Second Freddie Gray Trial Ends In Acquittal Of Baltimore Cop

An acquittal in one of the six Freddie Gray cases, but not an unexpected one.

Baltimore Police

The second of six officers involved in the arrest that led to the death of Freddie Gray last year, an even which sparked a week of protests and rioting, ended with the officer being acquitted of the charges against him:

BALTIMORE — A police officer was acquitted of all charges on Monday in the arrest of Freddie Gray, a black man who sustained a fatal spinal cord injury while in police custody. The verdict is likely to renew debate over whether anyone will be held responsible for Mr. Gray’s death.

The officer, Edward M. Nero, sat with a straight back and stared forward as Circuit Judge Barry G. Williams, who ruled on the case after the officer opted to forgo a jury trial, read his verdict on the charges of second-degree assault, misconduct and of reckless endangerment.

“The verdict on each count,” said Judge Williams, concluding his reading after about 30 minutes, “is not guilty.”

“The state’s theory has been one of recklessness and negligence,” Judge Williams said. “There has been no evidence that the defendant intended for a crime to occur.”

“The state’s theory has been one of recklessness and negligence,” Judge Williams said. “There has been no evidence that the defendant intended for a crime to occur.”

Officer Nero, who was implicated not in the death of Mr. Gray but in the opening moments of his arrest, then stood and hugged his lawyers as supporters pressed forward to congratulate him. He wiped away tears and, at one point, embraced Officer Garrett E. Miller, who is also charged in connection with the arrest of Mr. Gray

Perhaps a dozen protesters gathered outside the courthouse in the moments after the verdict was rendered, and some chanted the familiar protest cry, “No justice, no peace.”

“To see that officer walk away, and still no accountability, that hurts me the most,” said the Rev. Westley West, a frequent presence at demonstrations related to Mr. Gray’s death. “That could be me.”

The verdict, the first in any of the six officers implicated, comes a little more than a year after Mr. Gray died in April 2015. The first trial, against Officer William G. Porter, ended with a mistrial in December. Mr. Gray’s death embroiled parts of Baltimore, which has a history of tension between the police and its residents, in violent protest and became an inexorable piece of the nation’s wrenching discussion of the use of force by officers, particularly against minorities.

Many demonstrators had felt vindicated last year when the city’s top prosecutor, Marilyn J. Mosby, announced charges against the officers, but legal specialists have questioned whether they were too ambitious.

Peter Moskos, a former Baltimore police officer who teaches at John Jay College of Criminal Justice in New York, said that Ms. Mosby had “overplayed her hand.”

Charges were filed too quickly, he said. adding that prosecutors should have spent more time bolstering cases against one or two officers who may have been most culpable. “Someone dying doesn’t always make it a crime,” Mr. Moskos said. “The prosecutors are trying to find social justice, but these are trials of individual cops.”

A lawyer for Officer Nero, Marc Zayon, called for the charges against the remaining officers to be dropped.

“The State’s Attorney for Baltimore City rushed to charge him, as well as the other five officers, completely disregarding the facts of the case and the applicable law,” Mr. Zayon said in a statement.

“Like Officer Nero,” Mr. Zayon added, “these officers have done nothing wrong.”

Concerned about reaction within the community, Mayor Stephanie Rawlings-Blake, in a statement, asked residents to be patient as the legal process played out, but added that the city was prepared to respond to any disturbances.

The Police Department said in a statement Monday that the internal review of Officer Nero, 30, who remains on administrative leave, will not be resolved until after the trials of the other officers involved.

The trial had shifted the focus from the injuries that killed Mr. Gray, which was a crucial point in Officer Porter’s trial, to the opening moments of his arrest. It was never going to be the highest-profile prosecution in the case related to Mr. Gray; that will be Caesar R. Goodson Jr., the driver of the police wagon in which Mr. Gray is believed to have broken his neck. But, in a city that is already the subject of a federal civil rights investigation into whether officers use excessive force and discriminatory policing, Officer Nero’s trial renewed questions about when an officer can stop a private citizen and what an officer is allowed to do.

“I would say the trial has engendered a wider conversation about how police operate in poor communities, particularly poor communities of color that raises critical issues about society,” said David Jaros, a law professor at the University of Baltimore.

Judge Williams focused his rulings on Officer Nero’s specific actions, Mr. Jaros said, rather commenting on the broad legal theory underpinning the prosecution’s case.

Paul Butler, a former federal prosecutor and a law professor at Georgetown University Law Center, called the charges an unusual — and possibly unprecedented — attempt by a prosecutor to convict a police officer for making an arrest that lacked probable cause.

The attempt may have been fueled in part by public anger over the death of Mr. Gray. Mr. Butler said said such calculations were a normal part of prosecutors’ decision making before handing down indictments. That tactic was essentially negated, he said, when Officer Nero’s defense team opted for a bench trial.

