Posted on 05/05/2015 7:10:00 AM PDT by servo1969
Last Friday, while Prosecutor Mosby was announcing her poorly supported tsunami of charges against the six police officers involved in arresting and transporting the ill-fated Freddie Gray, Mosby also remarked that Gray’s knife–claimed by police to be the probable cause for his arrest–was in fact lawful under Maryland law.
As reported by the New York Times:
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.
This rather perfunctory statement certainly raised my eyebrows, for several reasons.
First, whether the knife was actually lawful under Maryland law is largely irrelevant for purposes of probable cause.
Probable cause is based on whether a reasonable police officer under the circumstances would have genuinely believed the knife to have been unlawful. If so, the fact that the knife might later be determined to be lawful would certainly be cause to discontinue efforts to prosecute, but it wouldn’t retroactively make the officer’s conduct in making the initial arrest unlawful.
When making an assessment of probable cause for an arrest, the officer is not tasked with making an absolute determination of whether the conduct in question is unlawful. After all, that can ultimately only be done by a jury, necessarily a decision that occurs many steps downstream from the street arrest.
Rather, the arresting officer is merely tasked with determining whether probable cause exists that the conduct in question is unlawful. Note the word of the use probable. This allows for the possibility that the cause is not actual. Merely probable.
Certainly, one can imagine situations in which a given knife falls so far from the legal definition of unlawful types that no reasonable officer could have believed it to be within that unlawful category. If so, a mistaken belief that the knife was unlawful would not be reasonable, and probable cause would be lacking, and the arrest would be unlawful.
Worse, one can imagine an arrest involving malice, where an officer knew full well that the knife in question did not fall within the unlawful category, and decided to fraudulently claim probable cause to effect the arrest. Obviously such would be an unlawful arrest.
Once can also imagine, however, situations in which a given knife could well reasonably appear to fall within the legal definition of unlawful types. As a result, a reasonable officer might reasonably, if mistakenly, believe it provided probable cause for an arrest. In this scenario the arrest, as an act of the officer, is lawful, even if later the underlying facts of the arrest are found not to constitute a crime (e.g., closer, better-informed, off-the-street inspection of the knife discloses it is, in fact, not unlawful).
In Gray’s instance, it is not disputed that possession of a “switchblade” knife is unlawful anywhere in Maryland. It has been widely reported (and now confirmed, as discussed below) that Gray’s knife was of a different mechanism, known as a “spring-assisted knife.”
Both of these types of mechanisms have specific technical definitions that allow the well-informed examiner to differentiate between the two.
It is also true, however, that they appear sufficiently similar in operation that someone lacking specialized knowledge could easily and reasonably believe a “spring-assisted knife” to fall within the “switchblade” category. The video below illustrates this similarity of operation (the first knife is the assisted-opening, the second the switchblade):
If the arresting officer(s) in Gray’s case reasonably believed that the spring-assisted knife in Gray’s possession fell into the unlawful category, then the legal requirement for probable cause in making their arrest has been met, regardless of whether upon later inspection and assessment the knife is determined to be unlawful.
Thus Mosby’s claim that Gray’s knife was ultimately determined to be lawful is largely irrelevant to the issue of whether the officers had probable cause to arrest Gray.
As we noted in our Friday post on Mosby’s statement, it also reflects remarkable jurisdictional sloppiness, especially coming from a state prosecutor who works primarily in the relevant subsidiary jurisdiction of that state. As reported by the New York Times, Mosby is quoted as explicitly stating that:
The knife was not a switchblade and is lawful under Maryland law. (emphasis added)
Maryland law, however, is utterly irrelevant to Gray’s arrest, because he was not arrested for a violation of Maryland law. Rather he was arrested for a violation of the City Code of Baltimore.
The City of Baltimore has adopted as an ordinance 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)
The description of the charge brought against Gray explicitly provides that he
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)
As we noted in our post last Friday:
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.
Now, we can can remove the word arguably from the above statement, as a Baltimore Police Department Task Force has determined conclusively that Gray’s knife was of the spring-assisted type, and that such spring-assisted knives fall within the scope of Baltimore code §59.22.
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. (emphasis added)
I can already hear the counter-argument: That just makes it a tie, Mosby’s office says the knife was lawful, the Baltimore Police Department (biased in favor of the accused officers) says the knife was unlawful. No winner.
