In Defense of the Officers Who Arrested Freddie Gray

31May15

This was published last week on Breach Bang Clear.

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I confess. I’m an out-of-control, criminal cop. I once did something so horrible, I belong in prison. I want to lay my soul bare and beg for forgiveness. Here’s the story of my terrible crime. Brace yourself.

Late one night several years back, my partner and I were on patrol in a high-crime area. We wanted a drink, so we pulled into a gas station across the street from one of the worst apartment complexes in the city. We were distracted by a conversation about some inane topic, but I noticed a young black male walking away from the door of the gas station. That wasn’t unusual. The gas station had a steady flow of customers all night every night, so I didn’t pay much attention.

Then the man saw us.

He immediately sprinted across the street toward the apartment complex. We were in a high-crime area, the man immediately fled when we pulled in, and my first thought was that he had robbed the gas station. In an instant, I decided we had Reasonable Suspicion. My partner and I “switched on”; we quit jabbering, locked in on the runner and sped out of the parking lot. Our car bounced over the curb and reached the apartment gate just as the man ran through it. We bailed out and charged after him, yelling commands to stop.

The man kept going. I was a pretty good sprinter and my partner was a former college athlete, but our suspect, not burdened with fifteen pounds of gear like we were, was getting away from us. He was well ahead when he cut between two apartment buildings, and my partner split from me to head him off. It worked; the suspect saw my partner at the next corner and turned back, then ran into me. I caught him.

The first thing he did was try to flip me. I managed to stay on my feet and tackled him against a car bumper. As we struggled, my partner showed up and immediately nailed me in the forearm with his flashlight (he still denies that). After another minute or so of struggling, we got the suspect cuffed. His initial arrest was for evading detention. When we searched him incident to arrest we found an ice pick, a crack pipe with cocaine residue, plus a baggie of fake crack. The warrant system was down that night, so we couldn’t check him for warrants. We just charged him with the cocaine residue.

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That’s right. I confess to chasing a criminal, catching him, fighting him and putting him in jail. I did it. I did it all.

Some of you might say, “I don’t get it. You’re a cop. You’re supposed to chase and arrest criminals.” And sure, that sounds reasonable. But I must have committed a crime. I mean, I did almost exactly what three cops in Baltimore did, and they just got indicted.

The Baltimore PD officers who arrested Freddie Gray are facing a combination of Assault, Reckless Endangerment, Manslaughter and Misconduct in Office charges (they were initially charged with slightly different crimes, including false imprisonment, but the charges were amended). They were on patrol in a high-crime area, Gray saw them and ran. The officers chased him, arrested him for possession of a switchblade knife and called for a paddy wagon to transport him. Something happened during transport, Gray was fatally injured and died a week later.

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The officers who arrested Gray didn’t injure him. Nobody is claiming they beat or abused Gray. The arresting officers don’t appear to have done anything wrong. But according to the Baltimore State’s Attorney Marilyn Mosby, the knife Gray had didn’t fit the legal definition of a switchblade. Ergo, the officers had no reason to stop or Probable Cause to arrest Gray, so they committed a crime by arresting him. Makes sense, right?

Hell no it doesn’t.

Remember, we’re not talking about the officers who transported Gray. Obviously, something bad happened in the back of the paddy wagon. It may have been malicious and intentional, like a deliberate assault on Gray while he was handcuffed. Or it could have been simply negligent, like failure to put Gray in a seat belt which led to him falling and hitting the back of his head on a bolt. I don’t know, you probably don’t know either, and the best thing to do is wait for more evidence.

For the sake of argument, let’s say the transporting officers should be charged. But why charge the arresting officers?

First, let’s talk about Probable Cause to Arrest, Reasonable Suspicion to Stop, and what exactly those terms mean.

Many people who commented on Gray’s arrest pointed out that “just running when you see police doesn’t create Probable Cause to arrest”. And they’re right. But cops don’t need PC to stop a suspect. We need PC to actually make a custodial arrest, but to stop someone and investigate we just need Reasonable Suspicion (RS) that a suspect committed or is about to commit a crime.

Here’s an example of RS: one hot summer night I was patrolling through a strip center in an extremely high-crime area. As my partner and I passed several parked cars we saw a man in the parking lot. That’s not illegal. He was dressed in dark clothing. That’s not illegal. He was kneeling between two cars. That’s suspicious as hell, but not illegal. And one final, minor, also not illegal detail: he was pulling a ski mask down over his face.

