Unless you’ve been living in a cave, you’ve probably heard about the goings-on in Baltimore. In today’s op-ed, Hernandez weighs in on the officers who arrested Freddie Gray, and admits to committing crimes (at least if you listen to the barracks lawyers the news channel uses). Mad Duo
In Defense of the Officers Who Arrested Freddie Gray
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.
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.
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?
According to pretty much everyone in Maryland’s criminal justice system, the answer is no. Freddie Gray’s family, of course, agrees with that.
“Gray’s family attorneys and protesters said police didn’t have any probable cause to chase him but did so only because he was ‘running while black.’… Andrew O’Connell, an attorney for the Gray family, said ‘police have a lot of questions that need to be answered…What was the reasonable suspicion? Why were they arresting our client?… He had no weapon in his hand. He was committing no crime, and he wasn’t hurting anybody. The police had no reasonable suspicion to stop or arrest him,’ the attorney said.”
I ain’t no educated guy. I’m a proud community college non-graduate who even managed to fail Family Living my senior year of high school. But I have a pretty good understanding of criminal law, maybe a better understanding than Gray’s family attorney (sorry bro, there’s no such thing as “probable cause to chase”). And I’ve chased plenty of suspects who were in high-crime areas and ran as soon as they saw me. I was never once charged or even disciplined; on the contrary, chasing criminals who fled police was kinda considered “doing a good job”. So I devoted fifteen seconds to researching the internet for case law on Reasonable Suspicion, and found this:
Wardlow vs. Illinois, United States Supreme Court decision, 2000
In this case, a man in a high-crime area immediately fled upon seeing police cars. Police chased him and found a gun on him. He was convicted of a weapons offense and appealed. An Illinois court decided simply running from police in a high-crime area doesn’t create RS and overturned the conviction. The state appealed to the Supreme Court. And the Supreme Court decided that running from police in a high-crime area does in fact create RS.
Here are some quotes on the USSC opinion, from a New York Times article:
“The Supreme Court ruled today that flight at the mere sight of a police officer could often, in the context of other factors, be suspicious enough to justify the police in conducting a stop-and-frisk search… Chief Justice Rehnquist said, ‘Headlong flight – wherever it occurs – is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.’… The Rehnquist opinion said flight was not a ‘mere refusal to cooperate’ with the police, or an aspect of ‘going about one’s business,’ but was ‘just the opposite.’ [Rehnquist] added: ’Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.’” (http://www.nytimes.com/2000/01/13/us/supreme-court-roundup-flight-can-justify-search-by-police-high-court-rules.html?pagewanted=1)
Here’s more of the actual USSC opinion, from Cornell University Law School’s web site:
“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a ‘high crime area’ among the relevant contextual considerations in a Terry analysis. In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion but his unprovoked flight upon noticing the police [emphasis added]. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” (https://www.law.cornell.edu/supct/html/98-1036.ZO.html)
What does this mean? It means the United States Supreme Court thinks cops can stop people who see police and run while in high-crime areas. So while Ms. Marilyn Mosby in Baltimore doesn’t think the officers were justified in chasing and stopping Freddie Gray, the Supreme Court says otherwise.
It’s fairly reasonable to assume that when someone sees a cop and immediately runs, there’s a reason for it. Of course, almost everyone who runs is going to claim they did it for some non-criminal reason. Almost every suspect I ever chased down said “I just ran because I was scared”. But in the Freddie Gray case, we can look at past history to determine motivation.
At 25 years old, Gray had been arrested numerous times, convicted of several crimes including escape, and had spent time in prison. My gut sense tells me he was a typical small-time drug dealer. In my experience, those dealers carry small amounts of crack or marijuana they can easily discard or swallow while running; every real street cop has had suspects dig in their pockets and throw or swallow drugs while fleeing on foot. Gray likely wasn’t a random innocent guy who fled because he was justifiably suspicious of corrupt cops. It’s possible, but reason and experience suggest otherwise.
So it’s at least arguable that Gray ran because he was engaged in some type of criminal activity, and the three Baltimore PD officers had reasonable suspicion to stop him. The question now is, what if Gray refused to stop?
Back in the good old days when I was on the street, I’d have a good arrest. Not an arrest for drugs, not an arrest for guns, but an arrest for evading detention. Texas law is clear: “A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him” [emphasis added]. If I have RS to stop, and the suspect refuses to stop when lawfully ordered, he’s committed an offense. I don’t need him to commit any other crime; just running from me when I have RS gives me PC to arrest, according to the law. Different jurisdictions may have different interpretations, but again, the Supreme Court decided this already.
That being the case, it shouldn’t matter that “The knife wasn’t a switchblade.”
According to the charging document against Gray, he had a “spring assisted, one hand operated knife”. That description almost fits Maryland’s definition of a switchblade knife: “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”. Most of the spring-assisted knives I’ve owned didn’t have a button, but instead flipped open after slight pressure was applied to a raised stud on the blade. Those knives aren’t Maryland switchblades, as far as I can tell. According to Maryland’s definition the opening device has to be on the handle, not the blade. One arresting officer’s attorney is challenging Mosby’s claim about the switchblade and asking her to produce the knife. As far as I know she hasn’t.
