Freddie Gray Case: Prosecutor Doubles Down On Wrong Law
Doesn’t understand difference between a “stop” and an “arrest”
This past Monday the office of Prosecutor Marilyn Mosby filed a motion in opposition to an earlier defense motion (oofah, lawyers) requesting that charges against six Baltimore police officers be dismissed, or alternatively, that Mosby recuse herself from the case.
We covered the defense motion for dismissal/recusal in detail in a previous post, here: Freddie Gray Case: Detailed Analysis of Motion to Recuse Prosecutor.
Mosby’s motion in opposition (embedded at the bottom of this post) is remarkable for a number of reasons, most substantially for it’s epic levels of projection.
In the motion’s second sentence it claims that the defense motion is “born of desperation” and “the desire for publicity,” and in the third sentence that the defense motion is “spewing invective” and “casting aspersions,” ultimately concluding that the defense motion “bounces from one ridiculous allegation to another, like a pinball on a
machine far past ‘TILT.'”
Ironically, these are all characterizations that nicely describe Prosecutor Mosby’s high-profile public reading of dubious charges–including second-degree depraved-heart murder and manslaughter–specifically and her prosecution against the six officers generally.
We covered Mosby’s public statement here, Freddie Gray Cops Charges – Justice or Political Theater?, and her consequent refusal to respond to pointed questions about evidence supporting her allegations here, More Mosby: “Evidence Cannot Be Released Before Trial”. Since then, Mosby’s office has gone even further, and is now attempting to shut up the defense by filing a motion to impose a gag order on them.
Delicious irony aside, there are two aspects of the opposition filed just two days ago that indicate once again that Mosby’s office simply doesn’t understand the law relevant to Freddie Gray’s arrest, and/or doesn’t wish the rest of us to understand it.
These aspects involve, of course, the alleged legality of Gray’s knife, and whether that knife was the legal basis for Gray’s arrest.
Remarkably, they manage to blunder on both issues in a single sentence on page seven of their motion:
Although the Application accurately points out that the knife was legal under Maryland law, it makes clear that Mr. Gray was arrested well before the arresting officers knew he possessed a knife.
(These claims are presented in abridged form in the headings below.)
“The knife was legal under Maryland law”
The blunder on the legality of Gray’s knife is particularly laughable, because it’s wrong almost certainly on the facts and most definitely on the law.
As previously noted by Legal Insurrection on May 2 (one day after Mosby’s public reading of charges) here, Freddie Gray’s Knife – Why is Prosecutor Claiming Unlawful Arrest?, and again on May 5 here, Confirmed – Freddie Gray’s Knife WAS Illegal (which reports that the Baltimore Police Department itself had determined the knife to be illegal), whether the knife was illegal under Maryland law is utterly irrelevant, because Freddie Gray was not arrested for a violation of Maryland law.
Rather, Gray was arrested for a violation of Baltimore City Code §59-22, as explicitly documented in the Statement of Charges prepared by one of the arresting officers immediately subsequent to Gray’s arrest:
Mosby’s motion in opposition was filed more than two weeks after she first publicly and mistakenly referenced Maryland law, rather than Baltimore City Code, in characterizing the legality of Gray’s knife, and yet they still can’t seem to get this simple matter right.
Color me shocked.
“Mr. Gray was arrested before the officers knew he possessed a knife.”
The second of Mosby’s blunders in her opposition motion is equally laughable in the context of what a competent prosecutor should know of the law, but perhaps a bit more subtle than the obvious jurisdictional sloppiness discussed above.
Mosby’s office claims in their opposition motion that the officers who arrested Gray did so before they were aware of his possession of the unlawful knife.
This is worthy of two observations:
First, if as Mosby’s office claims the knife was legal under relevant law (which we already know to be untrue), then the timing of when the knife was spotted would be irrelevant under the facts of this case. Thus, that Mosby’s office raises this issue is an implicit concession on their part that Gray’s possession of the knife was, in fact, illegal under the relevant law. (h/t @novaculus)
Second, it seems that Mosby’s office–as shocking as this is, considering they are State prosecutors–does not understand the difference between a police “stop” and an actual “arrest.”
We covered the distinction between a “stop,” usually referred to as a “Terry stop” or a “stop-and-frisk,” and an arrest in considerable detail here, Was Freddie Gray’s Arrest Lawful? Almost Certainly, way back on May 1, the same day Mosby publicly announced her charges against the officers. For all the gritty details, click on over–but be sure to come back.
In brief, however, a lawful “Terry stop” can be made based upon reasonable suspicion, meaning a rational and articulable perception that an individual is acting suspiciously. The precipitous flight of Gray, a known street-level drug dealer, upon spotting the police officers patrolling that high-crime neighborhood is more than sufficient to constitute reasonable suspicion.
It is legal during a “Terry stop” to handcuff the person, if reasonably necessary for purposes of safety. In Gray’s case, there was a history of arrests for crimes of violence in addition to convictions for drug dealing, thus providing a reasonable basis for handcuffing.
Both the stop and the handcuffing thus constitute a “stop” and not an arrest. The actual arrest did not come until later, after police spotted the illegal knife.
Once Gray was stopped, it was legally permissible to do a superficial examination for weapons. Usually this takes the form of a “frisk” of the person’s clothes, but in this case visual observation confirmed the presence of a knife clipped in his pocket.
Thus we have the perfectly lawful sequence of events:
(1) Gray, a known street-level drug dealer in a high-crime neighborhood flees precipitously upon observation of, and by, patrolling officers, creating reasonable suspicion.
