Freddie Gray’s Knife – Why is Prosecutor Claiming Unlawful Arrest?

Is Prosecutor Mosby correct that Gray’s arrest was unlawful because knife was legal?

A new talking point claiming that Freddie Gray’s original arrest was unlawful has arisen, propelled by the claim yesterday by Prosecutor Mosby that the knife seized from Gray by police was legal to possess in Maryland.

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.”

These statements are remarkably insensible coming from someone who has attained the position of state prosecutor.

Mosby Issue #1: Spring-Assisted Knives Almost Certainly ARE Illegal Under MD Law

First, it raises a question of whether Mosby is simply facially incorrect in claiming that Gray’s knife is legal. It has been described in news reports as “spring assisted.” If that description is explicitly false and there was no spring assist mechanism, then it is likely that Gray’s knife was not unlawful.

If, however, it was spring assisted than it certainly seems it would be unlawful under Maryland law.

(1) a knife or penknife having a blade that opens automatically by hand pressure applied to a button, spring, or other device in the handle of the knife.

The way a spring-assisted knife mechanism works is that a spring in the handle of the knife takes over the opening of the blade after the blade has been opened a small amount by pressure applied to the blade by the users fingers. Thus, the statutory definition would certainly seem to apply to spring-assisted knives.

Clearly, if a spring-assisted knife falls within the statutory prohibition, and it has been widely reported Gray’s knife was spring-assisted, possession of this unlawful knife would provide probable cause for Gray’s arrest.

It is notable that Mosby has yet to address this issue of the precise mechanism of Gray’s knife. This is an odd oversight, given that this issue would likely be determinative of her claim that the knife was not unlawful. For those unclear on the mechanistic differences an assisted-opening knife and a switchblade, the video below may be informative (the first knife is the assisted-opening, the second the switchblade):

Second, Mosby’s statement reflects remarkable jurisdictional sloppiness, especially coming from a state prosecutor who works primarily in a subsidiary jurisdiction of that state. As noted above, Mosby is quoted as explicitly stating that:

The knife was not a switchblade and is lawful under Maryland law. (emphasis added)

"did unlawfully carry, possess and sell a knife commonly known as a switch blade knife, with an automatic spring or other device for opening and/or closing the blade within the limits of Baltimore City. (emphasis added)

It is notable that it is not at all uncommon, particularly in “blue” cities, for those cities to have substantially more restrictive weapons laws than do surrounding urban areas. Anyone who has ever driven through the state of Maryland will have seen that there is a dramatic difference in social culture between inner-city Baltimore and the bucolic Maryland countryside.

Indeed, the City of Baltimore has adopted as an ordinance of its City Code §59-22, which states in relevant part:

Switch-blade knives. (a) Possession or sale, etc., prohibited. It shall be unlawful for any person to sell, carry, or possess any knife with an automatic spring. (emphasis added)

Thus (and again assuming Gray’s knife was spring-assisted, as widely reported), even if Mosby is correct (unlikely) that the knife was legal under Maryland state law, it would still arguably have been illegal under Baltimore code §59-22.

Third, it raises questions about whether the knife was illegal per se, or whether it was the possession of the knife by Freddie Gray that was illegal. Gray was a convicted felon, and an examination of his criminal record suggests it highly likely that he was on probation when he was arrested and found with the concealed knife. (Anybody with definitive information on Gray’s probation status, please contact me directly.)

In my experience, it is an invariable condition of probation that possession of a concealed weapon of any type is prohibited.

Note that the explicit language in the Statement of Charges reads that Freddie Gray

"did unlawfully carry, possess and sell a knife commonly known as a switch blade knife, with an automatic spring or other device for opening and/or closing the blade within the limits of Baltimore City. (emphasis added)

Thus if Gray was on probation, and his probation prohibited his possession of a concealed weapon, this unlawful possession would provide adequate probable cause for Gray’s arrest.

Mosby’s asserts that the police failed to establish probable cause for Gray’s arrest on the basis that she later determined Gray’s knife (the basis for the arrest) to have been legal. As reported by the New York Times, Mosby claims that the arresting officers:

"failed to establish probable cause for Mr. Gray’s arrest, as no crime had been committed."

Here’s what probable cause does not mean: That the officer making an arrest has determined that the facts on which the arrest is founded are true to an absolute certainty, and that the arrest becomes illegal should these reasonably believed “facts” later turn out to be untrue or mistaken.

This should be self-evident by the inclusion of the word “probable” in the phrase “probable cause.”

Arrests often go uncharged, and charges are often dismissed, and defendants are even acquitted at trial, often based upon a later conclusion that the underlying facts which suggested a crime are untrue or mistaken. None of these outcomes makes the initial arrest illegal.

When an officer makes an arrest based on an articulable statement of probable cause, that arrest becomes illegal only if the officer knew or reasonably should have known that no crime had, in fact, been committed.

In short, police are entitled to make reasonable mistakes, and such a reasonable mistake does not make the arrest illegal.

Such a mistake may, of course, make further prosecution of the offense impractical or outright unjust. But that’s a completely different matter than whether an arrest was unlawful.

In the Gray instance, the arresting officer may in fact have been mistaken about whether a spring-assisted knife falls within the statutory prohibition on possession of a switchblade, or on whether Gray’s possession of the knife while (presumably) on probation was an offense subject to arrest.

But unless he actually knew or reasonably should have known either of those possibilities to be the case, legally-speaking probable cause for the arrest existed, and the arrest itself was not a crime.

Again, if the officer were mistaken the arrest may be defective for purposes of further prosecution. But this does not mean that an officer is limited to making an arrest only in circumstances where criminal conduct is a legal and moral certainty.