Even though he wasn’t doing anything illegal, we had RS to stop because the man appeared to be either committing a crime or preparing to. We didn’t have PC to arrest. If I had detained him and discovered there was some innocent reason he was kneeling between cars in dark clothing while putting on a ski mask late at night, like maybe he was pulling a prank on a friend, no arrest. But we had every right and reason to stop and investigate him.

So did the Baltimore officers have RS to stop Freddie Gray for simply being in a high-crime area and running from police?

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Read the rest at http://www.breachbangclear.com/in-defense-of-the-officers-who-arrested-freddie-gray/

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Chris Hernandez is a 20 year police officer, former Marine and currently serving National Guard soldier with over 25 years of military service. He is a combat veteran of Iraq and Afghanistan and also served 18 months as a United Nations police officer in Kosovo. He writes for BreachBangClear.com and Iron Mike magazine and has published two military fiction novels, Proof of Our Resolve and Line in the Valley, through Tactical16 Publishing. He can be reached at chris_hernandez_author@yahoo.com or on his Facebook page (https://www.facebook.com/ProofofOurResolve).

http://www.amazon.com/Line-Valley-Chris-Hernandez-ebook/dp/B00HW1MA2G/ref=pd_sim_kstore_1?ie=UTF8&refRID=09XSSHABSWPC3FM8K6P4
http://www.amazon.com/Proof-Our-Resolve-Chris-Hernandez-ebook/dp/B0099XMR1E/ref=pd_sim_kstore_1?ie=UTF8&refRID=0S6AGHBTJZ6JH99D56X7

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14 Responses to “In Defense of the Officers Who Arrested Freddie Gray”

  1. 1 Susan

    Well said. I appreciate the detailedand dispassionate breakdown of the elements involved. I have rotting apples in my profession as well but ‘standards of oractice’ are designed to keep us all on the rails. Great job describing the decision tree LEO’s climb involving Reasonable Search + Probable Cause.
    Aside: your partner us still owed a wack for assaulting you with the flashlight. I bet that hurt!

  2. I find it very difficult to see credibility in Marilyn Mosby and have from the time of the breaking news interview on tv, just observing her body posturing and body language. LEOs are trained to be observant and investigate potential “situations”. So I’m not so sure any of the officers involved did anything wrong. In situations and jurisdictions like this, I’ll stand behind LEOs 99.9% of the time. That they are willing to even do this job, I thank them. Because there are a heck of a lot of other citizens who wouldn’t even CONSIDER doing this work. In the end, I hope every one of these officers are completely cleared. Baltimore’s problems are not going to be solved by singling out these officers in this situation.

  3. 3 chuck

    Great articulation of factors contributing to reasonable suspicion and how that leads to probable cause.

  4. 4 TT

    Thanks Chris for the RS to PC breakdown and analysis. As a CHL holder I really appreciate and value definitional rigor and explanation like this.

  5. 5 Keith

    I am forced to wonder how many people have been arrested and convicted for having that switchblade that suddenly was not in Baltimore. Would this possibly invalidate those convictions?

  6. 6 Nick42

    Chris,

    It sounds like your problem is that prosecutors charged the officers who were involved in the arrest, but not the death of Freddie Gray.

    I don’t know all the details, but assuming they were completely uninvolved with the “rough ride” that allegedly caused Gary’s death, it sounds like they were overcharged based upon very technical readings of unrelated statues for being peripherally involved with a crime. Furthermore, it appears very likely that this was done due to political concerns.

    If I’ve accurately described your concerns, I agree with you. However, I think it’s necessary to point out that all too often, this is how our criminal justice system works now. I don’t know you personally, but I’ve been reading your blog long enough to figure that you’re one of the good guys. Maybe this doesn’t happen in your jurisdiction. But when it does happen, prosecutorial discretion, mandatory minimums, and plea bargains give the prosecutor more power then the judge in many cases.

  7. 7 David Zinner

    I get all that. But one of the details we forget is that, as soon as a suspect is in custody, his safety and well being becomes the complete responsibility of the authorities. If he was injured during the arrest (or before the arrest, or ODing) then the officers are responsible for seeing to it that he promptly receives medical attention. If he is injured during transport, especially because of carelessness or failure to follow procedure, then the officer is at fault. Period.

