arguments contradict one another. By the time Mosby gets thru 3: trials ,she will give enough evidence to exonerate the other
three. The prosecution admitted in Porters trial that Freddie was up beating around at the second stop so this is an admission that the First three arresting officers did not hurt him. This trial makes no sense. The evidence leads to only two possible scenarios. Either Freddie hurt himself one or Goodsen braked hard on him( which is possible but no evidence). A large portion of the van ride was covered by surveillance cameras and I have not heard of any erratic driving ing.