More from The Baltimore Sun:

ltimore Circuit Judge Barry Williams on Monday rejected the state’s case against Officer Edward Nero, acquitting him on all counts for his role in the arrest and death of Freddie Gray.

The judgment, which followed a five-day bench trial, is the first in the closely-watched case. Nero, 30, had faced four misdemeanor charges of second-degree assault, reckless endangerment and two counts of misconduct in office.

Prosecutors argued that Nero committed an assault by detaining Gray without justification, while the reckless endangerment charge related to Nero’s role in putting Gray into an arrest wagon without buckling a seat belt. In closing arguments Thursday, Williams had skeptically questioned prosecutors about their theory of assault, which legal experts said was unprecedented.

Williams on Monday said there were “no credible facts” to show that Nero was directly involved in Gray’s arrest, and said testimony showed Nero’s role in putting Gray in the van was minimized by the actions of others and not unreasonable given his training.

Nero leaned forward after the verdict was read and wiped his eyes. He hugged his attorneys.

Marc Zayon and Allison Levine, Nero’s attorneys, said Nero and his family “are elated that this nightmare is finally over.”

“The State’s Attorney for Baltimore City rushed to charge him, as well as the other five officers, completely disregarding the facts of the case and the applicable law,” the attorneys said in a statement. “His hope is that the State’s Attorney will re-evaluate the remaining five officers’ cases and dismiss their charges. Like Officer Nero, these officers have done nothing wrong.”

Prosecutors remain bound by a gag order and did not comment. State’s Attorney Marilyn Mosby did not attend the reading of the verdict, and a spokesperson did not respond to questions about her absence.

Gray’s twin sister, Fredericka, left the courthouse visibly upset but declined comment. Billy Murphy, the attorney for the Gray family, said prosecutors face an “enormous standard of proof” and commended Williams for “not bending to public opinion.”

Williams “stood tall and did what he believed was just” while being “very careful” to make clear findings specific to Nero case,” Murphy said.

The state’s theory for the assault charge had been described by legal observers as “novel” or even “radical.” When the constitutionality of a police stop is questioned, the typical remedy is for charges to be dropped or evidence suppressed. Officers can also be sued.

But prosecutors sought to criminalize the interaction, with Deputy Chief State’s Attorney Janice Bledsoe remarking that people were “jacked up all the time” and that officers must justify all of their actions. Williams closely questioned prosecutors on the theory in closing arguments, but made no conclusion on it in finding Nero had no involvement.

Prosecutors initially charged Nero and Officer Garrett Miller with wrongly arresting Gray for having an illegal knife, which they said was legal under state law. They later backed off that theory after defense attorneys noted the knife was banned under city code, and instead said the officers did not follow legal requirements in how they went about stopping Gray before finding the knife.

The time frame for what prosecutors said constituted an illegal touching was less than three minutes. Gray was placed in a prone position and handcuffed, which prosecutors said went too far.

Zayon said in closing arguments that countless court decisions backed the officers’ actions, saying officers may chase a suspect in a “high-crime” area and detain them while seeking to confirm or dispel their suspicions. Another officer, Lt. Brian Rice, had initially begun chasing Gray, and Miller and Nero had responded to his call for help.

Miller, who faces the same charges as Nero, was given immunity and forced to testify by prosecutors. But on the stand Miller said he alone had caught and handcuffed Gray, minimizing the involvement of Nero, who he said went to retrieve their bicycles from another area as he handled Gray. Prosecutors pointed to Nero and Miller’s use of the word “we” to describe the events as indication that both actively took part.

Williams said “Miller stated unequivocally” that he had detained Gray, and noted that Brandon Ross, one of Gray’s friends, also backed the account in his testimony. Prosecutors alleged Miller had twisted his story to help his “buddy” Nero, but Williams noted Ross had no such incentive to lie. Williams also said he believed that Miller and Nero had said “we” to describe their collective actions — but not assign joint responsibility.

Prosecutors also argued Nero could be convicted on under a theory of “accessory liability,” which Williams said would require showing Nero knew a crime was being committed and either participated or deliberately allowed it to continue. Bledsoe had argued while there was no case law to support the argument, there was also none prohibiting it.

Williams said it was “not an appropriate application of the law.”

Nero also helped place Gray back into the van, shackled but restrained. Prosecutors said Nero had a “duty” to keep Gray safe, and presented testimony about police training and policies designed to keep arrestees safe. Just three days before Gray’s arrest, a new directive went out that required police to seat belt detainees, removing their discretion.
Zayon said there was no evidence to show Nero had received the new directive, and a sergeant testified that it had not been distributed or read at daily roll calls. Other officers testified that it is the van driver’s responsibility to ensure that a detainee is secure — audits performed in 2014 to ensure compliance targeted van drivers, not arresting officers.

Rice had climbed into the van to pull Gray in, while Nero helped with his legs and did not enter the van.

