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Freddie Gray: Officer Nero trial starts May 11 on novel prosecution legal theory

Freddie Gray: Officer Nero trial starts May 11 on novel prosecution legal theory

Can officer be prosecuted for good faith arrest just because later it’s determined there was no probable cause?

The second of the Freddie Gray trials is scheduled to being this Wednesday, May 11, this time of Police Officer Edward Nero, one of the three officers involved in Freddie Gray’s initial stop and arrest.  Nero was charged with second-degree assault, two counts of misconduct in office, and reckless endangerment.

Nero is being tried on charges of second-degree assault, two counts of misconduct in office and reckless endangerment.

All the parties involved remain under a gag order imposed by trial Judge Barry Williams (transparency, much?). Nevertheless, news reports are indicating that the prosecution has essentially conceded that they’re simply making up the legal theory under which they are bringing Nero’s prosecution.

The Baltimore Sun uses the phrase “novel legal theory” to describe the State Attorney Marilyn Mosby’s prosecution of Nero, which is simply a more polite way of saying “they’re making up the law as they go along.”

The actual law in question is well-established, and applied in the same manner at all levels of law enforcement in the United States:  when an officer has a good faith belief there there exists probable cause for an arrest, he is not subject to criminal prosecution if it is later determined by prosecutors or courts that probable cause was, in fact, lacking.

Indeed, it is routine for arrests made in good faith to later be determined, after deliberate examination, to lack probable cause. Back in the days when the Baltimore PD still made arrests in meaningful numbers as many as one-third of these arrests were routinely dismissed afterwards for lack of probable cause.

This is not surprising. After all, police officers are not professionally trained in the law to the degree that prosectors and trial judges are so trained, nor do they have an open-ended time frame in which to make a probable cause determination.

In such cases where probable cause is later found to be lacking the criminal charges are dismissed, and the arresting officer might theoretically be subject to departmental discipline (although in my experience this is rare, absent egregious misconduct or stupidity in making the arrest).

There is no American jurisdiction, however, in which an officer who in good faith made an arrest later found to lack probable cause is subject to criminal prosecution.  Given that in recent Baltimore history as many as one-third of police arrests were dismissed for lack of probable cause, this theory would mean that a huge proportion of the department was subject to criminal prosecution.

Who knew? Nobody knew. Because this is simply not the law.  Not in Baltimore. Not in Maryland. Not under federal law.

Indeed, the Supreme Court has explicitly addressed this issue on more than one occasion.  One such case, Illinois v. Wardlow, closely parallels the circumstances of Freddie Gray’s arrest, including taking place in another paradise of Blue-state governance, in Wardlow’s case in Chicago.

Readers will recall that Freddie Gray’s arrest was initiated when Gray, a known drug dealer in a neighborhood specially targeted for illegal drug enforcement, fled police (including Officer Nero) upon the officers merely  making eye contact.  Wardlow was arrested by Chicago PD Officer Nolan under nearly identical circumstances.

As noted in the opening paragraph of  Wardlow, written by Chief Justice Rehnquist:

Respondent Wardlow fled upon seeing police officers patrolling an area known for heavy narcotics trafficking. Two of the officers caught up with him, stopped him and conducted a protective pat-down search for weapons. Discovering a .38-caliber handgun, the officers arrested Wardlow. We hold that the officers’ stop did not violate the Fourth Amendment to the United States Constitution.

Rehnquist writes later in the opinion (citations removed for ease of reading):

Nolan and Harvey were among eight officers in a four car caravan that was converging on an area known for heavy narcotics trafficking, and the officers anticipated encountering a large number of people in the area, including drug customers and individuals serving as lookouts. It was in this context that Officer Nolan decided to investigate Wardlow after observing him flee. An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.  But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a “high crime area” among the relevant contextual considerations in a Terry analysis.


In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight–wherever it occurs–is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.


[U]nprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.

Interestingly, the State’s theory of the case has necessarily re-focused attention on the legality of Freddie Gray’s knife.  Readers familiar with the Gray case will recall that prosecutors originally argued that Gray’s arrest for possession of an unlawful knife was improper, because Gray’s knife was (they claimed) legal under Maryland law.  Indeed, they originally charged Nero and other officers with the crime of false imprisonment, on the basis of this purported illegal arrest premised on a “legal” knife.