(2) Based upon this reasonable suspicion the officers initiate a lawful “Terry stop.”
(3) During the “Terry stop” the officers handcuff Gray and conduct a visual and (I expect) physical “pat-down” search for weapons, both for the permitted reasons of public and officer safety.
(4) Visual observation reveals Gray’s possession of the knife clipped to his pocket.
(5) The officers determine that possession of the knife is unlawful under Baltimore City Code §59-22.
(6) This unlawful possession establishes the probable cause necessary for Gray’s actual arrest.
This sequence of events is supported explicitly by the arresting officer’s handwritten Application for Statement of Charges, completed immediately following Gray’s arrest and well before any of the public hubbub:
. . . Gray fled unprovoked upon noticing police presence. The defendant [Gray] was apprehended . . . after a brief foot chase. This officer noticed a knife clipped to the inside of his front right pants pocket. The defendant was arrested . . .
Indeed, even Mosby’s own Application for Statement of Charges filed against each of the officers fails to allege that an arrest was made prior to the discovery of the knife. Each of the six Applications prepared by Mosby’s office depicts the same narrative of events surrounding Gray’s stop and subsequent arrest:
. . . Lieutenant Brian Rice . . . while on bike patrol with Officers Garrett Miller and Edward Nero, made eye contact with [Gray]. Having made eye contact, Mr. Gray subsequently ran from Lt. Rice.
This is the establishment of the reasonable suspicion necessary for the subsequent “Terry stop.” Totally lawful, and no arrest yet made.
Lt. Rice then dispatched over a departmental radio that he was involved in a foot pursuit, at which time bike patrol Officers Miller and Nero also began to pursue Mr. Gray.
This is the initiation of efforts to execute a “Terry stop.” Totally lawful, and no arrest yet made.
Having come in contact with the pursuing officers, Mr. Gray surrendered to Officers Miler and Nero . . .
This is the officers successfully executing a “Terry stop” on Gray. Totally lawful, and no arrest yet made.
(As an aside, “Having come in contact with” is a delightfully understated way of saying “Having been tackled to the ground by”.)
Officers Miller and Nero then handcuffed Mr. Gray and moved him to location a few feet away from his surrendering location. . . . .
This is the officers lawfully restraining Gray and otherwise securing the safety of the scene. Totally lawful, and no arrest yet made.
Officers Miller and Nero than placed Mr. Gray in a seated position and subsequently found a knife clipped to the inside of his pants pocket.
This is the officers observing the unlawful knife clipped to the inside of Gray’s pants pocket, and thus realizing a lawful basis for initiating their lawful arrest of Gray for violation of Baltimore City Code §59-22.
All the events occurring prior to the officers observing the knife were pre-arrest, and therefore required no probable cause, but merely the much lesser standard reasonable suspicion.
All of that narrative, keep in mind, is taken from documents produced by Mosby’s own office and it utterly debunks their claim that “Mr. Gray was arrested well before the arresting officers knew he possessed a knife.”
Mosby’s Motion in Opposition to Defense Motion for Dismissal/Recusal
As promised, here’s the motion filed this past Monday in opposition to the motion for dismissal/recusal:
–-Andrew, @LawSelfDefense
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Comments
Does this woman know the definition of a hole? She keeps on insisting on digger herself deeper and deeper into said hole. If I was her, I would throw out the shovel and cut my losses. There are so many holes in this case, that a fleet of Peterbilts can drive through. I’ll bet that Al Sharpton etc are breathing down her neck to get convictions, no matter what. If the defendants are convicted, I see a huge appeal coming and the defendants will win them.
I would say she’s convinced the ones digging a hole are the defense. She is a true believer who is quite sure she is completely right.
She will be shocked when the court rules against her.
Well, that’s the thing, isn’t it?
None of this matters – even to many college ‘educated’ blacks.
They’re not only taught to have no respect for the legal system but to actively despise it.
“America’s Law is the White Man’s law – designed from the ground up to keep the Black man down!”
“A Stop vs an Arrest? Just a bunch of the White Man’s trickery!”
“A Legal vs Illegal knife? More laws written by Whites for Whites!”
That’s the attitude Black Liberation Theology teaches.
She IS the definition of a hole.
When is the motion to be argued and ruled on?
Just wondering where Mosby went to Law School … and if she was admitted with “special privileges” …
Boston College. Regrettably, Mosby doesn’t seem too bright.
Do you really have to ask? About the “special privileges” part, I mean?
Why not? I’d like to know if she was admitted based upon her LSAT scores and the like, or the color of her skin. It’s a fair question.
Did Mosby writte the motion. Her name is on it, but it is signed by Michael Schatzow.
“Thus we have the perfectly lawful sequence of events:
(1) Gray, a known street-level drug dealer”
Was he, in fact, known to these police?
“in a high-crime neighborhood”
Like NYC’s illegal “stop-and-frisk” program, being in a high-crime area is not a suspicious activity.
“flees precipitously upon observation of, and by, patrolling officers, creating reasonable suspicion.”
This is a variant of the “Refusing a consensual search is reasonable suspicion to search.” Attempting to avoid a police encounter justifies one.
“(2) Based upon this reasonable suspicion the officers initiate a lawful “Terry stop.””
By which we mean “They run him down.”
“(3) During the “Terry stop” the officers handcuff Gray and conduct a visual and (I expect) physical “pat-down” search for weapons, both for the permitted reasons of public and officer safety.”
Once they’ve got him in handcuffs, it’s no longer a Terry stop. It’s an arrest.