Williams said the law required him to judge the “reasonableness” of Nero’s actions, and he found it was not unreasonable for Nero to defer to supervisor’s determination about whether to belt Gray.

“There is no evidence that it was part of his training, or that a reasonable officer would do the same,” Williams said.

Heading into this trial, it was clear that the effort to convict Nero would prove to be among the most difficult of the six cases that the Baltimore State’s Attorney took on when they charged these officers. As noted, Nero was not involved in the alleged “rough ride” that apparently resulted in Gray being tossed around the inside of the police van, an action that resulted in the spinal cord injuries that led to his death. Instead, Nero was one of the many officers involved in originally detaining Gray and putting Gray under arrest, an arrest that has now been determined to have been made without probable cause. That fact alone, however, has rarely if ever been the basis for a criminal charge in and of itself. Instead, as noted above, an illegal arrest generally means that any evidence obtained as a result of that arrest would not be admissible at trial and that, potentially, the officer(s) involved, along with the Department and the City, could potentially be subject to charge of having violated someone’s civil rights, as well as facing potential civil judgment related to those charges. Instead of doing that, though, the prosecution sought to turn an unlawful arrest into a crime using a legal theory that was unique to say the very least. Given this, the defense’s decision to seek a bench trial before a Judge and waive the right to a jury trial was a smart decision since the Judge was much more likely to focus as much on the law as on the facts of what happened to Gray. Additionally, Nero’s interaction with Gray was so brief, and so far removed from the events that lead to his death that holding him responsible for that death seemed from a distance to be quite a stretch indeed. For these reasons, it’s not all that surprising that Nero was acquitted and one must believe that the prosecution isn’t entirely surprised by this outcome.

So far at least, the reaction to the ruling in this case seems to be rather muted compared to the state the city was in just a year ago prior to the arrest of the six officers. A good part of the reason for that may be the fact that the Gray family has been quite vocal in saying that they don’t want to see the city to turn back into what it was a year ago, and the statement that was released immediately after today’s verdict in which the family, while disappointed, seemed to largely accept the outcome in this case and look forward to the trials yet to come of the officers deemed to be the most culpable in the death of their loved one. Additionally, it does genuinely appear as though a lot of the tensions associated with last year’s riots has diminished in the wake of the arrests and the fact that prosecutors do seem to be following through on their promise to prosecute these officers to the best of their ability within the bounds of the law. For example, there was also no real rise in social tension back in December when the trial of the first officer ended in a mistrial due to a hung jury. Hopefully this is an indication that things are improving in that area of Baltimore at least to some degree.

The next trial in the Gray case is the trial of Baltimore Police Officer Caesar Goodson Jr., the officer who drove the van that Gray was injured in. This is likely to be a trial that garners much more attention than Nero’s since Goodson was arguably one of the officers charged with an affirmative duty to ensure that Gray was safe in the rear of the van and because it was allegedly his driving behavior that led to the injuries that killed Gray. That trial is currently set to begin June 6th.

FILED UNDER: Crime, Law and the Courts, Race and Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. HarvardLaw92 says:

    an arrest that has now been determined to have been made without probable cause.

    Just curious – which court made this determination?




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  2. Ken in NJ says:

    I am Jack’s lack of surprise




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  3. Boyd says:

    …an arrest that has now been determined to have been made without probable cause.

    Wait, is that true? I haven’t read the entire decision, but I haven’t heard anything about Judge Williams saying there was no PC for Gray’s arrest. That was certainly what the Prosecution claimed initially, before they were publicly embarrassed for not realizing the knife in Gray’s pocket was illegal under Baltimore city ordinance.




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  4. SKI says:

    @Boyd: IIRC, the knife couldn’t have been the PC as they placed him in handcuffs before they found the knife.




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  5. HarvardLaw92 says:

    @SKI:

    Incorrect – they are allowed to place him in handcuffs to detain him as a product of the chase he initiated.

    Per Illinois v. Wardlow, when a person in a high crime area, (incidentally, although not required to be, known to officers as someone with a prior criminal record), flees from police officers, that constitutes reasonable suspicion. That’s all that they needed to pursue and detain him (including handcuffing him), and the search pursuant to that detention is predicated on officer safety. Once that search produced the knife, they then had probable cause to effect an arrest. There was honestly nothing flawed, under current law anyway, about that portion of the encounter from onset to arrest.




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  6. jukeboxgrad says:

    Boyd:

    the knife in Gray’s pocket was illegal under Baltimore city ordinance

    Are you sure? “Spring assisted, one hand operated knife” and “switchblade knife” are not synonyms. The Baltimore law is apparently intended to outlaw the latter. Officer Miller’s hand-written narrative seems to indicate that what Gray was carrying was the former, and that Officer Miller knew this.

    HarvardLaw92:

    Once that search produced the knife, they then had probable cause to effect an arrest.

