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.
C’mon Chris, you know why these guys were arrested. The Narrative is about white cops abusing a black criminal guy. The transporting cops were minorities, but these cops were white.
Kind of like the drunk looking for his keys under the light because it’s brighter there than where he lost ’em, Mosby charges these cops and she and her media enablers can run with the raaaaacist-with-five-a’s narrative.
Meanwhile, fifty-something people have been shot dead in Baltimore since Freddy assumed ambient temp, and no one gives a damn about them. Last I looked (and the count was about 30 then) they hadn’t even closed any of the cases.
Great piece CH. I just want to say this Gray thing happened due to the fact he ran. And your piece is all about running and RS and PC. What blows me away is the fact that I have heard many people of color in high places and stature publicly say that black parents have and continue to teach their children to run from the police if they are stopped. I heard a prominent black state it publicly on CNN 2 months ago when the riots occurred in Fergusson. Why in Gods name would responsible parents “teach” and “preach” to their children to “run” from the police??? In 3 words…because their idiots! Shame on parents for teaching their children such idiotic behavior.. Putting them in harms way instead of teaching them to stop and be cooperative to the police. Your childrens blood is on your hands parents, not the police!
“Those knives aren’t Maryland switchblades, as far as I can tell…”
I wouldn’t think so either but there have been MANY cases where someone was arrested and charged based on the MD statute alone with those types of knives. I think it’s a cheap charge but the point is, state’s attorneys have been fine with it. Until now.
Chris:
Your article was well written and researched.
I am an attorney who also defends police officers. I fully agree. In shprt, you got it right!
Chris, this is one of your best, but I’m afraid there’s not much point. Those that get it already knew this, and for those that have their minds made up about us, no amount of explanation will make a difference.
I had a long response typed out, but you know what, it ain’t worth it.
You police officers keep wondering why you are losing the support of the people who have traditionally supported you, but you can’t see the forest for the damned trees.
No, let’s hear it. I’m guessing, from what you wrote, that you no longer support police officers even though you used to. I’d love to hear why.
There is a percentage of the population in this country who do not support the military, and if you ask them why, they might mention the Haditha killings, the Mahmudiyah rape/murders, the Maywand District murders, or any other number of incidents.
I could argue, quite rightly, that these incidents are exaggerations, have been blown out of proportion, taken out of context, misrepresented, or are not representative of the vast majority or US military members who have served honorable in Iraq and Afghanistan. And they might then say something about me not being able to see the forest for the damn trees.
Freddie G saw police and ran…later on once apprehended for some unknown reason after the 3 police got off of him and the police had to carry or drag him into their vehicle because he clearly could not walk or run anymore at that point there for the arresting officers should be charged since he died and since them arresting him caused an injury that clearly prevented this young man from walking again. Cops need to exercise their trainings which don’t excuse them from being quick to grab their pistols and shoot civilians in a manner that can cause their death. Cops know how to shoot to stop a civilian and not kill them why not use your tasers gun, instead when a civilian. Does not have a gun
Nothing you said made a damn bit of sense.
As good article by Chris, as expected.
Interestingly, Clair Wolfe recently linked an article that, in this context, might be titled “In defense of running away”. Also worth reading: http://blog.longreads.com/2015/05/26/the-art-of-running-from-the-police/
Look at the video on Youtube, Freddy Gray is standing on the back step of the wagon with one officer holding his arm. He is standing and then climbs the rest of the way into the wagon.
I have been a cop for twenty plus years. I have loaded dozens of people in a wagon. Many will go limp and refuse to walk to the wagon. As I have heard them say “If you want to take me to jail you gotta work for it”. When he got to the back of the wagon he stepped forward to sit down. If his legs did not work because his spine was fractured at that point he would not have been able to climb in a position himself in the back of the van. I think he was tossing himself around in the back of the van, was gonna try to get paid and Karma got him. It is unfortunate that he died, that a city burned, and a proper investigative review was not done prior to charging. If you believe the riots were bad the week of the Gray funeral, wait and see how bad the riots are if the all of the officers are acquitted or just the white officers are acquitted.
Gray was a criminal! I agree… But Am I the only one who see’s that he was not walking when put in the paddy wagon? I believe something MIGHT have happened in the struggle that damaged his spine. Yes MOST likely it was an accident, things happen. But This should not be COVERED UP. Fess up to what happened, and how if happened. It just seems that there is a cover up, THAT IS THE PROBLEM!
Edmond that’s the problem with opinionated peopeople who have no idea what they’re talking about and assume. We all know what assuming does, correct? Makes an ass out of u and me. Working in corrections, what Mr. Gray is seen doing on video is what we refer to as “dead weight”. Often when somebody is non compliant, or disagrees with the approach of action being taken against them, they simply think that by refusing to walk and move their feet they are protesting and achieving something. In reality, this storyline can educate the public by teaching them that when an Officer of the law tells you to do something, you do it. You don’t have the right to scream profiling, and then flee on foot, later refusing to walk because you disagree with the idea that you might be going to jail. I may be a little bias to LE but come on. The theme of all of these “police brutality” headlines in the news lately have 1 common theme. The suspect thinks they are above the law and have the right to ignore police directives and resist arrest!