“(4) Visual observation reveals Gray’s possession of the knife clipped to his pocket.
(5) The officers determine that possession of the knife is unlawful under Baltimore City Code §59-22.”
Of course they did. They already had him in custody (arrested) and know needed to justify it.
Unfortunately, a spring-assisted knife is *not* “commonly known as a switch-blade knife” and does *not* fall under a plain-language reading of the ordinance.
“(6) This unlawful possession establishes the probable cause necessary for Gray’s actual arrest.”
Except the arrest happened prior to the search, unless you want to argue that handcuffing someone and taking them into custody isn’t an arrest.
You are a liar. What made you think you could get away with that here?
And totally clueless. JWB’s understanding of the law is…flawed at best. And that’s being kind.
“Because, as you point out, everyone in that category is presumed to be an offender.”
No, you lying POS. I pointed out NOTHING of the kind. And the NYC conducted NOTHING of the kind.
But when you KNOW who your offenders/predators among a population are, do you…like the TSA…do full body searches on old Lutheran men with colostomy bags?
I have to laugh at those people….they are so completely clueless and so proud to trumpet their lack of knowledge.
Kruger-Dunning syndrome.
On what basis do you accuse me of lying, Rags?
You don’t have a basis, do you? You’re just interested in signaling that you are in the majority here.
Well, THAT’s another lie.
“Like NYC’s illegal “stop-and-frisk” program, being in a high-crime area is not a suspicious activity.”
Stop-TALK-and frisk IS NOT “illegal”. You could have said a lot of things about it (“controversial”), or qualified that as an opinion, but you just lied.
NYC’s “Stop and Frisk” policy was a policy of general searches, the very thing the Fourth Amendment was intended to prohibit. The only reason “Stop and Frisk” was effective *at all* was because it was random, general searches – you didn’t if you were going to get searched by the police. That was the point.
And that’s why it was unconstitutional.
Your casual use of the word ‘lie’ is disgusting.
You are lying AGAIN.
But I will hold your coat while you dig, you dope.
JWB — whether your are lying is not the point. You are profoundly ignorant of the law. It has been settled law for almost fifty years that police officers have a right to question and briefly detain you if they feel you are behaving suspiciously. Officers may also handcuff you during the detention if they have concerns about their own safety.
I suggest you try the following experiment. Go to a high crime area. To make it interesting put on some gang colors. When you see a policeman make eye contact with him or Then start to run. When the police catch up with you, instead of cooperating start spewing homilies about your constitutional rights. You may just get a free ride!!! Enjoy!!
It’s that “behaving suspiciously” bit that’s become the problem. The 3 men casing the shop in Terry were *clearly* casing the shop. But for NYC’s program, the “suspicious behavior” was sometimes as vague as simply *being* in high-crime neighborhood.
“Reputedly”.
But see how you are NOW making an (unsupported) claim that the program was “SOMETIMES” abused. (Golly, I bet is SOMETIME does get abused, because…people.)
See how you do?
Also, it isn’t a “NYC program”. It’s state law.
http://codes.lp.findlaw.com/nycode/CPL/TWO/H/140/140.50
It’s fair to say it was made a policy in NYC to APPLY state law. And it saved thousands of lives, by all estimates I’ve seen.
Now who’s lying, Rags? That law allows officers to question people who appears to be committing or about to commit a crime. It does not authorize the wide-ranging general search that is “Stop and Frisk”.
Who’s lying? You. Again.
There was no “wide-ranging general search”, first. Little old ladies and guys in business suits were not stopped and questioned by the LEOs. Young men, principally, WERE, because they were the people in the neighborhoods who were the predators on the little old ladies.
And you go on to materially misstate the law.
1. In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer’s employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct. – See more at: http://codes.lp.findlaw.com/nycode/CPL/TWO/H/140/140.50#sthash.X3f5jMWL.dpuf
JWB, reasonable suspicion is a subjective standard. Therefore the Courts give great deference to the police officer. You may not like it, but that is the law.
“Young men, principally, WERE, because they were the people in the neighborhoods who were the predators on the little old ladies. ”
Ah yes, good point. It wasn’t truly random. Stops were decided by the target’s race, age and gender.
Because, as you point out, everyone in that category is presumed to be an offender. But the evidence uncovering rate was only 10-18%. And that’s counting contraband like decriminalized marijuana and legal knives.
Search enough people and you will find things. But that’s not a Fourth Amendment justification.
You just can’t seem to help lying, can you?
There was no such “presumption”, you lying sack of shit.
But it DOES make sense to focus on the predator population when looking for suspicious people, dunnit?
I gotta wonder if you really are bright enough to be honest. ‘Cause there sure ain’t no evidence of intelligence in your lies.
My read is JWB is too much of a dumb ass to be a competent liar. His bizarre post is most easily explained by stupidity combined with an un-American ideology.
JWB, you argue like you were a classmate of Mosby’s 😀 😀 😀 Do you intend to apply to be co-counsel AHHAAHA
JWB, this goes back to a 2000 Supreme Court decision, Illinois v. Wardlow, where the Court ruled that in that case, “headlong” and “unprovoked” flight from the police in a “high-crime” area raised enough suspicion for the police to make a stop.
The Court was a little vague about how the rule would apply in related cases, but unless Mosby wants to argue this wasn’t a high-crime area or unless there are some more recent cases that shade this, it’s hard to see how she can argue the initial chase and stop were illegal.