    Just curious – which court made this determination?




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  7. HarvardLaw92 says:

    which court made this determination?

    You mean besides the Supreme Court?




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  8. HarvardLaw92 says:

    The Baltimore law is apparently intended to outlaw the latter.

    Baltimore City Code outlaws both, specifically:

    It shall be unlawful for any person to sell, carry, or possess any knife with an automatic spring or other device for opening and/or closing the blade, commonly known as a switch-blade knife.

    The short version of that is this: if a knife has any sort of spring assist mechanism which assists in opening, closing or both, of whatever design or manufacture, it’s illegal to possess it within the city limits of Baltimore.




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  9. Boyd says:

    @SKI:

    IIRC, the knife couldn’t have been the PC as they placed him in handcuffs before they found the knife.

    IANAL, nor did I sleep in a Holiday Inn Express last night, but my understanding is that you’re confusing detention (the “Terry stop”) with Gray’s arrest. The detention only requires a reasonable suspicion, whereas the arrest requires probable cause. By SCOTUS decision, Gray’s actions in the context of the environment provided the required “reasonable suspicion.” The illegal knife (yes, made illegal by Baltimore city ordinance) provided the “probable cause” to arrest him.




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  10. jukeboxgrad says:

    You mean besides the Supreme Court?

    When did the Supreme Court rule that Gray’s possession of a spring-assisted knife was probable cause to arrest him?

    Baltimore City Code outlaws both, specifically

    Miller said Gray was carrying a “spring assisted knife.” That term references a specific design. The law does not reference that design, and it does not use that term, because the spring-assisted knife was invented after the law was written. The law does not address every knife that contains a spring. It addresses knives that are “commonly known as a switch-blade knife.” Spring-assisted knives are not “commonly known as a switch-blade knife.” The law also describes the mechanism as “automatic.” A switchblade knife is “automatic.” A spring-assisted knife is not “automatic.”

    You may not understand these differences, but Officer Miller apparently did, which would explain why he refrained from using the word ‘switchblade,’ and why he also refrained from using the word “automatic.”

    if a knife has any sort of spring assist mechanism which assists in opening, closing or both, of whatever design or manufacture, it’s illegal to possess it within the city limits of Baltimore

    And which court made this determination? Are you aware of any case where someone has been successfully prosecuted for possession of a spring-assisted knife in Baltimore? Just curious.




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  11. jukeboxgrad says:

    if a knife has any sort of spring assist mechanism which assists in opening, closing or both, of whatever design or manufacture, it’s illegal to possess it within the city limits of Baltimore

    Really? Are you sure? I wonder if that would include this knife: the “Milwaukee FastBack Camo Spring Assisted Pocket Knife.” Because there are a couple of Home Depot stores located “within the city limits of Baltimore,” and this knife is currently in stock at both those stores. I could even tell you the aisle and bay number.

    So is it your claim that Home Depot is violating the law by stocking this knife, because supposedly “it’s illegal to possess it within the city limits of Baltimore?”




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  12. HarvardLaw92 says:

    Wurlitzer:

    Look, you’re not a lawyer, and you’re out of your depth on this one. I’m not going to enable you trying to play Perry Mason.

    The standard for probable cause to arrest is not actuality, which is a determination to be made in a court of law, but is instead a reasonable belief on the part of the arresting officer that illegality exists. If the officers had a reasonable belief that the knife was illegal, as they arguably did in this incident, the arrest was proper and potential false imprisonment charges go *pouf*.

    Mosby admitted as much when she dropped those charges, and you’re likely to see acquittals for every other officer whose involvement in this incident extended no further than the arrest. The only defendant who is IMO at serious risk of facing any sort of conviction is the driver of the vehicle.

    If you were a lawyer, you’d already know that and not need to have it explained to you.




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  13. jukeboxgrad says:

    The standard for probable cause to arrest is not actuality … the officers had a reasonable belief that the knife was illegal

    Consider these two statements:

    A) Spring-assisted knives are illegal in Baltimore, in “actuality.” Gray was carrying a spring-assisted knife. Since he was carrying an illegal knife, it was proper to arrest him.

    B) In “actuality,” spring-assisted knives are not illegal in Baltimore, but Officer Miller made a good-faith error when he failed to grasp the difference between Gray’s legal spring-assisted knife and an illegal switchblade, which is something different and which Gray did not possess.

    A is the story you were telling until I pointed out that you can easily find spring-assisted knives at every Home Depot in Baltimore. B is the story you’re telling now. Your disingenuous backpedaling is noted. Here’s an idea: pick one story and stick with it.

    By the way, it’s no surprise that you lack the knife literacy to grasp the difference between a legal spring-assisted knife and an illegal switchblade, but it’s not plausible that Officer Miller is so ignorant that he fails to grasp the difference, because the difference is pretty simple and obvious (link, link, link). Like I said, this would explain why he carefully refrained from describing Gray’s knife as a ‘switchblade.’ So your new narrative is just as useless as your original narrative.