    Antibubba

    • I’m not saying the officer/s responsible for his care when he was injured aren’t at fault. I’m saying the arresting officers aren’t the ones believed to have injured him, and the charges against them don’t make sense.

  8. 9 George

    I believe the D.A. who filed charges against the arresting cops was maliciously wrong.

    However . . .You said “cops don’t need PC to stop a suspect. We need PC to actually make a custodial arrest, but to stop someone and investigate . . .”

    You’re mistaken. Cops do need probable cause to stop someone. The Supreme Court has so ruled, more than once. Citizens going about their lawful activities are not required to stop and answer questions just because a cop decides to stop them. Any attempts by a cop to stop or detain a citizen, absent probable cause prior to the attempt to stop, is a violation.

    That’s how I read the various case laws.

    • You’re actually objectively wrong on point two (and I’m not trying to be a jerk, just explaining the case law). In 1968 the USSC decided the Terry vs. Ohio case, which created the “Reasonable Suspicion to stop” rule. In that case an officer spotted three men he thought were casing a store for a robbery. He did NOT see them commit an actual crime. He stopped them and found a pistol on Terry. The USSC decided the officer did have reason to stop the three men even though they hadn’t committed a crime.

      I don’t think you read my essay, but if you did please go back and check the anecdote about the man I stopped in a parking lot late one night. Being in a parking late at night isn’t illegal, he was wearing dark clothing which also wasn’t illegal, he was kneeling between two cars which wasn’t illegal, and he was pulling a ski mask down over his head which wasn’t illegal. I still had RS to stop because he appeared to be preparing to commit a crime.

      Reasonable Suspicion, which is less than Probable Cause, exists as a legal principle and has been recognized for almost 50 years.

  9. 11 JCC

    @ George –
    The author is correct. RS is all that is required to stop and make threshold inquiries. “Reasonable suspicion” is a fairly low bar, and while it must be articulated, can be based on observations, training, experience, 2nd hand reports, etc of the officer(s). Because of this, an experienced officer can pretty much create a basis for threshold inquiry out of any bad guy’s actions, who react predictably to cops, and also act predictably when not aware of cops’ presence.
    “…just because a cop decides to stop them…” Unfortunately, for the citizen anyway, the cops are not required to debate the stop and/or explain at the moment their basis for a stop. They (the cops) certainly can be called to account later for same, but when confronted with officers, a civilian refusing to comply absent knowledge of the cops’ rationale and authority does risk some sanction.

  10. 12 mike lofton

    You are miss framing the issue here…
    “Ergo, the officers had no reason to stop or Probable Cause to arrest Gray, so they committed a crime by arresting him. Makes sense, right?”
    NOT THE ISSUE!

    No, they committed a crime by beating him to death while he was cuffed inside a vehicle.
    This is why the cops will go to jail. This, and many instances like this, is why there were riots and why the public is outraged and in the streets.

    It isn’t about questions of arrest in cases with cops and African Americans, it is about ABUSE!! Systematic unreported violence AFTER the arrest! And if that was happening to YOUR peers Mr Hernandez, I think you would be up in arms and raising hell! (and rightfully so)

  11. 14 JCC

    @ Mike L –
    Actually, it’s exactly the issue as framed by the Baltimore prosecutor in her original public statements. She alleged that the original arrest was illegal, because the knife wasn’t unlawful, so anything that followed was likewise illegal. She has apparently altered that theory in the grand jury proceedings, and now says that her theory rests mainly on the failure of the officers to render medical assistance, even though the victim was requesting such. No one, at least no one in the media reports, is claiming that Gray was beaten to death by the officers. In fact, there was a preliminary medical examiner report which claimed the cause of death was a large bolt or protruding nut of some kind inside the van, and that Gray somehow struck his head or neck on it. The manner of death was “accidental”, later changed at the request of the prosecutor to “homicide”, which could be consistent with the prosecutor’s theory if you include “negligent homicide”.
    But as far as I know, not a single person is alleging that Gray was beaten to death. Although the government now wants to seal the ME’s report, it’s pretty clear that their theory is not that Gray was actually directly killed by an assault, but by some kind of accidental injury inflicted as a result of gross negligence or cruel indifference, while Gray was unlawfully in custody.


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