There’s a lot to be concerned about in the current system, where the courts lay down rules on a case by case basis that the police then follow, instead of a more systematic review, but it’s hard to see putting an officer in jail for engaging in the chase or stop, since the Court has said that’s on the correct side of the line. (IMHO, this case turns more on whether Mosby can show inappropriate levels of force or knowing indifference to Gray’s risk of death.)
Good reference. Goes to show how far we’ve strayed from Constitutional principles, though.
And at least you know how to argue. 🙂
Thanks – I think Mosby is way out of line based on the facts as we know them, but I’m not sure why everybody is so worked up.
“Mosby is way out of line based on the facts as we know them” is one reason everybody is so worked up.
If you’re unsure as to why people are in an uproar over six officers being arrested on serious charges by a race-driven prosecutor whose only goal is to ascend politically by doing the bidding of an anti-police, anti-white race-obsessed federal machine, which clearly demonstrates her complete void of credibility or integrity, then you are a serious part of the problem and your own worst enemy. Your gross stupidity is a cancer to this country.
Is jwb the greatest dumbass to grace these pages?
Why yes, I believe it is.
Actually that dubious honor goes to M1, but he is running a close second.
I have a real problem permitting the state’s agents to create a situation in which they are then allowed what would otherwise be an unconstitutional search. I don’t see an exemption for “officer safety” in the Fourth Amendment. In NYC, “stop and frisk” was used for exactly that – a premise to permit a search. If police initiate a stop, unless they have reason to believe a subject is armed, they should not be permitted to search. I wonder how the police would react if evidence of crimes turned up in an “officer safety” frisk were inadmissible in court. Why should such evidence be admissible? If there’s any question of the constitutionality of the frisk, let’s admit that it is unconstitutional, but necessary for officer safety. This would excuse the search for the sake of officer safety, but deny the state the use of the fruits of the search as a concession to the subject because the search did violate his rights. If criminals knew that articles found on them during a Terry Stop couldn’t be used against them, they may be more docile and surrender more readily to such stops and searches, and this could have a positive effect on officer safety. Why would a subject need to flee or resist in such a situation? However this idea would never fly, because the search isn’t really about officer safety, it’s about acquiring evidence, and the police would never surrender this method of acquiring evidence even if its surrender would increase their safety.
It’s my understanding that many of NYC’s Stop & Frisk encounters did not involve a frisk. If suspicious behavior that precipitated a stop was allayed through questioning such that the officer had no concern for his safety, there is no need to conduct a frisk. NYPD stats showed many stopped were not frisked.
Why would a weapon found during a Terry Stop be inadmissible? SCOTUS has ruled a frisk is permissible during a Terry Stop, so I would assume any weapons found would be admissible, if relevant to a subsequent prosecution and if the frisk were limited in scope (eg, no cavity search).
Zimmerman was handcuffed for about an hour, and kept in custody overnight, but people screamed for weeks about not arresting him, which is why he eventually got arrested.
Your that special kind of stupid, aren’t ya?
1) Gray was a frequent offender at that time, with some 18 arrests, mostly for drugs, but also some violence, over the previous 8 years. He had all ardently just done a short stint in prison (and thus possibly on probation or parole), and was apparently out on bail for more recent arrests. Maybe none of the officers on the scene knew about this before the fact, but it is going to be very hard to prove that now, since they assuredly do know now.
Running from cops is pretty much sufficient for a reasonable suspicion. You are correct that mere presence there is insufficient. But Gray did more than merely being there – he ran from the cops. Why? Well, that is what the Terry Stop was for, so that the cops could ask him why he was running from them.
2) yes – they ran him down on their bicycles. BFD. Gray had no inherent right not to be questioned if he tried but failed to outrun the police.
3) normally, you would probably be correct that handcuffing constitutes an arrest. But, sorry, not in the case of a threat to society or the officers. Policy at this point is inevitably to check for weapons first, before asking questions. The problem is that an officer needs to get in close to check for weapons, and if the suspect hasn’t been secured first, he could use a hidden weapon on the officer when he gets in close to frisk him. Officers have died this way, which is why it is often policy to handcuff before frisking, and why it is legal with a Terry Stop.
4-6) Except that your theory breaks down if the handcuffing was for the purpose of securing a suspect prior to a search for weapons, which are both allowed with Terry Stops.
Let me repeat – a Terry Stop only requires a reasonable suspicion. Running from the police qualifies for that. Before the police question someone in a Terry Stop, they are allowed to search them for weapons, in order to protect public and officer safety. And they can handcuff suspects in order to safely search them for weapons. In this permitted search for weapons, a (likely) illegal knife was found, and Gray arrested for that. The question in finding contraband during a Terry Stop is almost always when non-dangerous contraband, such as drugs, are found, and not when illegal weapons are found when legally searching suspects for weapons.
Being in a high-crime area is not itself grounds for reasonable suspicion, but it certainly may be a factor in such grounds. Ditto for running from police; in itself it’s not usually enough to amount to reasonable suspicion, but combined with other factors it often is.
Heck, even race can sometimes be a factor, not just in reasonable suspicion but in probable cause; not usually, but sometimes. For instance, if the police are looking for a black suspect in an area where there are very few black people, they can stop every black person they see, since the odds of him being the suspect are good enough; the same is not true in a city where there are a lot of black people, so the chance of any specific black person being the suspect is minuscule.
And NYC’s stop-and-frisk policy was not a general search. It was certainly not random; it applied only where the policeman had a reasonable suspicion that something was amiss. Reasonable suspicion is not probable cause; it means just what it sounds like.