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  14. Jack says:

    Jukebox, I have to agree with HarvardLaw here.

    It doesn’t matter if it was a Pen Knife, Clip Point, Drop point, Spear Point, Sheepfoot, Needle Point, straightback, fixed blade, spring assisted, or switchblade. The officer believed it was an illegal knife and therefore arrested Freddie Gray. Maybe this gets straightened out at the precinct maybe the prosecutor drops charges. But nothing about the arrest itself violated the constitution or Gray’s civil rights. The prosecutor overreached and the officer was rightly acquitted.




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  15. HarvardLaw92 says:

    Wurlitzer:

    I’m not sure what point you are trying to make here, beyond “I don’t like you and I think I’m smarter than you”, which seems to be how you regard just about anybody who disagrees with or challenges you. You’re getting twisted up in your efforts to rebut someone you dislike and missing the forest for the trees.

    The detention was legal. The search was legal. The arrest was legal. That’s the bottom line. If you feel differently, I’d suggest attending law school, passing the bar and heading down to Baltimore to offer your services. I assure you that I have no interest in your opinion.

    Meanwhile, we’re one mistrial (delivered by a 2/3rds African-American jury no less) which may or may not be reprosecuted, one acquittal delivered by an African-American judge, and one stupid grant of immunity by an overreaching prosecutor in, with probably several more acquittals ahead of us.

    Moral of the story? This prosecution has been a shitshow from the outset, initiated prematurely by a prosecutor more interested in furthering her (and her husband’s) political ambitions than she is in doing her job, and the results of that are starting to hit the fan.

    Given your astounding legal acumen, maybe you could offer her your assistance? Her number is 443-984-6000; I’m sure she’s waiting for your call 🙂




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  16. jukeboxgrad says:

    Jack:

    I have to agree with HarvardLaw here

    He told two different stories, so I hope you’ll explain which of his stories you are supporting.

    The officer believed it was an illegal knife

    Because the officer thinks that spring-assisted knives are illegal, even though they are sold in Home Depot (and probably every other major hardware store in Baltimore)? Or because the officer is so ignorant about knives that he doesn’t grasp the difference between a legal spring-assisted knife and an illegal switchblade? Both of these explanations are implausible, but I’m curious which one you have in mind.

    What’s much more plausible is this:

    … given court rulings and crime statistics that show that such knives are primarily used as tools, not weapons, a larger question emerging for legislators in states like Maryland is whether bans on certain kinds of concealed knives can too easily become convenient excuses for police officers to achieve arrests in minority neighborhoods, thus dovetailing into national concerns about police stereotyping and conduct.

    “Too often we see an officer who may or may not understand the law arrest somebody for having an illegal knife that isn’t illegal,” says Doug Ritter, founder of the Arizona-based Knife Rights group. “We too often see that kind of either blatant ignorance of the law or willful ignorance of the law, in an effort to abuse citizens’ rights to carry this tool.”




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  17. jukeboxgrad says:

    HarvardLaw92:

    The arrest was legal.

    You told two different stories to support that claim. If your first story was true, why did you discard it?




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  18. HarvardLaw92 says:

    You told two different stories to support that claim

    No, I spoke as though speaking to an audience which understands the standard for probable cause, which means that I didn’t spell out that standard in explicit detail. Once you started your nitpicking routine, it became necessary to spell it out for you.

    But, by all means, please delineate, in detail, these “two different stories”.

    Yet again, you are focusing on your goal of tripping up someone you dislike and avoiding the actual discussion, I suspect because you know that you’re either out of your depth or you’ve realized that I’m correct about the standard for probable cause and don’t want to admit it.




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  19. HarvardLaw92 says:

    What’s much more plausible is this:

    Yet again, you are missing the forest for the trees. The standard is NOT what a reasonable average person (say a biased spokesman for a knife rights group 🙄 ) might think is legal. The standard is what a reasonable police officer might consider to be illegal. Query 50 Baltimore police officers and see what they have to say about the knife in question. You won’t like what you’ll find.

    Really – if I’m going to have to keep educating you about the law, we’re going to need to work out a fee agreement.




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  20. Jack says:

    Jukebox,

    As I explained earlier, it doesn’t matter if the officer was ignorant of knives…he believed the type of knife Gray was carrying was illegal. That’s all it takes for a legal arrest. Closer to home for me, I see people arrested all the time for Open Carry. The officer believes it is illegal for a civilian to carry a firearm in a holster in the exact same manner as police for all the world to see. They are arrested (taken into custody), at the precinct they pour over the statutes and find that it is not illegal for a person to open carry a firearm and they subsequently release without charges or the charges are later dropped by the prosecutor.

