Law & the Courts

A Prosecution That Threatens a City

Marilyn Mosby, Maryland state’s attorney for Baltimore City (Andrew Burton/Getty)
Criminalizing reasonable police work

An incompetent prosecutor — or worse, a politically driven prosecutor who also happens to be incompetent — can do worse things than blow an important case. The more one scrutinizes the case against six Baltimore police officers said to be implicated in the death of Freddie Gray, the more one worries that the prosecution will cost lives.

I’ve recently explored the incoherent and patently politicized set of charges filed last Friday by Marilyn Mosby, the social-justice activist who doubles as the Maryland state’s attorney for Baltimore City. The prosecutor has alleged a second-degree “depraved heart” murder offense and other homicide charges that contradict her “depraved heart” theory. The complex case was rashly lodged before investigators had come close to completing their witness interviews and other reports. Ms. Mosby admitted, with clueless pride, that she’d filed a murder case because she heard “the call of ‘no justice, no peace’” from demonstrators across the country.

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The homicide charges are of immediate danger to the police officers named in them. By contrast, everyone in Baltimore is endangered by Ms. Mosby’s decision to charge police with false imprisonment.

The reporting on this allegation has conveyed a fiction as if it were a fact. We are told that when police apprehended Freddie Gray, it turned out the knife he carried was not illegal to possess under Maryland law. Therefore, the theory goes, he was arrested on false pretenses and his imprisonment was unlawful.

Everyone in Baltimore is endangered by Ms. Mosby’s decision to charge police with false imprisonment.

Already, the claims underpinning this theory are suspect. Fox News’s Peter Doocy reports that lawyers for Edward Nero, one of the charged police officers, contend that possession of the knife — a spring-loaded switchblade — is illegal under the law of Baltimore City, even if it is not proscribed by state law. Defense counsel demand that the prosecutor make the weapon available for public examination.

Obviously, the state’s attorney for Baltimore City should be expected to know the laws it is her duty to enforce.

So who is right? Ms. Mosby’s response is not encouraging.

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On Wednesday, she issued a statement declaring, “I refuse to litigate this case through the media.” This, from the same woman who announced the charges in a demagogic press conference last week. The prosecutor also preciously asserted that she could not “ethically” disclose evidence to the public prior to the trial, although she did not seem reluctant to “ethically” inflame the jury pool during her diva turn last week. For good measure, she added that she “strongly condemns” leaks by law-enforcement officials — not because they embarrass her (perish the thought!) but because leaks are “unethical” and “damaging [to] our ability to conduct a fair and impartial process.” Yes, of course.

If there is anything like a fair and impartial process in Baltimore, a judge should be examining that knife right now, even if the public does not get to see it.

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I am betting that, regardless of whether the knife is technically illegal, the prosecutors in Ms. Mosby’s office have relied on such knives in hearings and trials to argue that suspects who possessed them should be denied bail, convicted, or sentenced harshly.

#related#​Moreover, since Ms. Mosby has apparently developed a deep interest in ethics since last Friday, she may now know that even if she herself is unclear on the law, all the prosecutors in her office have obligations to disclose to the court and defense counsel any exculpatory information they have. If Ms. Mosby’s office routinely argues that suspects are guilty or pose a threat to the community based on knives like the one Mr. Gray had when he was arrested, that is something they need to come clean about.

But let’s put that aside for now. The point to focus on is that Ms. Mosby’s theory of unlawful imprisonment is dangerously wrong.

The law allows police to be wrong without being criminally culpable.

As we understand the facts, Mr. Gray was encountered by police in a high-crime area. Upon making eye contact with an officer, he fled. Based on this suspicious conduct, police pursued him, found the knife on his person, and placed him under arrest. It was apparently during his time in custody thereafter — as opposed to in the immediate circumstances of the arrest — that Gray suffered the injuries that killed him.

These facts do not establish unlawful imprisonment. The law allows police to be wrong without being criminally culpable. If this were not the case, police would not make arrests, even if crimes were committed before their eyes, for fear that they could be prosecuted, sued, or fired if a prosecutor or judge second-guessed their judgment.

It is not at all clear to me that the police were wrong to pursue and arrest Freddie Gray. Much has been made by commentators of the fact that the police did not have a warrant for Gray’s arrest or see him commit a crime when they ran after him. This is an unrealistically narrow conception of probable cause.

Imagine the not-at-all-unusual situation in which, in a high-crime area, a suspect who has just, say, mugged a woman and taken her wallet, sees a police officer as he’s leaving the scene. The police officer did not see the mugging. The suspect makes eye contact with the officer and flees in the opposite direction. It would be cold comfort to the woman who has just been assaulted, and infuriating to most law-abiding citizens, if the officer decided not to pursue the suspect — who got away, to mug another day — just because he hadn’t witnessed the mugging.

Our jurisprudence teaches that “reasonable suspicion” and “probable cause” are not hyper-technical terms; they are commonsense concepts.

And, of course, the officer is not required to let the suspect get away. In the hypothetical circumstances just described, a cop would have a good-faith basis for suspicion of wrongdoing, even if he did not yet have probable cause. The law permits a brief investigative stop in that situation. The suspicion would heighten if the suspect continued running away after the police officer directed him to stop. In the brief detention, the police officer would be permitted to pat the suspect down, and to seize a weapon if the suspect had one. And if the officer believed in good faith that the weapon was illegally possessed, he could make an arrest.

Some counter that it is not a crime to run away from a cop. True enough. But our jurisprudence teaches that “reasonable suspicion” and “probable cause” are not hyper-technical terms; they are commonsense concepts that ask how a reasonable, experienced police officer would judge what he sees in the heat of the moment.

The average person who runs away from police has done something wrong; it is not unreasonable for a cop in a crime-ridden area to conclude that he is probably dealing with the average person, not the unusual type who runs for no apparent reason. And the whole point of the investigative stop is that police can ask a few questions and let the detainee go on his way if there is no good reason to detain him further.

Police have the right to be wrong, as long as they are wrong in a reasonable way. That is the case not only when they detain someone but when they decide they have grounds to make an arrest. If a police officer finds on a suspect what he believes in good faith is an illegally possessed knife, he can arrest the suspect. If it turns out that the knife is actually legal, the remedy is to vacate the arrest — not to prosecute the cop for unlawful imprisonment.

It’s a mistake, not a crime.

#related#​Note that I am not arguing against a prosecution for some form of involuntary manslaughter in the death of Mr. Gray. That is a different issue from whether he was properly detained and arrested in the first place. Once the police have a suspect in their custody, they have a duty to keep the suspect safe and secure. It seems absurd to me, on the facts as we now understand them, for a prosecutor to charge murder when there appears to be no evidence of intent to kill (a fact the prosecutor implicitly concedes by the contradictory charge that Mr. Gray’s death was a case of involuntary manslaughter or negligence). Yet it is entirely possible, if not probable, that death was caused by criminally culpable police misconduct.

There is, however, much more at stake here than finding out exactly what happened to Mr. Gray, as important as that is.

If police are now to conclude that they cannot, without fear of being prosecuted, take routine investigative steps based on reasonable suspicion, communities cannot be protected. There can be no security and no commerce. Innocent people will be preyed upon and killed.

The unlawful-imprisonment charges filed by prosecutor Marilyn Mosby are not even social justice, much less justice. They are a death sentence for Baltimore.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.



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