Unfortunately, none of this natters for Mosby is not interested in the law, rather she is interested in her political career and, for the Left, there is no better credential than convicting police officers for they are the enemy and the criminals on the street are their friend. So what originally looked like a good political move in Mosby’s mind is now turning into a circus that will result in her taking more and more perverse positions until the case eventually comes to a conclusion with few convictions for the officers and a complete failure for Mosby. I would say that she has given herself enough rope to hang herself, but many would likely claim that a racist comment. What’s a sarcastic individual to do?
It is my feeling that Mosby will go the way that Mike Nifong went. Disbarment and a ruination of her reputation. As for reputation, that is already about 1/2 shot.
If she hangs herself it will still be called a lynching.
This miserable excuse for a prosecutor will achieve her goal and be promoted up the political ranks as follows:
Her prosecution will fail. Charges will be dropped or so diminished as to be intolerably minimal to the “black community.” The “black community” will riot. Lynch will brush Hogan aside and federalize the BPD. Mosby will have completed her mission successfully. She AND her husband will be rewarded with successful careers as a black politico rising-star power couple. They will each win every office they run for because they will have local, state and federal support for every political endeavor they undertake, with fat campaign coffers and personal wealth from smoky backroom corruption.
I don’t believe the law was ever her ambition. It couldn’t be, given her abysmal legal handling of this case. her ambitions are strictly political and her current position is her jumping off point to achieve what she and her husband really want, which is raw political power and money. They are Clinton redux, only they’re younger and using the black power structure obola established to reach the top.
This is how Politics mirrors cooking, the scum always rises to the top.
I read the State’s “opposition” yesterday, and two impressions were foremost…
1. they’re moving the goal-posts. They’re trying to deemphasize the knife, and shift to a theory where the line between “stop” and “arrest” are blurred, largely with a passing reference to the idea of “custody”.
2. this was drafted by a really non-professional Rambo. You just don’t open the ball with this kind of language. It CAN be more justified well into litigation where you have a pattern and practice of abusive conduct or misrepresentations to the Court, but not here, and not now.
It dripped with contempt.
What is the prosecutors office going to do when local defense counsel start quoting from this document to get charges against their thug clients dismissed? I wonder if Ms. Mosby is creating a legally untenable estoppel situation for her office. Let the legal tap dancing begin.
What Mosby will do when the charges are dismissed is sit back and enjoy the riots with dollar signs in her eyes.
This case is a win-win for her. If by some bizarre fluke the charges proceed in full, and she loses, she will be a political martyr rising from the ashes of the burned-out city and rise accordingly. If she wins and the officers are convicted, she wins because she is a heroine and rises accordingly. If the charges are dropped, her skin color wins as the righteous symbol of “the struggle” during and after the riots and she rises accordingly.
No matter what happens, Mosby wins and so do the feds, especially Lynch and obola.
I believe that what we are watching is an attempted coup by our black-controlled justice department of all police departments in the country to control and even thwart their ability to subdue criminal activity, including violent activity, by blacks. This is, “Whitey, shut up, pay up, and take the beating” time in their minds.
I expect the Judge to punt to save his own butt. The ruling will be, this isn’t the right court for the charges so since the officer are out on bail, I am gonna wait and let the Grand Jury decide and take no action.
IIRC part of the motion is some kind of conditions on the GJ.
Not surprising. Most experienced prosecutors would refuse to participate in writing such a brief or framing such arguments. They have argued (properly) hundreds of times to the contrary.
Negligence Defense Law firms generally won’t take plaintiff cases. Here the imperative is even greater. A seasoned prosecutor would be reluctant to misstate settled law he uses every day in Court to please Ms. Mosby.
To me it looked more like the prosecutors office flinging insults at the defense than an actual motion that should ever be before the eyes of the court.
I was struck by the lack of professionalism in this pleading, the “pinball tilt” comment for example.
I agree that someone needs to be “struck” for submitting this document.
“Thus, that Mosby’s office raises this issue is an implicit concession on their part that Gray’s possession of the knife was, in fact, illegal under the relevant law. (h/t @novaculus)”
I’m not sure I believe this. I’m not a lawyer, but I have worked a number of times as an expert witness for patent/IP cases. In my experience, both sides will often write arguments that assume that the other side’s argument is true. I’ve heard this described as “arguing in the alternative.” Now, granted, it is usually prefaced with language such as, “Even if defendant’s/plaintiff’s argument about X is accepted by the court, they’re still wrong because of Y.”
While the motion does not use such language, I think it is pretty clear that they are not implicitly accepting the defense’s argument. Rather, they are saying that, even if you accept the defense’s argument that the knife was illegal, the arrest took place before they found the knife (I agree, however, that they are confusing stop v. arrest).
With that said, I will reiterate that I am not a lawyer and even my non-lawyer exposure to the law is all civil. Others with more knowledge and experience than I are welcome to correct me.
Patent attorney, here.
One of the core requirements for any legal brief is to state the applicable law. This prosecutor has argued very publicly that the knife was “legal” under “Maryland law” while the defendants pointed out that the knife was “illegal” under a specific section of the Baltimore City code.
This is a very important issue in this case. A judge or another lawyer would expect to see a header and an argument stating why the Baltimore code is inapplicable, or why the knife is not “illegal” under the Baltimore code.
The cops didn’t even make a stop. Remember, Gray “surrendered” after coming “in contact with” Rice and Nero.
Miller, not Rice.
The language makes it sound as if Gray initiated, or at lease consented to, the stop, which is ridiculous. He was chased, and force, or the threat of force, was used against him. There can be no consent under duress.