A society in which this were required, or permitted would be, I expect, a society that most Americans would find an unpleasant place to live.

Thus, even if it turns out that the knife was legal and that Freddie Gray were legally permitted to possess the knife under the circumstances, if the police officer reasonably believed that either of these were offenses subject to arrest, and neither knew or should have known that this belief was incorrect at the time of the arrest, then there existed probable cause for the arrest, and the arrest itself is entirely lawful from the context of that officer’s conduct.

The apparent political theater in the announcement of the charges is getting growing criticism, reminiscent of what accompanied the George Zimmerman over-charging and politicized prosecution. Alan Dershowitz on NewsMax:

When there were great patriotic democratic politicians, nowadays an in extinction specie, senator for New York, Daniel Patrick Moynihan excelled among them. He warned the destruction of the Black family nucleus that gave us, even living in dire poverty, figures of the caliber of Justice Clarence Thomas.

“The steady expansion of welfare programs can be taken as a measure of the steady disintegration of the Negro family structure over the past generation in the United States.” Dem. Senator Daniel Patrick Moynihan (In office January 3, 1977 – January 3, 2001)

“The liberal left can be as rigid and destructive as any force in American life. Dem. senator Daniel Moynihan

Democratic hard left control of Baltimore is the root causes of the riots and racial division in spite that all the power is in the hand of Black democrats for several generations.

Baltimore Mayor, Stephanie Rawlings-Blake, ordered the police: to “stand down” “LET THEM LOOT. IT’ S ONLY PROPERTY”. We saw hell explode after the Black democratic mayor gave the thugs carte blanche to destroy the city. The police weren’t allowed to defend the city. More than 100 officers were injured, some seriously.

Why the Baltimore riots, looting and destruction of their own Black neighborhoods? Did the Blacks doubted for a moment that the Black establishment in control of Baltimore will fail to condemn the officers to the highest penalty allowed by Law? Four of the six accused officers are the ones charged with manslaughter. Of those 4, three are Blacks and one is White. Their heads will be presented to the mobs in a silver plate to placate the rabble of noisy angry thugs.

Facts are irrelevant for Anarchists, Communists, professionals agitators and “community organizers” followers of Marxist Saul Alinsky’s “Rules for Radicals” strategy.

Obama is the most racist and divisive president in our history. Obama does not want unity. He wants to keep the country as polarized and disoriented as possible. Obama has been inflaming racial tension since he took power. According Alinisky’s tactics adopted by Obama, change has to be brought through relentless agitation and “trouble making” of a kind that radically disrupts society as it is.

David Horowitz' excellent recently published pamphlet "Barack Obama's Rules for Revolution: The Alinsky Model" offers keen insights into Alinsky and what it might mean when Alinsky followers are in positions of power. The conclusions he reaches are not pleasant but are borne out by current events, public utterances of the president, his history, and the work of Alinsky himself.

What we are seeing is the most radical President in our country’s history who is unable to govern because governing is not his purpose. The Alinskyite, ever the destroyer of institutions, cannot govern because governments and societies are built upon institutions.

We wonder if Baltimore’s schools are forming thugs instead of educating the students for a fruitful and productive life? In Baltimore, taxpayers are currently spending $16,578 per year for each pupil in the city’s public schools. Not only is this 48% more than the national average of $10,608, but it’s more than any other country on the face of the earth spends on public education.

Nationwide according to the FBI in 2011, 193 blacks were killed by whites, 448 White killed by Blacks while 2,447 blacks were killed by blacks. That is 2.3 times more whites killed by blacks than the other way around despite the fact that there’s six times as many whites in this country.

Do Black lives really matter? How many of the parents of Blacks murdered by Blacks received a call of Obama or send his personal representative to the funeral? Did our condolences in chief has ever called the parents of so many Whites killed by Blacks?

Milwaukee County Sheriff David Clarke: Obama ‘Quietly Enjoying’ Unrest in Baltimore

therightpundit ^ | 4/29/15

http://www.freerepublic.com/focus/f-bloggers/3284576/posts

Not holding back one bit. Milwaukee County Sheriff David Clarke says O is “quietly enjoying” what’s going on in Baltimore because he’s a ‘promoter of division’ and has ‘benefitted politically’ from ‘dividing’ people.

Sheriff Clarke points out all the times President Obama has pitted one group of Americans against another. He also questions why Obama didn’t come out and speak about the Baltimore riots earlier. He was interviewed here on the Mark Levin Show

Clarke: Change In Baltimore Should Start With “Failed Liberal Democrat Policies”

http://www.freerepublic.com/focus/f-news/3284755/posts

Breitbart.com ^ | April 30,2015 | Ian Hanchett

Milwaukee County Sheriff David Clarke (D) blasted “failed liberal government policies” for miring people in cities like Baltimore in “generational poverty” and argued that change in Baltimore “needs to start in the politics, the failed liberal Democrat policies” on Wednesday’s “Hannity” on the Fox News Channel.

The state law definition of a switchblade is:

“a knife or a penknife having a blade that opens automatically by hand pressure applied to a button, spring, or other device in the handle of the knife, commonly called a switchblade knife or a switchblade penknife”

The Baltimore Muni Code definition is:

“any knife with an automatic spring or other device for opening and/or closing the blade, commonly known as a switch-blade knife.”

They both use the “other device” catchall, but the state law would require it to be in the handle, so you could argue the city’s version is less restrictive.

One other reason a municipality passes its own redundant version of a state law is because it isn’t satisfied with the way the county or state is prosecuting violations, and wants to be able to prosecute those cases itself. It may be a PITA to get the DA’s office to file on a simple possession case, but the City Attorney’s office is right down the hall.

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