Prosecutors were to abandon the false imprisonment claim, however, for reasons unexplained but not difficult to discern. First, it was irrelevant that the knife might have been illegal under Maryland state law, because Gray was not charged with violation of a Maryland state statute–he was charged with violating a Baltimore city ordinance, which has its own broader definition of what constitutes an illegal knife.  Second, after close study the Baltimore PD itself concluded that Gray’s knife was in fact illegal.  Third, even months after Gray’s death Mosby’s office itself continues to prosecute illegal knife cases where suspects were found to possess knives of the same type as Gray.

We covered these issues in detail previously here at Legal Insurrection:

Freddie Gray Defense: Legally irrelevant whether Freddie’s knife was illegal (February 5, 2015)

Freddie Gray’s Knife – Why is Prosecutor Claiming Unlawful Arrest? (May 2, 2015)

Confirmed – Freddie Gray’s Knife WAS Illegal (May 5, 2015)

With the argument that “Grays knife was legal” having not a leg to stand on, prosecutors abandoned that line of argument.

In targeting Officer Nero with this “novel” interpretation of probable cause law, however, they run into a dilemma raised by the Supreme Court’s Wardlow decision.  On its face, Wardlow would appear to bar the State’s legal theory outright.  But apparently State prosecutors believe one bit of dicta will save them.

There, Rehnquist wrote:

Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way. But in this case the officers found respondent in possession of a handgun, and arrested him for violation of an Illinois firearms statute. No question of the propriety of the arrest itself is before us.

(emphasis added)

As a result, the State finds itself needing to once again argue, rather inanely, that Gray’s knife was lawful after all, in order to distinguish Gray’s arrest from the Supreme Court’s legal decision in Wardlow.

And the Mosby Prosecutorial Circus continues unabated.

–-Andrew, @LawSelfDefense

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Ah, but Mosby made a public promise to prosecute these cases on behalf of Freddie Gray. This is the same type of rush to judgment and political grandstanding by a prosecutor that eventually led to the disbarment of Mike Nifong.

To be fair, Mike Nifong gave a lot more interviews than Mosby, and Mosby at least can be said to have the motivation to quell rioting in her city.

I wonder where the term “novel legal theory” came from? If it came from a reporter, it is meaningless. If it came from a lawyer involved in the case, it means “possibly sanctionable,” or more concisely, “BS.”

    JackRussellTerrierist in reply to Valerie. | May 8, 2016 at 7:50 pm

    And let us not forget that Mosby’s lead investigator was a dude who got canned by BPD for nutting up and going berserk (with a firearm) shortly after he’d been caught forging arrest records for his beat.

Free State Paul | May 8, 2016 at 3:15 pm

OT, but if Hillary wins in November, I expect another run on semi-automatic guns and ammo like in 2008. Start shopping now!

legacyrepublican | May 8, 2016 at 3:21 pm

This may seem like a silly question at this point, but what is the probable cause to prosecute these officers?

    She’s the correct ethnicity, and she’s in the “applicable ethnic context.” She don’ née no f’g prbla ‘cuz.” “Ah, can do wha eva ah wants.”

    Ragspierre in reply to legacyrepublican. | May 8, 2016 at 4:12 pm

    No. That’s really quite a good question!

    The answers range from the flip: “Fred’s dead”

    To the more serious legal question: in the instance of several of these officers, there IS no probable cause to prosecute that has been articulated by the prosecution that I know about.

    Char Char Binks in reply to legacyrepublican. | May 8, 2016 at 5:36 pm

    Each officer was in possession of a handgun.

Hopefully she will be disbarred so she can pursue a career path more in tune with her abilities.

    Marcus in reply to Old0311. | May 8, 2016 at 5:44 pm

    How about the EEOC hire as greeter at Walmart. LOL LOL LOL

    Gremlin1974 in reply to Old0311. | May 8, 2016 at 6:50 pm

    While it gives me a warm fuzzy feeling it is highly unlikely.

    JackRussellTerrierist in reply to Old0311. | May 8, 2016 at 7:35 pm

    The difference between Mosby and Nifong is that she’s black and he isn’t, and it’s MD, not NC. Mosby will never be disbarred for this. Proof of that is that she has been allowed to get as far with this as she has with the court.