“It is legal during a “Terry stop” to handcuff the person, if reasonably necessary for purposes of safety. In Gray’s case, there was a history of arrests for crimes of violence in addition to convictions for drug dealing, thus providing a reasonable basis for handcuffing.”
Does the fact that the police needed to chase and then tackle Gray further support the reasonableness of their cuffing him for purposes of safety?
Yes, I would have cuffed him while I figured out why he ran in the first place. Flight risk and officer safety.
He could have run cause he had a gun which could still be on his person.
And I was taught in the academy that an officer only starts a search AFTER the suspect is restrained. That doesn’t happen all the time, but in this case it should.
Then at what point does a stop become an arrest, if not “Handcuffed and held by police”?
THIS is the question you SHOULD have asked above, instead of showing your ass by saying it WAS an arrest.
Isn’t it…???
Er….when they say ‘you’re under arrest’ and they read you your rights?
So the officer can stop you, handcuff you, and detain you indefinitely on the “reasonable suspicion” of Terry, without ever risking turning it into an arrest? Can they take you into custody and bring you to the police station without making it an arrest?
‘So the officer can . . . detain you indefinitely on the “reasonable suspicion” of Terry, without ever risking turning it into an arrest? Can they take you into custody and bring you to the police station without making it an arrest?’
JWB: Which of those events happened in the case being discussed?
No, not indefinitely. As soon as they’re sure you’re not going to attack them they have to uncuff you (if they did), and as soon as you’ve identified yourself and answered their questions (or declined to do so) you’re free to leave. If they prevent you from leaving, that’s an arrest, and if they do it without probable cause they are breaking the law.
At the point there exists probable cause for an actual arrest.
When does a stop become an “arrest”? A stop becomes an arrest when the police officer says “You are under arrest”. In some circumstances a stop becomes an “arrest” when the detention extends past the time necessary to complete a brief investigation.
In Texas, there is no such thing (last time I researched this) as a “formal arrest”.
There is a considerable body of case law on the matter. A LEO can announce to gawd and all the world “You are under arrest”, and it still may not be so in Texas.
As you note, there are several incidents of arrest that have to be weighed.
You are correct. It is technical and complicated. Even a prolonged investigative detention based on probable cause may not be considered an arrest. But for purposes of self incrimination a key ingredient is whether on is in “custody”.
If you are from Texas, and do any criminal law, take a look Salinas v Texas 12-246 US.
I’m aware of at least one case in which a Terry stop was deemed lawful even though it went on for some 18 hours.
As you might imagine the circumstances were unusual. And sufficiently gross that I”m disinclined to detail them this close to dinner time. Most of these very lengthy Terry stops involve border crossings and drug smuggling,
Most Terry stops are only a few minutes.
Of course if they result in an arrest, you’ve transitioned to a whole other ball game.
–Andrew, @LawSelfDefense
Generally speaking you’re under arrest if your contact with an LEO in the totality of the circumstances reasonably leads you to believe you are not free to leave. But there is a huge carve out for Terry stops, considered to be detentions for the purpose of investigating circumstances that create reasonable suspicion of criminal activity. So you can be detained for the time reasonably necessary to investigate, which means first securing the suspects and the scene for the officers’ and the public’s safety and to preserve evidence. However much longer detention is “reasonable” depends entirely on the circumstances.
18 hours!!! On the other hand, I recall a case recently where 10 minutes was considered too long, because the reasonable investigation didn’t take that long.
When you are charged with a crime? Not sure, not being an expert on criminal law . . . .
When the prosecutor decides to charge you is the short answer. Cops don’t actually make charges, they have to articulate the reason for arrest by stating the laws they believe that you violated, but they don’t actually levy charges, that is the job of the prosecutors office.
This is how people can be arrested and be released without being charged and then charged later.
I’m not quite as confident as I was last time, but as I understand it, a “stop” is basically detaining someone for no more time and with no more force than is required to ask them a few questions.
Time: so, for example, if a stop were justified, you could pull someone over and ask them who they are, where they were going, etc. (but I don’t think they have to tell you!), but you couldn’t keep them for half an hour while you investigated them.
Force: you can only use the force required for your safety under the circumstances, not the level of force you would use with an “arrest.” So if the police yelled at Gray to stop and he stopped, raised his hands, and indicated that he would comply, it would be a much harder argument to say that they could handcuff him without the probable cause to arrest. But if it’s true that they had to tackle him, chances are they will be able to show that handcuffing him was the best way to perform a search for weapons.
If Mosby could show that Gray clearly surrendered and was complying, then you’d have to do some legal research, but my bet is that the handcuffs are OK too, and we’re back to how much force did they use and did they ignore Grey’s pleas for assistance.
It is somewhat ironic – theoretically, chasing, tackling, handcuffing and searching Grey is just for the purposes of questioning him, and he doesn’t even have to answer the questions! They’re still not searching for evidence (theoretically) – just securing the scene for their own safety.
But those are the rules the Court has laid down, so it’s not surprising that those are the rules the cops follow. Again, it’s hard to imagine putting someone in jail unless there’s more. It would be more productive to put together a commission to review whether Baltimore wants to change its policies on investigative stops. Then the city could balance the risk of letting drug dealers flee from police versus the risk of citizen friction and events like this one.
My guess is that few members of the BPD are chasing down fleeing drug dealers or anyone else these days.
When your told you are under arrest or when transported to jail/booking and charges are filed. No you can’t be held indefinitely under terry, but a brief reasonable detention to conduct and investigation is allowed. time periods will change depending on what crime is being investigated. For instance if I see someone who i believe has a warrant I can sot them ID them and run them for warrants that will take far less time then if someone is stopped for being a suspect in say a robbery or shooting.
