Posted on 05/02/2015 10:14:52 AM PDT by 2ndDivisionVet
Is Prosecutor Mosby correct that Gray’s arrest was unlawful because knife was legal?
A new talking point claiming that Freddie Gray’s original arrest was unlawful has arisen, propelled by the claim yesterday by Prosecutor Mosby that the knife seized from Gray by police was legal to possess in Maryland.
As reported by the New York Times:
Ms. Mosby faulted the police conduct at every turn. The officers who arrested him “failed to establish probable cause for Mr. Gray’s arrest, as no crime had been committed,” she said, describing the arrest as illegal. Officers accused him of possession of a switchblade, but Ms. Mosby said, “The knife was not a switchblade and is lawful under Maryland law.”
(VIDEO-AT-LINK)
These statements are remarkably insensible coming from someone who has attained the position of state prosecutor.
Mosby Issue #1: Spring-Assisted Knives Almost Certainly ARE Illegal Under MD Law
First, it raises a question of whether Mosby is simply facially incorrect in claiming that Gray’s knife is legal. It has been described in news reports as “spring assisted.” If that description is explicitly false and there was no spring assist mechanism, then it is likely that Gray’s knife was not unlawful.
If, however, it was spring assisted than it certainly seems it would be unlawful under Maryland law.
The Criminal Code of Maryland, §4-105, defines a “switchblade knife” as:
(1) a knife or penknife having a blade that opens automatically by hand pressure applied to a button, spring, or other device in the handle of the knife.
The way a spring-assisted knife mechanism works is that a spring in the handle of the knife takes over the opening of the blade after the blade has been opened a small amount by pressure applied to the blade by the users fingers. Thus, the statutory definition would certainly seem to apply to spring-assisted knives.
Clearly, if a spring-assisted knife falls within the statutory prohibition, and it has been widely reported Gray’s knife was spring-assisted, possession of this unlawful knife would provide probable cause for Gray’s arrest.
It is notable that Mosby has yet to address this issue of the precise mechanism of Gray’s knife. This is an odd oversight, given that this issue would likely be determinative of her claim that the knife was not unlawful. For those unclear on the mechanistic differences an assisted-opening knife and a switchblade, the video below may be informative (the first knife is the assisted-opening, the second the switchblade):
(VIDEO-AT-LINK)
Mosby Issue #2: Jurisdictional Sloppiness
Second, Mosby’s statement reflects remarkable jurisdictional sloppiness, especially coming from a state prosecutor who works primarily in a subsidiary jurisdiction of that state. As noted above, Mosby is quoted as explicitly stating that:
The knife was not a switchblade and is lawful under Maryland law. (emphasis added)
The description of the charge brought against Gray explicitly provides that he
"did unlawfully carry, possess and sell a knife commonly known as a switch blade knife, with an automatic spring or other device for opening and/or closing the blade within the limits of Baltimore City. (emphasis added)
It is notable that it is not at all uncommon, particularly in “blue” cities, for those cities to have substantially more restrictive weapons laws than do surrounding urban areas. Anyone who has ever driven through the state of Maryland will have seen that there is a dramatic difference in social culture between inner-city Baltimore and the bucolic Maryland countryside.
Indeed, the City of Baltimore has adopted as an ordinance of its City Code §59-22, which states in relevant part:
Switch-blade knives. (a) Possession or sale, etc., prohibited. It shall be unlawful for any person to sell, carry, or possess any knife with an automatic spring. (emphasis added)
Thus (and again assuming Gray’s knife was spring-assisted, as widely reported), even if Mosby is correct (unlikely) that the knife was legal under Maryland state law, it would still arguably have been illegal under Baltimore code §59-22.
Mosby Issue #3: Weapons Possession Usually Illegal When on Probation
Third, it raises questions about whether the knife was illegal per se, or whether it was the possession of the knife by Freddie Gray that was illegal. Gray was a convicted felon, and an examination of his criminal record suggests it highly likely that he was on probation when he was arrested and found with the concealed knife. (Anybody with definitive information on Gray’s probation status, please contact me directly.)
In my experience, it is an invariable condition of probation that possession of a concealed weapon of any type is prohibited.
Note that the explicit language in the Statement of Charges reads that Freddie Gray
"did unlawfully carry, possess and sell a knife commonly known as a switch blade knife, with an automatic spring or other device for opening and/or closing the blade within the limits of Baltimore City. (emphasis added)
Thus if Gray was on probation, and his probation prohibited his possession of a concealed weapon, this unlawful possession would provide adequate probable cause for Gray’s arrest.
Mosby Issue #4: Misunderstanding How Probable Cause Actually Works
Mosby’s asserts that the police failed to establish probable cause for Gray’s arrest on the basis that she later determined Gray’s knife (the basis for the arrest) to have been legal. As reported by the New York Times, Mosby claims that the arresting officers:
"failed to establish probable cause for Mr. Gray’s arrest, as no crime had been committed."
This is simply not how probable cause works in the context of an arrest .
Here’s what probable cause does not mean: That the officer making an arrest has determined that the facts on which the arrest is founded are true to an absolute certainty, and that the arrest becomes illegal should these reasonably believed “facts” later turn out to be untrue or mistaken.
This should be self-evident by the inclusion of the word “probable” in the phrase “probable cause.”
Arrests often go uncharged, and charges are often dismissed, and defendants are even acquitted at trial, often based upon a later conclusion that the underlying facts which suggested a crime are untrue or mistaken. None of these outcomes makes the initial arrest illegal.
