[NOTE: This post has been updated with a relevant statement released yesterday from Prosecutor Mosby’s office, and embedded at the bottom of this post.]

As Prosecutor Marilyn Mosby continues her efforts to convict six police officers of serious felonies–including depraved-heart second degree murder and multiple counts of manslaughter–in the death of Freddie Gray continue, those charges are already being subject to challenge, and looking increasingly vulnerable.

The Baltimore Sun reports that the defense attorney for Edward Nero, one of the officers charged in the death of Freddie Gray, has filed a motion for an independent inspection of Gray’s knife, which formed the basis for the probable cause underpinning Gray’s arrest. (h/t commenter MouseTheLuckyDog)

The motion is embedded at the bottom of this post.

Arrest Timeline: Charges Against Officer Nero, In Context

It is perhaps worth stepping through the timeline of Officer Nero’s participation in the arrest and transport of Freddie Gray, and juxtapose that against the five criminal charges brought against him. (Note: we’re recounting the timeline “facts” as reported by the New York Times.) All events occur on April 12, 2015

8:39:12 AM

Officer Nero, Lieutenant Brian Rice, and Officer Miller are on bike patrol in a high-crime/drug area of Baltimore, and spot Freddie Gray–a known convict and career street-level drug dealer–acting suspiciously.

This raises the reasonable suspicion needed to justify a “Terry stop,” (commonly known as stop-and-frisk), and the officers seek to do so with Freddie Gray.

(For more details on a “Terry stop,” see Was Freddie Gray’s Arrest Lawful? Almost Certainly.)

Gray observes the officers approaching and flees their lawful stop, further establishing reasonable suspicion. The officers pursue.

8:39:52 AM

Freddie’s flight from the lawful Terry stop lasts only 40 seconds before the officers bring him to a halt.

(Humorously, the New York Times describes the end of this flight and pursuit as Gray “surrendering to” the pursuing officers. I guess the NYT forgot how to spell “captured by.”)

8:40 AM

The officers prone out Gray and handcuff him, all perfectly lawful and consistent with securing the safety of a Terry stop.

Prosecutor Mosby claims that at this point Gray requested an inhaler, and was not provided one. She does not indicate her evidence for this claim, nor whether the officers or Gray even had an inhaler in their possession that they could have offered Gray, nor whether the officers have a legal duty–or are even medically qualified–to provide medical assistance to a suspect.

Raising Gray to a seated position, Officer Nero (along with Miller) observes a pocket knife clipped to Gray’s right pocket. The knife is secured and examined, again entirely consistent with securing a safe Terry stop.

Upon examination, the officers observe that the knife employs a spring-assisted mechanism, and conclude that it reasonably falls within the definition of an unlawful knife under Baltimore City Code §59-22, which provides in relevant part that:

(a) Possession or sale, etc., prohibited. 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.

The knife thus established the probable cause necessary to escalate the Terry stop to an actual arrest, and the violation of Baltimore City Code §59-22 is specified for this purpose in the formal Statement of Charges:

Officers Miller and Nero put Mr. Gray in a seated position and find a folding knife, which Ms. Mosby said was legal under Maryland law. The officers charged Mr. Gray with illegal possession of a switchblade. The officers then placed Mr. Gray down on his stomach and restrained him until the police van arrived. Ms. Mosby said Lieutenant Rice and Officers Miller and Nero “failed to establish probable cause for Mr. Gray’s arrest as no crime had been committed.”

Notably, on Friday May 1, when Prosecutor Mosby publicly announced the charges against the six police officers, she was reported by the New York Times to have explicitly stated that there was no probably cause for Gray’s arrest because the knife was legal:

Ms. Mosby faulted the police conduct at every turn. The officers who arrested him “failed to establish probable cause for Mr. Gray’s arrest, as no crime had been committed,” she said, describing the arrest as illegal. Officers accused him of possession of a switchblade, but Ms. Mosby said, “The knife was not a switchblade and is lawful under Maryland law. (Emphasis added.)

Since then, however, the investigative Task Force assembled by the Baltimore Police Department has concluded that the knife, was, in fact illegal in Baltimore, as reported by the Baltimore Sun yesterday:

While Mosby said Friday that the officers had made an illegal arrest because a knife Gray was carrying was not a “switchblade,” a violation of state law, the police task force studied the knife and determined it was “spring-assisted,” which does violate a Baltimore code [§59-22]. (emphasis added)

For more details on all of the above see Legal Insurrection’s earlier coverage here Freddie Gray’s Knife – Why is Prosecutor Claiming Unlawful Arrest? and here Confirmed – Freddie Gray’s Knife WAS Illegal.

The conclusion of the Task Force that the knife in Gray’s possession fell within the unlawful category could theoretically be reversed sometime in the future.