This is a good point. Terry Stops are an exception to the usual arrest law. Traditionally, the line has been when the police prevent you from leaving, etc. Of course, if you don’t ask to leave, then your sticking around is voluntary… And, part of the reason why this is critical is that this is when Miranda, et seq. kick in. If you want to leave, and are prevented from doing so by the police (absent an exception like a Terry Stop), anything that you say between that point and when you get your Miranda warnings, etc. can be suppressed, and, anything that comes out of that possibly too (fruits of the forbidden tree, or something like that).
The problem is that taken to a logical extreme, this would neuter/emasculate the police. When someone didn’t want to talk to the police, they could just ignore them, knowing that the cops stopping them would constitute an arrest, which would, at that point, typically lack probable cause. The police need to be able to briefly question suspects in order to do their job. Too long, and it turns into an illegal arrest. But, the courts allow the police to briefly detain people in order to ask them questions and the like. The stops though have to be reasonably brief (recently, courts have found that extending traffic stops long enough to get dogs there for a quick sniff is not reasonably brief, etc.) And, yes, after some officers were injured or killed during these brief stops, courts allowed the officers to make sure that the people being briefly questioned were unarmed. And, yes, with some more officer injuries or deaths, they extended this to allowing the police to temporarily handcuff the people that they had a reasonable fear of being dangerous when they were searched for weapons, and also to prevent escape during the brief questioning.
The key point here is that the reason that a Terry Stop, and esp. being handcuffed during such, is not an “arrest” is that the Terry Stop has to be reasonable and brief.
In short, Yep, you betcha.
I have a CCW and have been stopped with my weapon on me several times over the past 20 years and not a single one of those times has a cop ever disarmed me or handcuffed me. However, I also have never run like a scalded dog upon sight of the cops.
Terrific. Now I have this image of Mosby singing like Dianah Ross, “Stop, in the name of law.”
I can visualize this because Mosby is supremely wrong!
“ultimately concluding that the defense motion “bounces from one ridiculous allegation to another, like a pinball on a
machine far past ‘TILT.’””
Is that really legal talk?
right, and not even accurate, when it comes to pinball machines. The balls don’t bounce much at all once you go a even a little past tilt. Everything turns off and they go down the drain.
The attorney is clearly a graduate of the Ben Rhodes School of Creative Writing. /s
JoAnne, it’s probably the best the poor Bimbo can do, so I for one will not judge her too harshly 😀 😀
I can just see a judge responding: in my youth, I spend time between college classes playing pinball. Next time the prosecution makes an analogy in a pleading, they should get the analogy right. Too bad Alex Kosinski isn’t writing it, would have been quite funny.
I’ve read briefs like this, before. This brief was not written to persuade a judge, but to satisfy a client. In my experience, bluster is a strong indicator of a weak legal position.
It is much easier to write a rational, persuasive brief when your client has a decent legal argument.
The conflicts sections of this brief are not structured to address the issues raised by the defendants. For just one example, the response to the open and obvious conflict the prosecutor has, based on her marriage to a city council member, is a statement asserting essentially that this is a legitimate lawsuit. So? The propriety of a lawsuit based on the facts-in-issue has nothing to do with resolution of a conflict of interest on the part of one of the attorneys.
My recollection is that the argument was, the lawsuit cannot be illegitimate or else all lawsuits concerning that section of Baltimore would be illegitimate from that prosecutor, an absurd situation, obviously proving the lawsuit is legitimate. Or so it was argued.
It’s pretty thin stuff..
There was some kind of purge at the DA’s office once Mosby took over.
I notice that Schatzow signed off on the brief rather than Mosby. I wonder if Mosby dictated a general outline of the response. Schatzow thought the arguments were crap, but was too afraid to say so. So he wrote it up, but without much enthusiasm.
It seems Mosby is all about star power, appealing to the public through Prince and Vogue, while sloppily performing her real job. If it is not sloppiness, then she has broken her oath and sold out to the BGI road to the top. Or it could be both.
It all emanates from the Black Panther, Marxist liberation theology sect of the PC religion, in my view. Trayvon, Brown, Garner and now Freddie Gray, are their recently martyred saints. Riots, looting, and wrongful police prosecutions are their forms of worship. As Obama has prophesied, “(racist) cops act stupidly”, and the MSM zealously shouted “AMEN brother”.
While there are blacks with political star power earned by real accomplishment (Condi Rice, Clarence Thomas, Thomas Sowell), the Democrat stars all seem to be members in good standing of the Black Grievance Industry, the easier path, and apparently prerequisite for Democrat advancement.
I think a better term is the Progressive Fascist religion. This is a group who pretends to be liberals and progressives while seeking to establish their utopia. A utopia where they rule a one party state and thru it control every aspect of society. This utopia is in every significant respect identical to that created by the Communists and and Nazis. It would be just as evil.
The religious aspect reflect the fact that millions of these progressive work together for the cause based on a common religion/ideology. Politicians, teachers, news media and entertainment media all worship in the church of progressive fascism.
that’s probably accurate, but I sometimes separate the followers according to what gets them riled up. Soros will fund many fronts in his crazy war, but the lower level mobs tend to cling to their sect, and many are probably sincere about their particular cause. Greenies, cop haters, Sharpton types, academic Marxists, global warming nuts, Christian haters, etc.
That’s just off the top of my head, need more funding for better analysis. 🙂
obama and Holder demonstrated that the “law” does not apply to at least some group of people, perhaps Holder’s “my people”? So, why should people in that group worry about the law?