When an officer makes an arrest based on an articulable statement of probable cause, that arrest becomes illegal only if the officer knew or reasonably should have known that no crime had, in fact, been committed.
In short, police are entitled to make reasonable mistakes, and such a reasonable mistake does not make the arrest illegal.
Such a mistake may, of course, make further prosecution of the offense impractical or outright unjust. But that’s a completely different matter than whether an arrest was unlawful.
In the Gray instance, the arresting officer may in fact have been mistaken about whether a spring-assisted knife falls within the statutory prohibition on possession of a switchblade, or on whether Gray’s possession of the knife while (presumably) on probation was an offense subject to arrest.
But unless he actually knew or reasonably should have known either of those possibilities to be the case, legally-speaking probable cause for the arrest existed, and the arrest itself was not a crime.
Again, if the officer were mistaken the arrest may be defective for purposes of further prosecution. But this does not mean that an officer is limited to making an arrest only in circumstances where criminal conduct is a legal and moral certainty.
A society in which this were required, or permitted would be, I expect, a society that most Americans would find an unpleasant place to live.
Thus, even if it turns out that the knife was legal and that Freddie Gray were legally permitted to possess the knife under the circumstances, if the police officer reasonably believed that either of these were offenses subject to arrest, and neither knew or should have known that this belief was incorrect at the time of the arrest, then there existed probable cause for the arrest, and the arrest itself is entirely lawful from the context of that officer’s conduct.
The apparent political theater in the announcement of the charges is getting growing criticism, reminiscent of what accompanied the George Zimmerman over-charging and politicized prosecution. Alan Dershowitz on NewsMax:
(VIDEO-AT-LINK)
If they're tried between late October and early March the consequences will be considerably less violent.
“He was a known criminal and resisting and therefore dangerous.”
He was resisting? Says who? Not the officers, who said that he was arrested without force or incident.
Are you just making that up?
Man, are you in trouble.
See, for example:
I understand the argument for hassling habitual troublemakers in the interest of public order, but they’re not supposed to wind up near-dead before they reach the station. I wonder if the screwup was that Freddy was acting out, so they restrained his feet,. Without buckling him in, that could have made him more vulnerable to van stops and turns— he could easily trip and be unable to protect himself. Separate issue from the pocketknife beef, of course.
Yes, just like the rioters and looters will be held accountable.... oh wait
No, that’s Marshall Dillon.
Mm people call it a sling blade. Mmm I call it a kaiser blade. Mmm
Are you sure it’s not Martial Dillon?
Switchblades have been illegal in most places since the gang wars of the 1950's (think West Side Story), which today's gang wars make look like child's play.
Not in Virginia. Here in Virginia a legal knife can open with a wrist flick, a thumb flick or any other kind of flick. An illegal knife will open when simply held in a blade up at 90 degrees with no flick. That is, there is no bias of any sort to keep the knife from simply opening when held up. Thus a gravity knife almost always has a lock to keep it shut although other knives can also have locks to keep them shut.
It seems a definate possibility if not a liklihood.
Gray was not known to use heroin, only to deal it. The fact that it showed up in his Tox screen may mean that he swallowed what he had to keep from being found in possession. That would explain his problems breathing and his reported erratic behavior in the van.
“There’s a strong “anti-cop” contingent here....”
And they pretend to be conservatives.
Well done.
....”If you run from the cops, expect to get your ass kicked”.....
They seem to either run or get in their faces like an ape pounding on his chest to show he’s tough.
Imo....trying to get the black population to integrate in this country will never work, here’s a comment in part from an individual who has followed the efforts of doing so for years....
....”Since 1965, when the elites opened America’s doors to the Third World, immigrants from Asia and India–people who are not white, not rich, and not “connected”–have quietly succeeded..... While the children of these people are winning spelling bees and getting top scores on the SAT, black “youths” are committing half the country’s violent crime–crime, which includes viciously punching random white people on the street for the thrill of it that has nothing to do with poverty.....
....The fundamental problem is that white people and black people are different. They differ intellectually and temperamentally. These differences result in “permanent social incompatibility.”
“White people aren’t out to get black people; they are just exhausted with them. They are exhausted by the social pathologies, the violence, the endless complaints, and the blind racial solidarity, the bottomless pit of grievances, the excuses, and the reflexive animosity.”
(If you go back in history they remain profoundly attached to their native history...a tribal people.... and I question greatly if they can ever be as American as they desire because the tribal instinct remains in their culture.)
There is a difference between a jack booted bully [ies] and a police officer[s]. Some can see the difference .
I suspect she’ll take it to a grand jury if it looks like she’s not going to get the judge she wants for the prelim.
A grand jury gives her a chance to stretch out a weak case because the process allows her to make a one-sided presentation without fear of refutation, and to do it all in secrecy. At a prelim, on the other hand, the defense gets a chance, and a judge who feels the charges are bogus can throw out the case.
If the judge’s nickname isn’t some variation on the word “Hanging”, there’ll be a last minute direction change to the GJ.
The statement re drug testing made reference to the U of Maryland hospital, where he was taken for treatment. The ER probably did a screen. The actual tox test either isn’t back yet (likely), or is being kept secret. The thing is, the post-mortem test isn’t going to be much use. Lots of time for whatever was in his system to clear out, and lots of hospital drugs to be added.
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