The organized Task Force composed of senior department officers with access to specialized knowledge and the opportunity to examine the knife in complete safety and at their leisure concluded, as the arresting officers had, that the knife was unlawful. That makes laughable any argument that the officer’s own conclusion under stress to that effect was unreasonable on its face.

And if the arresting officers perception of probable cause for the arrest was not unreasonable, the arrest was not unlawful. Period.

To get back to the timeline, at this time the police van arrived, and Gray was placed in the van. Video suggests that Officer Nero assisted in the placement of Gray in the vehicle.

The New York Times feels obliged to note here that Gray was not buckled into his seat. While there may be a perfectly reasonable explanation for why this was not done, it seems irrelevant to Officer Nero in particular, as doing so would presumably be the van driver’s responsibility (Officer Goodson), not Nero’s.

Presumably by this point several minutes had passed, given all of the action just described.

8:46 AM

After the van travels one block Officer Goodson stops the van, purportedly at the direction of police Lieutenant Brian Rice. Along with Officers Miller and Nero, Rice removes Gray from the van, place him in leg restraints, and return Gray to the van, placing him on the floor.

There are many lawful reasons why this conduct may have occurred. Leg restraints are commonly used only when a suspect remains tumultuous even when handcuffed, and may present a risk of physical injury to himself or others if he is not further restrained in this manner. Reports that there was another passenger in the van who reported loud noises from Gray’s compartment consistent with a tumultuous suspect would support such a scenario.

In any case, Mosby makes no claim that the use of the leg restraints was unlawful.

On Such Evidence, Mosby Lays Five Criminal Charges

This encompasses the entirety, according to the NYT timeline, of Officer Nero’s involvement in the arrest and transport of Freddie Gray.

On the basis of those facts alone Prosecutor Mosby believes she can convict Nero, beyond a reasonable doubt, of five criminal charges, including:

Assault in the second degree (good for 10 years in prison)

Assault in the second degree (2nd count, good for another 10 years)

Misconduct in office

Misconduct in office (2nd count)

False imprisonment

Relevance of the Knife to Unlawful Arrest Charges

The alleged unlawfulness of Gray’s arrest would seem to be essential to the false imprisonment charge brought against Nero. (The same charge was brought against Lieutenant Rice and Officer Miller, the other two officers involved in Gray’s Terry stop and arrest.)

As described above in some detail, however, it is clear that it was reasonable for the officers to conclude that the knife fell within the scope of Baltimore City Code §59-22, and was therefore unlawful to carry within the city limits, especially given that the formally organized Task Force has come to the same conclusion.

Officer Nero’s Attorney Files Motion for Inspection of Knife

Now Marc Zayon, Officer Nero’s attorney, is seeking an independent examination of the knife recovered from Gray at his arrest. His motion explicitly notes, in a clear reference to Mosby’s Friday statement to the media, that:

The State baldly asserts that “the knife was not a switchblade knife and is lawful under Maryland law.” The State further suggests that the Defendant “failed to establish probable cause for Mr. Gray’s arrest as no crime had been committed,” and accordingly the Defendant “illegally arrested Mr. Gray,” resulting in the charges herein.

The contention of Nero’s lawyer is, naturally, that the knife does in fact fall within the unlawful category, that Nero’s arrest of Gray was lawful, and thus that any charge against Nero premised on unlawful arrest (e.g., the false imprisonment charge) must be dismissed.

Increasingly Unlikely Either Serious or Lesser Charges Will Stick

There never seemed to be much of an evidentiary basis for the more serious criminal charges brought by Mosby against the officers–the second degree depraved heart murder and the multiple counts of manslaughter, in particular. Thus Mosby’s charges were always exceedingly vulnerable from “the top.”

Now it seems that even the lesser charges may lack even the minimal evidentiary basis to survive a probable cause hearing that due process demands the officers be entitled to, making Mosby’s charges vulnerable from “the bottom.”

I suppose only time will tell whether any of the charges whatever will remain of those Mosby brought against these six officers once due process has had its day. Personally, I’ll not be placing my bets on Mosby.

It’s Getting Hot In Here: For Mosby

I expect, ladies and gentlemen, that things are going to start to get interesting.

Keep a browser tab opened right here at Legal Insurrection for ongoing news on the debacle I expect to be the Freddie Gray-related prosecutions.

As promised, here’s the embedded motion:

[NOTE: This post has been updated with a relevant statement released yesterday from Prosecutor Mosby’s office, and embedded immediately below. A further discussion of the implications of Mosby’s statement can be found at: More Mosby: “Evidence Cannot Be Released Before Trial”.]

–-Andrew, @LawSelfDefense

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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.