But we’ve established that the officers, according to the Supreme Court, had RS to stop Gray. We’ve established that running from officers who have RS to stop is itself an arrestable offense in some jurisdictions. After stopping Gray, the officers found a knife on him they thought was a Maryland switchblade. Let’s say they were wrong and screwed up. Does that mean they deserve to be prosecuted for an honest misunderstanding of the law?
If you answer yes, then I’ll ask, “So does Marilyn Mosby deserve to be prosecuted for misunderstanding the law and initially charging the arresting officers for false imprisonment?” If an honest mistake of law demands prison time, then Mosby needs to be in the cell next to the arresting officers.
But let’s go back to the crime I just confessed to: my partner and I chased, fought and arrested a black male for running and refusing to stop, then charged him with a drug offense after he was already under arrest for evading. Was that legal?
In my agency, every time we make an arrest higher than municipal level we have to speak to an Assistant DA. We relay the facts of the arrest, the Assistant DA determines whether or not we have a valid charge, and if so we can book the suspect. The Assistant DA agreed that we had Reasonable Suspicion to stop, and the suspect’s refusal to stop created Probable Cause to arrest. So the crack residue we found incident to arrest led to a good possession charge. We didn’t charge him for evading; possession of cocaine residue was a higher charge, so we booked him on that.
As far as dope arrests go, it was no big deal. We went back to the convenience store he ran from. He hadn’t robbed it. We checked him for warrants. The system was down. He had an ice pick. There was no evidence he had stabbed anyone with it. He had fake crack. Caveat Emptor.
So basically we chased down a crackhead. I’m one of a growing number of cops whose feelings on the drug war have drastically changed, and I now support drug legalization. If we hadn’t chased our crackhead, what difference would it have made?
He was wanted for capital murder. I didn’t find out until the warrant system came back up the next day and a homicide investigator called me. Six months earlier in another state he had stabbed a man to death with an ice pick, then broke into a house, stabbed another man and stole his car. He eluded a massive manhunt and eventually wound up in Texas.
No, not everyone who runs will be a capital murderer. In fact, almost none will be. Some will be petty thieves, many will be drug users or dealers. But some will be robbers, rapists and murderers. Don’t we, as police officers, have a responsibility to at least find out why someone flees at the mere sight of a cop in an area with a crime problem? Maybe society would prefer that a murderer be allowed to escape, simply by running whenever he sees us.
On April 12th 2015, a petty criminal named Freddie Gray ran from police officers in an area known for drug trafficking. The officers chased and caught him. Due to someone else’s actions later, Gray died. Yes, whoever was responsible for his death deserves punishment; the officers who made the street arrest certainly don’t. But they’re being treated as if they’re responsible for Gray’s death, and may go to prison because they did their jobs and chased a bad guy in a bad neighborhood.
If I was a Baltimore PD officer, or if Marilyn Mosby worked here, I’d probably be facing charges with those officers. I chased criminals just like they did. I just confessed to chasing one down and arresting him, simply because he ran from me in a high-crime area. The Supreme Court says I was right, but hell, maybe I should be prosecuted too.
I and many cops I know strongly suspect the arresting officers are being charged because Baltimore was being torn apart by riots, and the city needed to sacrifice someone. The three officers who handled the transport and face the most serious charges are black, the three arresting officers white. Maybe I’m cynical (and I am), but I don’t think the rioters would have been satisfied if only the black officers were charged. So Mosby went after the innocent arresting officers too. Not because they deserve prison time. But because Mosby needed to score points with the right people.
If I was a Baltimore cop right now, I’d have a hard time doing anything more than sitting in my patrol car and answering calls. Because the moment Baltimore State’s Attorney Marilyn Mosby decides she can score points with raging mobs by sacrificing cops, she’ll do it.
Mad Duo, Breach-Bang& CLEAR!
Emergency: Activate firefly, deploy green (or brown) star cluster, get your wank sock out of your ruck and stand by ’til we come get you.
Chris Hernandez Mad Duo Chris (seen here on patrol in Afghanistan) may just be the crustiest member of the eeeee-LIGHT writin’ team here at Breach-Bang-Clear. He is a veteran of both the Marine Corps and the Army National Guard who served in Iraq and Afghanistan. He is also a veteran police officer of two decades who spent a long (and eye-opening) deployment as part of a UN police mission in Kosovo. He is the author of White Flags & Dropped Rifles – the Real Truth About Working With the French Army and The Military Within the Military as well as the modern military fiction novels Line in the Valley and Proof of Our Resolve. When he isn’t groaning about a change in the weather and snacking on Osteo Bi-Flex he writes on his own blog, Iron Mike Magazine, Kit Up! and Under the Radar. You can find his author page here on Tactical 16.