    There should be a special prosecutor appointed in this case just as there was in the Duke lacrosse case, but that will never happen.

What a tragicomic farce these Gray prosecutions are. One is tempted to laugh at the absurdity of it all, were the implications not so serious, for the police officers charged, for rational thought in America, as well as what remains of sound jurisprudence, untainted by the bias and venom of the Left’s “social justice” political agenda.

    daveclay in reply to guyjones. | May 10, 2016 at 8:24 am

    These trials are not about meting out justice to these specific police officers. They are a warning to all police officers that if you take action against certain protected members of the public, the power of the state will be arrayed against you, even with no legal basis, to ruin your professional reputation and to destroy you financially.

stevewhitemd | May 8, 2016 at 5:35 pm

I have to say, from reading Andrew’s superb reports, that the city prosecutor has yet to articulate a case, probable case, and legal theory to justify the prosecution.

I also think that Baltimore cops will vote with their feet if these officers are convicted: they’ll leave the police force and go elsewhere. A good cop can usually find another job somewhere doing police work. The cops who remain on the Baltimore force may well decide that aggressive policing isn’t a smart move and just hold back. The public will suffer, Mosby will sputter, and Baltimore will continue its decline.

Jason Boisvert | May 8, 2016 at 6:17 pm

So 33% of cases dismissed as groundless arrests are not enough to bring the department into question. What rate of groundlessness would be enough to justify saying “This PD is doing something wrong?”

Can officer be prosecuted for good faith arrest just because later it’s determined there was no probable cause?


The knife is a “red herring” for the masses, because 99.99% of the population is going to listen to the DA and say “oh, the knife was legal, so the arrest must have been a ‘false arrest’ and the officers should be liable for everything that happened afterward.” It’s an attractive thought, even though it’s legally VERY badly flawed.

Nero is being tried on charges of second-degree assault, two counts of misconduct in office and reckless endangerment.

Short version of this is as follows:

The burden level is “reasonable suspicion” to initiate a stop, and Probable Cause to make an arrest. The OFFICER doesn’t have to be right that Probable Cause exists (that’s for a JUDGE to decide later), but merely has to have a reasonable belief that Probable Cause exists.

IF the officer can engage a “Terry Stop,” the action of touching no longer qualifies as “battery” (even if offensive or injurious) because it is authorized by color of law. Poof: away goes the Assault and Reckless charges.

Types of Misconduct. Misconduct in office is a general term which refers to three types of offenses. Specifically they are: malfeasance — an act which is wrongful in itself or which should not be done at all; misfeasance — an act which is otherwise legal but performed in a wrongful manner; and nonfeasance — the omission of an act which is required by the duties of the office.

The they’ve got a shot at misfeasance (as the arrest was legal, but the argument is that it was done in a wrongful manner) OR nonfeasance – being that the officers failure to secure Gray was somehow a required duty of the office.

They’re NEVER going to get there. A Jury is going to see through their BS, if the officers have any sort of decent attorneys.

Gremlin1974 | May 8, 2016 at 6:54 pm

I give it one or two more of these cases being unable to convict any of these cops of even a single crime before they are quietly dropped.

This Judge should be impeached for allowing it to go this far.

    Char Char Binks in reply to Gremlin1974. | May 8, 2016 at 10:01 pm

    No, the process is the punishment, and Mosby will punish the officers as long as she can.

      I doubt Mosby cares much at all about the officers personally. It’s very much analogous to how psychopaths don’t really care about their victims. What Mosby gains is not punishment of the officers (which, while mistaken, would be rational if she herself believed her false narrative), but rather fungible political capital that she can expend in other forums–e.g., for her husband’s run for Mayor.

      Again, it’s much like a psychopath who desires to make a purse out of human flesh. Sure, she kidnaps and murders human victims, but she hardly thinks about them at all. They’re merely a resource she needs, like some kind of domestic animal, to accomplish her actual goal.

      That AWESOME purse.

      –Andrew, @LawSelfDefense

        JasonJay in reply to Andrew Branca. | May 8, 2016 at 11:59 pm

        Vividly expressed evaluation, Andrew.
        Now that Robert Connoly seems to be getting a little fuzzy in his character narratives, maybe you should think about stepping in with your own cop-lawyer novel.