Not to mention Baltimore city and state officials, including SRB, Elijah, Mulkowski met with Valjar at the WH yesterday. Lining up their thugs.
In the motion, the first argument is that this was improperly filed in District Court instead of Circuit Court. Can someone please address this?
It’s hard to see that either the DA would make a mistake arguing this, or the experienced lawyers on the B6 team would make this mistake. If the argument is correct though, then the rest of the document is moot.
What is the difference between District Court and Circuit Court? Never heard of it before. ( Unless the Circuit Court is manned by magistrates. )
It confused me, too. According to this, the case is currently in the District court, and is likely to be moved to the Circuit court.
http://www.washingtonpost.com/local/crime/defense-marilyn-mosby-should-recuse-herself-from-freddie-gray-case/2015/05/08/d701c51c-f5c8-11e4-bcc4-e8141e5eb0c9_story.html
“The filing is an indication that the defense is mounting an early and aggressive bid to preempt the charges even before the officers are indicted and the case is moved to Circuit Court. Rarely are such motions filed at the District Court level.”
Of course, most cases begin with an indictment, so one could reasonably argue that the unusual choice of forum was by the prosecutor, not the defense.
Here is a simple question: suppose the arrest was illegal? So what? The cops had the right to search Gray before they falsely “arrested” him. That right didn’t go away after the arrest. So they find the knife and the false arrest becomes a real arrrest. So they are guilty of false arrest for ten minutes. If such a crime exits, does that even count as a felony?
They’re trying to make some sort of elaborate “fruit of the poisoned tree” argument. It’s clear that the restraint prior to the search was not an arrest, making the prosecution argument one of the saddest and shoddiest I have ever laid eyes upon.
And, speaking of absurd consequences (which is their argument against the conflict of interest push by defense attorneys), if the stop/ “arrest” of a person you’re about to search for a weapon is illegal, that means the courts are openly encouraging situations likely to get officers shot in the face and killed. I don’t think this will fly with a judge, even in Baltimore.
Andrew,
Congrats on another stellar article which makes the legal world accessible to lay people.
I wish you would write on other issues, as well, and/or you would consider a daily column.
I really enjoy your writing.
Not that it has anything to do with this article, but I have to notice that this woman would probably be a flaming pain in the ass to work with in the same office.
I would love to own the semi-upscale lawyer bar around the corner from her office or the nearest pharmacy that sells Valium in salt lick form.
You obviously haven’t read much about Mrs. Mosby. She was elected on a SJW platform and as with most vicious liberals the first thing the did was clean house and make room for her friends and supporters. So the people in the office probably drool and wet themselves when she smiles at them.
When a politician speaks with cameras around, the point is always a tableau for the audience, not the exchange itself.
It’s professional wrestling, each move performed for its effect on the people watching. Any effect on the other performer is “side.”
I find it helpful to just recast them as professional wrestlers in my head. Much quicker and easier than trying to parse all the felgercarb (“..karb”?)
Let’s get ready to rumbllllllllllllllll!!!!!!!!
During the beginning of the Zimmerman trial, several commentators–not on Fox–remarked that the prosecution’s presentation was so awful it looked as if they were trying to throw the case.
Part of it, of course, was the hand they’d been dealt. But still, it was seen as surprisingly incompetent.
You do the best you can with what you have.
In this case, the prosecution is looking as if they’d just noticed they don’t have any cards and so they’re getting ready to kick over the table. As a previous commentator noted, this will probably involve riots.
Or perhaps riots are the goal and have been from the start.
It has been documented before on Legal Insutrection that Palestinian-style propaganda was at work to squeeze every bit of political benefit out of the Michael Brown fiasco. It seems that this process has been fully incorporated by these race baiters and we will see it over and over again. They don’t care that they are wrong. They know that all they have to do is hold up a story of racial victimization and the ignorant crowd out for revenge will play along.
What do you say to buzzsawmonkey’s theory that Mosby is deliberately botching the case, but will try to drag it out for as long as she can, because her real goal is to get an acquittal, followed by nationwide black outrage at as high a pitch as possible, preferably in the summer of 2016, so it will still be going in November?
Update:
CNN just announced grand jury indictments of the 6 officers involved in the death of Freddy Gray.
Kudos to prosecutor Marilyn Mosby. She knows her job better than the hypocrites and WVI practitioners.
How are things in mom’s basement.
The Grand Jury indictment is actually more proof of her incompetence since she didn’t even know enough to charge them in the correct court system.
So you’re handing out kudos to the Bimbo in Chief on the basis of the GJ indictment? I reckon you’ve never heard of the indictability of a “Ham Sandwich” 😀 :D: 😀
Officers have been indicted? (per KFI Los Angeles)
What happens now?
Actually, it means nothing really. Just checked.
Actually, I can’t wait to see the indictments. Every time Mosby files she exposes further the flaws and weaknesses of the charges and her incompetency and lack of professionalism.
I’m going to make some popcorn and look for a link to the indictments.
Yeah, I can’t wait to see them either.
That photo of Prosecutor Marilyn Mosby at the podium is a perfect portrait. I’d be tempted to title it “Portrait of a young, ignorant, entitled black woman with a chip on her shoulder.”
Yeah, I can see the same expression on her face. She’s out for blood and revenge. It is an odd place to be for many of my fellow black peers. I really hope these officers are found in the clear. I just doesn’t seem logical to me that six police officers would conspire to murder this man. After watching the video from start to finish, I was not moved to the point of becoming emotionally unstable enough that I still could not be objective.