    Nonetheless, nothing about the actual arrest is illegal. The officer, city, chief of police may face a civil trial, typically for poor training, but not criminally. No law was broken by a police officer making a mistake.

    As is often stated, ignorance of the law is no excuse…unless you are a police officer.




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  21. jukeboxgrad says:

    HarvardLaw92:

    please delineate, in detail, these “two different stories”

    Good thing I already did that.

    I spoke as though speaking to an audience which understands the standard for probable cause, which means that I didn’t spell out that standard in explicit detail.

    Let’s review. You said this:

    if a knife has any sort of spring assist mechanism which assists in opening, closing or both, of whatever design or manufacture, it’s illegal to possess it within the city limits of Baltimore

    What you said, unequivocally and in “explicit detail,” is that spring-assisted knives are illegal in Baltimore. Period. Even though they are sold in Baltimore at Home Depot. So are you still sticking with that story?

    The standard is what a reasonable police officer might consider to be illegal. Query 50 Baltimore police officers and see what they have to say about the knife in question.

    If most Baltimore police officers think that spring-assisted knives are illegal, why are they still being sold at Home Depot in Baltimore? Cops never visit hardware stores? Why have we never heard a story about a Home Depot store manager being handcuffed because “a reasonable police officer” noticed Home Depot’s possession of “the knife in question?” Then again, maybe “what they have to say about the knife in question” is that it’s perfectly fine at Home Depot, and only becomes a problem when in the possession of a person who looks like Freddie Gray.

    you are focusing on your goal of tripping up someone you dislike

    Thank you for that nice example of projection:

    this assclown Jukeboxgrad pissed me off the other night, and I lost it. Not proud of it, not excusing it, but it is what it is. I genuinely hate the guy.




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  22. jukeboxgrad says:

    Jack:

    ignorance of the law is no excuse…unless you are a police officer

    A spring-assisted knife is not a switchblade, and it’s not plausible that a cop would not grasp the difference. This cop carefully used one term and not the other, which suggests that he does know the difference, and that his supposed “ignorance” is willful. Why you would make excuses for that behavior is a mystery to me.




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  23. HarvardLaw92 says:

    What you said, unequivocally and in “explicit detail,” is that spring-assisted knives are illegal in Baltimore. Period. Even though they are sold in Baltimore at Home Depot. So are you still sticking with that story?

    Heroin is also sold in Baltimore. The fact that law enforcement hasn’t addressed this instance or that instance of something doesn’t change the law. Using your standard, the fact that Person A hasn’t been charged with selling heroin negates the illegality of any heroin sale.

    Technically speaking, sure, some LEO could walk into a Home Depot, buy this knife from a cashier and charge both her and the company with violating the ordinance. The fact that it may not have happened YET doesn’t mean that it CAN’T ever happen. This is aside from the fact that the particular knife you have presented may be different from the one possessed by Gray. Do you have any facts to present regarding that particular knife which establish that the knife you are presenting is like the one possessed by Gray, or are you just furiously googling?

    That said, you are still missing the forest for the trees. The only factor in play with regard to the legality of the arrest is what the arresting officer believed and whether it was reasonable, BASED ON WHAT OTHER POLICE OFFICERS WOULD THINK IN THE SAME SITUATION. So, like I suggested earlier, go query 50 Baltimore police officers and see what they think about the knife in question.

    But since you consider yourself to be an attorney, by all means, lay out your theory about why Mosby removed those charges when she presented her argument for indictment to the grand jury? Enthrall us with your legal acumen 🙂




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  24. Jack says:

    Jukebox,

    A police officer could arrest me for J walking, spitting on the sidewalk, littering, and smoking in a non-smoking area…all while I was on video doing none of those things as long as he believed I did. The arrest would still be legal

    The time for proving the officer wrong is in court, not on the street.




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  25. HarvardLaw92 says:

    @Jack:

    Hence the old saying: “you might beat the rap, but you won’t beat the ride”




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  26. HarvardLaw92 says:

    LOL, you’re as predictable as the sun rising, and you’ll take the bait every … single … time … 🙂

    I’m secretly trying to imagine how sad someone’s life has to be for them to obsess over upvotes on internet forums. Anyhoo, thanks for the amusement. My intern thanks you too – you got him out of doing actual work for a bit, but back to work 🙄




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  27. SKI says:

    @HarvardLaw92: Thanks. That case was after my last (1L) experience with Crim Law, lo those many moons ago. 🙂




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  28. SKI says:

    @HarvardLaw92: Thanks. That case was after my last (1L) experience with Crim Law, lo those many moons ago. 🙂




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  29. HarvardLaw92 says:

    @SKI:

    Likewise – I mostly haven’t thought about criminal process since I was a prosecutor. This discussion forced me to re-read Brinegar, Ybarra, Ornelas, Terry and Pringle last night.




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  30. SKI says:

    @HarvardLaw92: Ugh. Better you than me.




