A scene from our future…
Ring, ring… “Police Department, may I help you?”
“There are suspicious men on my sidewalk, maybe selling drugs, maybe gonna rob somebody.”
“Well, thank you for calling and good luck with that.”
“Aren’t you going to send somebody?”
“Sorry, ma’am. We don’t do that anymore. Call us back if they actually commit a crime. Have a nice day.”
Trial begins today in a case that may have serious effects on modern policing in the United States. It may prevent cops from doing their job, the job the public expects. The above scenario is fiction, but not unlikely.
Baltimore Police Officer Edward Nero is charged with illegally arresting Freddie Gray in April, 2015. Gray subsequently was found to have a spinal injury that eventually proved fatal. No one knows – or is telling – how this happened, but the Baltimore States Attorney has charged six police officers in Gray’s death.
Nero, 30, at the time a three-year officer, is charged with assault and other things, not for breaking Gray’s spine himself but for making the arrest; essentially, for improperly touching Gray without legal justification. You can’t arrest someone without touching him, and Nero did, and theoretically he wasn’t supposed to. After Gray was touched, and arrested, something terrible happened, and it’s allegedly Nero’s fault.
Baltimore States Attorney Marilyn Mosby argues the following: that Nero and others should not have chased Gray when he bolted as officers came near him in a drug zone; that they did not have a reason to grab him to investigate why; that they did not have probable cause to place charges against him when they found a spring knife in his pocket.; and that the knife was legal, so the arrest was not.
That the U.S. Supreme Court disagrees, as does the Baltimore criminal code, doesn’t seem to matter in this politically correct prosecution. Race riots followed Gray’s death, and the public, in between burning police cars, blocking highways and looting liquor stores, demanded justice. So Mosby gave them a version of justice that twists existing laws and may kneecap the effectiveness of police for years to come – or forever.
Mosby states, correctly, that Maryland law does not criminalize possession of a spring-assist folding knife of the type Gray carried. Mosby, an elected official making a popular charge, ignores the fact that the Baltimore criminal code 59-22 states the following: No person may sell, carry, or possess any knife with an automatic spring. Reminder: Baltimore cops, bringing Baltimore charges. In Baltimore.
Mosby also disregards the U.S. Supreme Court which ruled that police may chase and detain subjects who run from them unprovoked in high crime or high drug areas. In 2000, in reviewing a similar unprovoked runner arrest, the Supremes wrote, in part: the stop occurred in a “high crime area”…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…We conclude (the officer) was justified in suspecting that (the suspect) was involved in criminal activity, and, therefore, in investigating further. (For the full case finding, see Illinois v. Wardlow, 528 U.S. 119.) Investigating Gray meant stopping him, by whatever reasonable means were necessary, which included tackling a runner in a concrete, urban environment. And this has not yet been ruled out as the moment of Gray’s injury, though prosecutors allege it occurred while Gray rode unsecured in a prisoner transport van.
So Officer Nero was okay, per the Supreme Court, to stop Gray. And okay, per the criminal code, to charge him. So the judge will certainly find in his favor, find him not guilty, right? The courts always do the right thing. Right? What if they don’t?
Cops need probable cause to make an arrest. My law professor at the police academy (all right, 30 years ago but it still obtains, thanks Mr. Powell) defined probable cause as, “specific and articulable grounds to believe a specific crime has been committed and a specific person committed it.” Take our caller, above. Cops arrive and see a guy drop silver packets that are consistent with street packaging for PCP, pick up and confirm the drugs, and arrest him. Specifically him, doing the specific thing of holding and dropping specific illegal drugs. Good to go.
Short of seeing a crime occur, cops need reasonable suspicion to stop persons while conducting an investigation. So, the caller calls and cops roll up on two men standing where she said they would be – in front of her house. And it’s in a drug zone. And, just for fun, let’s make it 3 a.m. in a snow storm. It is reasonable to suspect they are up to no good. So courts have allowed officers to make reasonable investigatory stops in circumstances like these. And that can include a pat down, touch search of pockets and beltlines for weapons if felony crimes are suspected, like drug possession or robbery. (See Terry v. Ohio, 392 U.S. 1.)
But in this politically critical case things may not go down logically, reasonably or in any way understandably. Remember, we’ve criminally charged an on-duty cop with making a lawful arrest. So maybe down the road, police find themselves governed by Baltimore v. Nero, a potential 2019 Supreme Court case that says, well, who knows what right now. But maybe it will say that cops need warrants before making arrests.
So obtain a warrant prior to grabbing someone, officer. At first glance that doesn’t sound so outrageous. Making cops run their cases by a judge or magistrate before arrest is good, right? Tell that to the woman bleeding in the street as she, and her responding officers, watch a suspect run away because they can’t touch him. Tell our lady caller above that police will respond when someone, presumably her, gets an arrest warrant for them. Tell our patrol officers that the guy they see with a suspicious, gun-shaped bulge in his pants is untouchable.
Well, couldn’t the police just walk up and talk with the suspects, get information, put a case together that way? Maybe, but maybe not in towns like, for example, Alexandria, Virginia. In 1988 two cops, let’s call them Bergin and Chiotta, walked up to a man in an alley, let’s call him Richard T. Richard was hunched over picking up and examining small, light-colored objects that could have been pebbles but were in fact, crack cocaine discarded in the street by dealers during police drug operations the night before (operations performed by the afore-mentioned Bergin and Chiotta, among others.) We suspected Richard T. was a “chicken” – what we called the habitual crack-pickers after police jumps – but even in our close approach couldn’t tell crack from street junk. So I said, “Hi there.”
Richard T., who hadn’t noticed two uniformed police officers walking up to him despite daylight and an otherwise empty neighborhood, popped his eyes, stood up and said, “Hi.”
“How you doing?”
“What’cha got in your hand, Richard?”
And he opened his hand, admitted the objects were crack cocaine and we took him to jail. Subsequently, his attorney persuaded a judge that Richard was too stupid – his words – to know Richard didn’t have to reveal his crime to police.
The judge took it further. In finding Richard not guilty of possessing the cocaine we found in his hand, the judge, let’s call him Alexandria Circuit Court Judge Donald M. Haddock Sr., quipped that “the mere presence of uniformed police is coercive,” and thus would compel persons to admit all kinds of things against their own best interests.
So… a future in which police may not stop, question or even approach suspects on the street, or risk arrest themselves. Try proposing that set of rules to your community’s new police force. The new one that replaces the existing department, all of whose members resigned to get better-paying, easier, safer and, now, legally-possible jobs that don’t present them with daily opportunities not just to get shot or stabbed, but arrested and convicted.
Arrested while following the law as set by the U.S. Supreme Court. Like Edward Nero.
Have a nice day.