        Gremlin1974 in reply to Andrew Branca. | May 9, 2016 at 4:18 am

        I never thought about looking at it using the lens of my psych background but you make a lot of sense.

The intimidation factor on the police force is most likely the reason.

The Baltimore Sun reported that Nero is going to request a bench trial.
I would not want to be in his shoes with this judge .
Perhaps he knows that the judge will have rule based on the law where one jurer may hang the jury.
If he does then we will at least get verdict.
The Sun was basing this on lack of preparations and activity concerning jurors .

The other option could be Mosby may be pulling another stall .
Probably going in demanding that Rice testify against Nero too, he was there.

    I think Nero going for a bench trial is the right move.

    He’s the first WHITE COP who KILLED FREDDIE, and he would otherwise be in front of a jury that will include several black members of the Baltimore community, each of whom would have to go home and fear execution if they voted for acquittal. So, acquittal by a jury is simply not on the table.

    Before the judge, who does NOT live in Freddie Gray’s neighborhood, the facts will have to be aligned with the actual law. So, legal decisions will be made. And legal decisions are ripe for appeal to higher courts.

    So if Nero goes bench he either gets acquitted on the merits, or he gets convicted by Judge Williams on the law and has an immediate appeal.

    Surely the higher courts will realize that Baltimore police officers will simply stop arresting ANYBODY if they know they face criminal conviction if a prosecutor downstream decides their perception of adequate probable is defective.

    Or the higher courts won’t. And we can change the name of Baltimore to Mogadishu. 🙂

    –Andrew, @LawSelfDefense

      You aren’t giving Mogadishu enough credit.

      I would say we can change the name to Tortuga, circa 1640. The locals will develop into warlord communities, quickly develop their own “local code,” and those that don’t follow will be shot.

      Gremlin1974 in reply to Andrew Branca. | May 9, 2016 at 4:21 am

      “Surely the higher courts will realize that Baltimore police officers will simply stop arresting ANYBODY if they know they face criminal conviction if a prosecutor downstream decides their perception of adequate probable is defective.”

      If you look at Baltimore’s recent history since this whole thing started it looks like this is already happening to a certain extent.

      I totally agree that a bench trial is the way to go. The only downside in a bench trial is that a judge will more liberally apply the rules of evidence on the basis that he is a trained jurist who knows the law, and will be better equipped to separate the legal wheat from the inadmissible chafe. It does make the “journalist” go nuts in their reporting. (The judge allowed the witness to say ‘such and such’!!)

“Can officer be prosecuted for good faith arrest just because later it’s determined there was no probable cause?”

Has this been determined in court or just determined by the prosecutors office? Surely, we’re not willing to concede the lack of probable cause.

Baltimore fiddles while Nero burns

Humphrey's Executor | May 9, 2016 at 10:06 am

This is a show trial, pure and simple. And the Judge is in on the game. Disgraceful.

This is not a “novel legal theory”, it is an institutional lynching. And, this type of thing is extremely dangerous.

We are a nation of laws for a reason. Our criminal justice institutions are supposed to operate on the law and legal principles, not on mob rule. There is absolutely NO evidence to suggest that any of these officers did anything which directly [or even indirectly] caused the injury and death of Freddie Gray. Yet, the prosecutor, initiated prosecution and continues that prosecution in total disregard for those facts. The only criminal action, in this case, is the malicious prosecution of these defendants. But, just as in the George Zimmerman case, this will never be addressed. The system is not simply breaking down, in these cases, it is being subverted. And, it is not just restricted to the prosecutor. It also directly involves every single jurist who allows this to continue, despite the fact that absolutely NO PC exists for the charges to be brought to begin with.

And, people should not think that they are immune to this type of prosecution. It happened in the past, and this country spent 100 years squashing it. It is rising again and affecting not only LE officers, but the general public, as well [George Zimmerman again]. LE does not get to make up the laws. The courts do not get to make up the laws. And, certainly, prosecutors do not get to make up the laws. Government does not get to make arbitrary, unlawful decisions which destroy the lives of its citizens. If the government will not protect its citizens, then sooner or later the citizens will begin providing their own protection. And, if they feel that they have to protect themselves from their own government, well, that happened here in 1776. This type of illegal government action can have disastrous consequences.

