Law & the Courts

Freddie Gray Is Not Trayvon Martin or Michael Brown

A Baltimore Police captain talk with a young protester. (Mark Makela/Getty)

Here we go again. The death of young black man at the hands of the police. Public unrest and violence. A specific allegation of police misconduct and allegations of broader problem of police–community relations. Notwithstanding an existing local investigation, the Department of Justice Civil Rights Division, egged on by the usual political suspects, pledges to investigate to determine whether it should file federal civil-rights charges. Calls for a broader “pattern and practice” civil-rights investigation mount.

In the wake of Freddie Gray’s death while in police custody and the destructive rioting in Baltimore that followed, it is easy for conservatives to be cynical about the actions of the DOJ and its newly minted attorney general, Loretta Lynch. After all, haven’t we heard this all before? Echoes of the Trayvon Martin and Michael Brown cases seem to ring throughout every statement from President Obama and the DOJ. Isn’t this all just for show? Won’t this case, in the end, be the same as the others — the proverbial sound and fury, signifying nothing?

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In a word: no. The case of Freddie Gray and the larger issues surrounding the Baltimore Police are different from the others. Conservatives should pay attention, because the situation in Baltimore provides a good example of how to analyze the appropriate role of DOJ’s Civil Rights Division in investigating and curbing police misconduct. In fact, what’s happening in Baltimore provides a great contrast to Ferguson, where (as I wrote at the time) the DOJ’s intervention seemed mostly a PR move. In Baltimore, the DOJ has good reason to get involved.

The Death of Freddie Gray

Freddie Gray died in police custody after a fairly lengthy multi-stop van ride in restraints. At the time of his death, according to media reports, he had a severed spinal cord and a crushed larynx. The Baltimore Police Department has acknowledged that the officers involved violated its own procedures, at a minimum, by (1) not calling for medical assistance earlier; (2) not securing Gray while he rode in the back of the van. Does this amount to criminal conduct, and was it the cause of Gray’s death? No one knows at this stage, and the officers are entitled to a presumption of innocence. But it certainly appears that, at best, the officers violated policy or engaged in some negligent conduct. The worst-case scenario — given the absence of adequate information about what happened during the van ride, which ended in death — is obvious.

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Moreover, Freddie Gray’s death occurred while he was in police custody. This was not a matter of a split-second, life-or-death decision to use deadly force in response to a perceived threat (as was the case with Officer Wilson), where the law appropriately provides a lot of deference to officers in a situation none of us would want to be in. A review of successful federal criminal civil-rights prosecutions for excessive force demonstrates that the DOJ is much more likely to be able to prove a federal civil-rights violation when the victim is in custody, which greatly diminishes any argument that use of force was an appropriate response to a threat. In short, the question of whether the Freddie Gray case could potentially result in an indictment answers itself: It could (of course it may not), and it is the type of case that has resulted in charges in the past.


We all have the right to be free from excessive force and punishment without due process, regardless of race. These are bedrock civil rights. Unfortunately, too many people, conservatives included, equate “civil rights” and “racial discrimination” and surmise that any civil-rights investigation requires an allegation of racism. The Freddie Gray case serves as a reminder that excessive-force cases do not depend on race: The Baltimore Police Department is a majority-minority department. The outcome will not hinge on the race of the officers involved, but on their actions.

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In contrast to Ferguson, there is no racial angle to the politics of Baltimore. All the important players are black, from the mayor to the chief of police on down.

Inflicting force on a restrained individual to the point of death, if proven, is one of the most egregious misuses of governmental authority there could ever be. Conservatives should not let their respect for law enforcement – or their skepticism for race hustlers such as Al Sharpton who always seem to appear and demand “justice” regardless of the circumstance — obscure a legitimate investigation into the ultimate government overreach.

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Moreover, in contrast to Ferguson, there is no racial angle to the politics of Baltimore. All the important players are black, from the mayor to the chief of police on down. But black leadership does not inoculate a city from civil-rights violations — as demonstrated by Baltimore’s $5.7 million dollars in settlements for civil-rights violations since 2011 (as reported by the Baltimore Sun). Investigation of the Freddie Gray case might help the public understand that racial-discrimination cases and civil-rights cases are not one and the same thing.

‘Pattern and Practice’ of Constitutional Violations

The Civil Rights Division has statutory authority to implement reforms where it can show a “pattern and practice” of constitutional violations. We’re already hearing calls for such an investigation in Baltimore. “Pattern and practice” cases are among the most controversial in the Civil Rights Division’s portfolio, as reform (and monitoring of reform) is not cheap, and the DOJ has frequently been criticized for going too far in its remedies and “taking over” a law-enforcement agency. I have complained when the DOJ has opened up a “pattern and practice” investigation of a law-enforcement agency that had no record of paying civil-rights judgments — when there weren’t any proven violations, how could there be a pattern? The Baltimore Police cannot make that argument, as investigators can likely piece together a “pattern” from cases that have already been adjudicated. While I am sure I will disagree with the level of proof this DOJ will deem sufficient to establish a pattern, and I would be fearful of DOJ overreach into all policies and procedures of Baltimore Police Department, I will not complain when the “pattern and practice” investigation is announced (and it will be). If the “pattern and practice” statute is on the books, it is hard to think of where it would be appropriate to open such an investigation if not a city with the record of police misconduct payments that Baltimore has.

Civil-Rights Cases Matter

#related#Most conservative and Republicans shy away from discussion of civil-rights cases because they feel they can’t win. Given their inherent skepticism about the effectiveness of federal intervention in most problems, there will always be someone willing to do more than conservatives would — to promise more and overreach more in support of the stated good. But that position is its own form of freedom; conservatives can “call them as they see them,” without fear of offending the identity group in question, which will oppose them regardless. In the cases of Trayvon Martin and Ferguson, many conservatives rightly pointed out the overreach and the rush to judgment of many onlookers. But in the case of Freddie Gray, there are clearly matters worth investigating, and we should welcome efforts to look into them.

SLIDESHOW: Baltimore Riots

Of course, none of the above means I won’t cringe when I see Al Sharpton at a march in Baltimore using his usual overblown rhetoric to unfairly attack the police. I will reach for the Tums as the usual suspects jump to conclusions prematurely, ignore the very real possibility that a legitimate investigation may not yield evidence of crime, and propose “solutions” for the Baltimore Police Department that are expensive, bureaucratic, and of questionable worth. I understand the temptation of many conservatives to reflexively defend the police, who have been under siege in the streets while the vast majority of them have done nothing wrong. But if conservatives want to claim the mantle “constitutional conservative,” they must make sure that constitutional rights of Freddie Gray, and the people who live in his neighborhood, are scrupulously protected.

— Robert N. Driscoll is a partner at McGlinchey Stafford in Washington, D.C., and a former deputy assistant attorney general in the Civil Rights Division of the United States Department of Justice.

Robert N. Driscoll is the managing partner of McGlinchey Stafford’s Washington, D.C. office and the co-chair of its government-investigations practice. He previously served as a deputy assistant attorney general in the U.S. Department of Justice's Civil Rights Division.


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