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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