And now the city wants FEMA to reimburse it 20 million for damage sustained during the riots. Does letting them riot really seem like a good idea now. No accountability.
This became covered later in the article, but just to review –
“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”
How is that not evading?? Of course if the CJ system in Maryland was helmed by competents, the place wouldn’t be a high-crime shthle.
“The Supreme Court ruled (15 years ago) 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”
Thank you. Yes.
(Plus, jk, being able to fly merely from seeing a police officer would be suspicious to say the least.)
The other matter was there were six officers charged, not three. 100% of the remaining officers (Caesar Goodson Jr., William Porter, and Alicia White) are, less conveniently, the same race as Freddie Gray, and were generaly charged with the far more serious charges (reckless endangerment, second degree depraved heart murder, involuntary manslaughter, second degree assault, manslaughter by vehicle) than the more often media-featured white officers (misconduct, second degree assault, etc).
Additionally yet another person of poor innocent Freddie Gray’s race, Donta Allen, arrested and in co-custody inside the same vehicle as Gray, went to quite a bit of trouble on multiple occasions to attest that Gray was bashing himself repeatedly into the inside of the vehicle while it was in transit. That would be the source of Gray’s injuries, and Allen not having similar injuries point to it not being any manner in which the vehicle itself was being driven.
An article from the Baltimore Sun from today titled “Mosby’s celebrity about more than just a big case” is narrowing in on the real problem: polarizing demagoguery, asking whether village idiot turned prosecutor Marilyn Mosby is a “national black hero” with a passion for justice or a self-aggrandizing opportunist shamefully playing politics”, – forwarding that she’s “a two-bit political hack” and calling the matter “sweeping charges based on faulty evidence,” as she subordinated “her duty to do justice as a prosecutor to her role as a politician.”
It is sad that they don’t want the police to do their job unless it is to protect them.But if its something that their family is doing wrong, you better not mess with them. But if its happening to their family then you better be there in a hurry. Some people these days. I just don’t understand.
First I value LEO very much I have worked hand in hand with them for my entire adult life as a paramedic. If you arrest someone, and they ask for medical assistance then LEO should provide it period. The police are responsible for the health and welfare of a person once they are taken into custody period. Call for a medical clearance, or at a minimum go directly to the ADC where there is a nurse. Driving in what could only be described as an overtly indirect route was a very poor decision. The prisoner was placed facedown and cuffed with no seatbelt when he was asking for medical assistance. The officers could have better defused the situation by allowing paramedics to provide an assessment. He should have had a seatbelt on. I would never transport a patient without seatbelts period. Injuries occur in legitimate takedowns, we all know that. A man is dead and whatever he did wrong on that day the sentence was not death. What he did in the past was irrelevant once he was detained, arrested, and place in cuffs. He no longer represented a threat to the officers. The officers failed to serve and protect someone who they were responsible to protect. You cannot decide who deserves the blanket of security you swore to provide. I don’t know what convictions the evidence will support. Defending them blindly or convicting them blindly is wrong. Call the medics and cover your ass, we don’t mind. Let the bean counters figure out how to put more LEO on the streets because 3 are tied up in the ER. If they had called for a medic Freddie Gray may still be alive and no one would be accused of having a depraved heart. Several of the officers would have never encountered Freddie Gray. I fear the greatest rush to judgment here was the sighting of a suspect, arrest, conviction (based on prior history and the perception that his medical complaints were as bogus as the other 99% of those detained are) , and execution within 1 hour. The 1% bit them in their ass like a pit viper. The charges were purposeful stacked in order to try to get 1 or more to roll on the others. This is a standard tactic in the law enforcement/prosecution arena, I’m not sure it has boundaries. Follow your own SOP; they are there to protect you. I hope this department and every department learns from this event. —a 27 year paramedic in Fairfax County Fire and Rescue Department
Karrie, a large part of the problem is the amount of opinions that are put forth without sufficient information to do so. I have said from the beginning that this case is going to boil down to a stupid, dumb mistake, and that mistake was the defendant not being seatbelted in, in the back of the wagon. The route taken was not an indirect route as you surmise since his original destination was to Central Booking. But as the wagon was going to that destination, the driver/officer got another call for a 10-14 wagon run in another location. Sketchy information to the public says that at some point, the wagonman, or another officer, called for an ambulance, but that ambulance was, in the mind of the driver, taking way too long, so he told the police dispatcher to have the ambulance respond and meet them at the WSestern Dictric Stationhouse.It seems as though the greatest rush to judgment is not what you suppose, but to convict one or all of the officers without the benefit of all the facts. Just to emphasize, medics were called, medics responded, medics rendered aid.
I live 20 miles NE of Baltimore City. Paramedics were called and were late arriving, the wagon decided to leave once they didn’t hear anything from the EMTs
Just read the news this morning. 29 shootings and 9 dead in Baltimore over the weekend. Yep, that Prosecutor is really helping out the citizens by going after the police. Congrats to her. BTW, not a single riot or fuck was given over the injured or dead by the masses. Hmmmm….
Well stated sir. The citizens of Baltimore are the ultimate losers here. Officers responded to over 20 calls of shots fired over the Memorial Day weekend. 9 reported deaths.