That, of course, would be an improper understanding of where things stand.
First, as already discussed, Mosby’s conclusion of lawfulness was under the irrelevant Maryland law, not the relevant Baltimore code.
Second, for Gray’s arrest to have been unlawful it would be necessary that there was no possibility a reasonable officer would have perceived Gray’s knife as violating the Baltimore code.
Now that the Baltimore Police department has determined the knife did, in fact, violate the code, any argument that a street cop making an arrest on the city’s streets was unreasonable in coming to the same conclusion is simply not credible.
This remains true even if the task force’s determination is later itself determined to be incorrect. If an organized task force of senior officers in the safety of police HQ makes a determination that Gray’s knife is unlawful, no police officer who had come to the same conclusion in much less favorable circumstances on the street in the course of evaluating probable cause in real-time is going to be held to have been unreasonable.
OK, folks, that’s it for now. Obviously keep your eyes here for ongoing coverage of the debacle that is the Mosby “Freddie Gray Case” prosecutions.
–-Andrew, @LawSelfDefense
surprise surprise
#factsdontmatter. #prosecutersliescount. What more do we need to know? Besides what’s the deal with subverting the pound sign anyway? Simple case of crowd calming apparently. Wonder what’ll happen if some of the charges are dropped or dismissed? Round 2 rioting?
No...no....he was just going fishing.
The guy was a well known heroin dealer. This wasn’t Grandma with a knitting needle.
Lord knows, every city in America puts out the old welcome mat for heroin dealers and their lifestyle.
Two points. One, there is something wrong with a knife law when people can’t figure out whether it applies or not.
And two, how did the cops know that Gray had a knife in the first place? If it was concealed, then it can’t have any bearing on why he was stopped in the first place.
Knife laws are stupid anyways.
A cop can stop and question anyone.
There’s also the probability that the officers recognized Freddy (a chronic law-breaker and drug dealer) and figured that his possession of a knife was likely a violation of his parole/probation.
Two things are going to occur.
1. The cops will never be convicted.
2. BPD will disintegrate, followed by Zimbabwea style anarchy in B-more and wider spread, followed by wholesale tossing the dems in B-more and elsewhere in 2016.
He was stopped before they knew he had the knife.
He was arrested for having the knife.
Isn’t everything illegal in MD?
“2. BPD will disintegrate, followed by Zimbabwea style anarchy in B-more and wider spread, followed by wholesale tossing the dems in B-more and elsewhere in 2016.”
And Cruz will lay the disgrace Baltimore is at the feet of the democrats and their “Great Society” programs of the last 50 years.
To your 2nd point - I heard (on FarceBook) that approximately 30 BPD officers resigned in protest of the PA and her railroad. Has anyone else heard anything similar?
They knew he had a knife because it had a pocket clip that was showing. I guess that’s probable cause. /s
Two points. One, there is something wrong with a knife law when people can’t figure out whether it applies or not.
...
There are people and companies who will make knives that skirt the law closely.
Probable cause is based on whether a reasonable police officer under the circumstances would have genuinely believed the knife to have been unlawful. If so, the fact that the knife might later be determined to be lawful would certainly be cause to discontinue efforts to prosecute, but it wouldn’t retroactively make the officer’s conduct in making the initial arrest unlawful.
...
Any prosecutor who doesn’t know the above is incompetent.
I read an article awhile back - before this case - about how NYPD cops would stand around subway platforms eying obvious tradesmen (carpenters and the like). Those folks carry all sorts of cutting utensils.
Cop notices an illegal knife, and bingo, an easy arrest. And yet another dangerous carpenter is taken off the streets.
If I didn’t live in Texas, I might rethink my knife-carry protocol.
By Mosby’s standards, her own charging of the officers is unlawful.
Haven’t heard that, although I did see a resignation letter along those lines purporting to be from a Baltimore cop making the rounds.
There’s no doubt in my mind that the States Attorney is making matters worse by her actions. If the cops really didn’t restrain the guy, took him on a “nickle ride”, made unathorized stops etc then they need to be dealt with using the appropriate legal and administrative processes and measures.
But she’s trying to use this to political effect. Probably sees it as a golden opportunity to advance her career. Heck, she was even dropping her campaign slogans into the text of her probable cause arrest statement. But she’s really overreaching onna lot of things, which won’t end well.
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