Having been a police officer for the past 13 years I can tell you from experience that the DA refusing to take a case and blame it on lack of PC is not unusual. They are extremely picky and very often only take cases where they have a for sure win, hopefully with a plea deal and no trial. The DA is elected and doesn’t like there to be the opportunity to have a losing record. I have personally screened cases with video and recorded confessions, but the DA refused to prosecute because the case wasn’t sexy enough for them to prosecute. Never mind that there is an actual victim in those cases. Most DAs are not truly out for justice. They’re out to make themselves look good.

Mr Branca , you teased us a couple months ago with saying you were going to have a column that you would just goof on Mosby. I hope you were serious and I eagerly await.

I see Mosby got a one day extension for a power failure . Wonder what Thursdays excuse will be .
I’m still betting on making Rice testify too.

Char Char Binks | May 9, 2016 at 3:38 pm

About the knife, if indeed Mosby is going to argue that it was lawful, the law 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,” — Article 19, Subtitle 59, Section 19 of the Baltimore City Code.

Is she going to claim that the spring isn’t for opening and/or closing because the knife reportedly needs to be opened slightly by hand before the spring activates? Is it a matter of “opening fully” vs “starting the opening without using the spring, after which the knife is already open, so the spring has no role in opening it”? Or is it simply because that type of knife isn’t commonly known as a switch-blade? What number or percentage of people calling it a switch-blade is necessary for a knife to be COMMONLY known as a switch-blade?

I’m guessing it’s about the name. After all, what makes those knives so dangerous, and against the law, is not the spring, or even the blade, but that they are commonly called switch-blades.

    Gremlin1974 in reply to Char Char Binks. | May 9, 2016 at 4:51 pm

    Well the name ploy won’t really work since the code lists “Automatic Spring” and that is what Gray had was a knife with an Automatic Spring assist. But who knows this woman is so nuts she may well be going to try it, and I bet the Judge will let her.

      dmi60ex in reply to Gremlin1974. | May 10, 2016 at 10:11 am

      With the way the Law reads, it is so broad about any knife that opens qualifies , almost all have some kind if spring to assist opening or closing.
      My thinking , If Baltimore wants their felons to be able to carry anything , then change the law .
      Mosby is involved in Clintonesque word games

Won’t a bench trial give more latitude for appeal?

Let me give an example, in a patent case Apple vs Samsung, the jurors went home confused the first day. The next day the forman ( a patent holder ) came in with a theory. Prior art presented in the case did not invalidate the patent because it ran on different hardware. Newer mind that Samsung was accused of violating a patent on software running on a machine that used different hardware.

Because this happened in jury deliberations it could not be brought up on appeals. If it had been a bench trial, the judge would have been forced to put his different hardware theory in writing and appeals court would have thrown out the logic in a matter of minutes.

What I’m saying is that juries can sometimes bury findings of law behind findings of fact.

I don’t think there is much dispute about the facts. What is in dispute are the laws, or at least the way that the prosecution is bending the laws. So this is a trial more about findings of law. In a jury trial those can be hidden behind the jury deliberations. In a bench trial the judge is going to have to lay out his findings of law and open it more up to appeal.

Perpetrators flee (and sometimes shoot at) cops because they know that mere contact with one invites and “officer safety” frisk. Want to stop suspects from fleeing (or shooting) in at least some situations? Disallow anything found in an officer safety frisk from being used as evidence. An officer safety frisk is currently a fishing expedition. If a suspect has a bag of dope or an illegal weapon, he’s going to run because he knows that even if the officers don’t actually suspect he’s carrying contraband that they can and will frisk him, find the contraband, and arrest him for it. If suspects knew that anything found in an officer safety frisk couldn’t be used against them, they would be more likely to stand-to, allow the officer contact, and write of the loss of contraband found in an officer safety frisk as a part of doing business.

Only after an actual arrest (with its attendant probable cause) should items found in a frisk be admissible as evidence.

Why won’t this happen? Because the officer safety frisk is too valuable to police as a method of finding contraband when they otherwise don’t have the probable cause for an arrest. If officer safety were truly paramount, then the chance that an armed suspect would simply allow his firearm to be taken by permitting an officer safety frisk (knowing he can’t be arrested for it) would be recognized as a better alternative to having that same punk start a shoot-out in an attempt to avoid being arrested after an officer safety frisk discovers it, with no suspicion or cause involved.