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  31. jukeboxgrad says:

    Jack:

    A police officer could arrest me for J walking, spitting on the sidewalk, littering, and smoking in a non-smoking area…all while I was on video doing none of those things as long as he believed I did. The arrest would still be legal

    And a police officer could shoot you in the head, “as long as he believed” that you were about to shoot him in the head, even if you were “on video” doing nothing like that. And him shooting you might still be “legal,” but it would also be wrong. And I wouldn’t expect you to make excuses for it.




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  32. jukeboxgrad says:

    HarvardLaw92:

    Technically speaking, sure, some LEO could walk into a Home Depot, buy this knife from a cashier and charge both her and the company with violating the ordinance.

    If you are back to your original claim that spring-assisted knives sold openly at Home Depot in Baltimore are actually illegal in Baltimore, then hopefully you can tell us which court made that determination. If your claim is true, then surely there have been instances of someone being successfully prosecuted for possession of a spring-assisted knife in Baltimore. A while back I asked you if you could show such a case. In your usual style, you ignored the question, because you have no answer.

    The statute does not apply, because it calls for a mechanism that is “automatic,” and a spring-assisted knife, by definition, is not “automatic.” If you claim the statute applies, then you should be able to find a court that agrees with you. Trouble is, you can’t.

    My intern thanks you too – you got him out of doing actual work for a bit

    Who is your “intern,” and how are they relevant? Why the obtuseness? Why don’t you tell us what your intern was doing?




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  33. HarvardLaw92 says:

    Why don’t you tell us what your intern was doing?

    LOL, the exact same thing you were doing. I goaded you and, as expected, you were unable to resist taking the bait (like you always do).

    You’re a piece of work … 🙄




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  34. jukeboxgrad says:

    the exact same thing you were doing

    I was posting comments. Your intern was posting comments? One more time: why did you mention your “intern?”




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  35. HarvardLaw92 says:

    LOL, (looking up) sure, sure you were. Whatever you say, Wurlitzer 🙄

    whew – smh …




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  36. jukeboxgrad says:

    You said this:

    My intern thanks you too – you got him out of doing actual work for a bit

    Maybe someday you’ll have the guts to be direct and tell us exactly what your “intern” was doing. And is it something he/she does here routinely, or do you save it for special occasions?




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  37. HarvardLaw92 says:

    Spare me. You’ll have to do better than than that lame attempt. LOL – smh …




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  38. KM says:

    @HarvardLaw92:

    The standard is NOT what a reasonable average person (say a biased spokesman for a knife rights group 🙄 ) might think is legal. The standard is what a reasonable police officer might consider to be illegal.

    I find this to be a troubling aspect of this case and the law in general. Given the nature of their jobs, one would think that a police officer would have better knowledge of weaponry and thus be a more reasonable judge on these matters. I don’t expect them to get everything right but they certainly should have a better then base working knowledge – it should not have to be sorted out at the station because proper identification should take place at the scene. The whole point of appealing to authority and expertise (which is why its their standard of reasonable, not Joe Blow’s) is that there is an authority and expertise to appeal to. If your average officer is no better then Joe Blow in terms of reasonableness and IDK-let’s-figure-it-out-downtown, then why are they singled out as the benchmark?




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  39. jukeboxgrad says:

    You’ll have to do better than than that

    No, I don’t think I have to “do better” than get you to admit that your “intern” was involved in this thread somehow. You just did that, and that’s more than enough to establish what anyone here might need to know about your credibility.




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  40. HarvardLaw92 says:

    @KM: that’s exactly the point – they are better judges of illegality than the average bystander. Mosby backed away from charging them with respect to the legality of the arrest itself precisely because they were likely right about the weapon in question.

    It tells me that she’s not that well versed on the Baltimore City Code, rushed into alleging false imprisonment based on the state statute, had the BCC ordinance pointed out to her after the fact, had her “oh shit …” moment and backpedaled on those charges at warp speed. Like I said above, this prosecution has been a shitshow from the outset. Her rush to prosecution without properly investigating the matter is now coming back to kick her in the behind.




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  41. Jack says:

    Jukebox,

    And a police officer could shoot you in the head, “as long as he believed” that you were about to shoot him in the head, even if you were “on video” doing nothing like that. And him shooting you might still be “legal,” but it would also be wrong. And I wouldn’t expect you to make excuses for it.

    There is a huge gap between arresting someone and shooting them in the head.

    Stubbing your toe is NOT severing your leg. Arresting someone for a possible crime is NOT the same as killing them. There is no moral relativity between the two.

    I am making the argument that the arrest was lawful. Period. Shooting him in the head without evidence that the officer had reasonable grounds to fear for his life, as we have seen most recently in NYC, is not defensible. I am not defending that.




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  42. HarvardLaw92 says:

    LOL, whatever you say, Wurlitzer. 🙄




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  43. jukeboxgrad says:

    Jack:

    There is a huge gap between arresting someone and shooting them in the head.

    This is what’s common in the two situations: something can be both legal and wrong. One should not defend behavior that is both legal and wrong.

    I am not defending that.

    Your position in this thread is to defend behavior that is wrong, on the basis that it is (supposedly) legal.




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  44. HarvardLaw92 says:

    And here we go – cue up the moral outrage tirade.

    Tedious. Very tedious …




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  45. Jack says:

    Jukebox,

    Your position in this thread is to defend behavior that is wrong, on the basis that it is (supposedly) legal.

    No. I. Am. Not.

    I am arguing that the action of the officer, specifically Officer Nero, specifically in this case, are lawful. Period. There was no illegal behavior, thus a not guilty verdict.

    I, of all people, have no problem calling out bad and illegal behavior by cops. Officer Nero’s behavior was neither.




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  46. jukeboxgrad says:

    Officer Nero’s behavior was neither.

    I didn’t say anything about Nero. I was discussing Garrett Miller, and you chimed in to defend him, even though what he did is wrong. I explained why, in detail, and nowhere have you addressed the details of what I said about him.




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  47. Boyd says:

    As far as I know, there has been no finding as to the legality of the knife found in Freddie Gray’s possession. We do know that after defense attorneys stated that the knife was illegal under Baltimore city ordinance, the prosecution dropped the charges of false arrest, so there’s some evidence (but not proof) that the State’s Attorney believes the knife was illegal.




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  48. HarvardLaw92 says:

    @Boyd:

    Given that Gray is now dead, and therefore can’t be charged, and Mosby has backed away from false imprisonment charges predicated on the legality of the knife not being probable cause to arrest at light speed, there likely will be no determination about the legality of the knife.




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  49. Jack says:

    Jukebox,

    This entire discussion is about the fact that Nero was found, rightly so, not guilty. The arrest was legal. That’s why the judge found Nero not guilty. If the arrest was not illegal for Nero, then so too will Miller arrest of Gray by not illegal.

    The fact the knife was “spring assisted” does not negate the arrest nor make the arrest illegal.

    Gray was charged with violating a Baltimore ordinance that applies to “any knife with an automatic spring or other device for opening and/or closing the blade, commonly known as a switch-blade knife.”

    According to The Baltimore Sun, the police task force that investigated Gray’s death concluded the knife was covered by the city’s ban.

    I own spring assisted knives. Performance wise, there is very little (if any) difference in the opening speed of a switchblade and a spring assisted knife. I can easily understand how a police officer could confuse the two if they don’t use them. The fact Miller properly described the knife in reports/testimony is neither here nor there. It still does not make the arrest illegal.




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  50. jukeboxgrad says:

    Boyd:

    the prosecution dropped the charges of false arrest, so there’s some evidence (but not proof) that the State’s Attorney believes the knife was illegal

    I agree with you that this is one way to interpret the information we have, but it’s not the only way, or necessarily the best way. Here are some other possible interpretations (to explain why “the prosecution dropped the charges of false arrest”), and it’s possible that more than one applies:

    – Mosby is a lousy lawyer.
    – Mosby doesn’t understand how knives work.
    – Mosby thinks the knife is legal, but has decided that her limited resources are best used fighting other battles.
    – Mosby thinks the knife is legal, but is concerned about opening a big can of worms. For example, suppose there is a long history of Baltimore cops misusing the ordinance as Miller did, and suppose Mosby’s record includes instances of her going along with this.

    The plain language of the ordinance is enough to indicate that it does not apply to the spring-assisted knife carried by Gray. Our speculation about Mosby’s beliefs or motivations is secondary to that.




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  51. jukeboxgrad says:

    HarvardLaw92:

    there likely will be no determination about the legality of the knife

    I guess this is your way of admitting that you will never present an instance of someone being successfully prosecuted for possession of a spring-assisted knife in Baltimore. Such a case would indeed amount to a “determination about the legality of the knife.”




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  52. HarvardLaw92 says:

    @Jack:

    If the arrest was not illegal for Nero, then so too will Miller arrest of Gray by not illegal.

    According to the Sun. the jury in Porter’s trial was one vote away from acquittal on all charges. It deadlocked over one juror who refused to budge.

    That having been said, Nero’s trial is virtually a signpost to the other officers to forgo their right to a trial by jury and accept a bench trial instead. The same judge who acquitted Nero will be presiding over all of the remaining cases as well.




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  53. jukeboxgrad says:

    Jack:

    I own spring assisted knives. Performance wise, there is very little (if any) difference in the opening speed of a switchblade and a spring assisted knife.

    The ordinance says nothing about “opening speed.” It refers explicitly to switchblades, and a spring-assisted knife is not a switchblade.

    I can easily understand how a police officer could confuse the two if they don’t use them.

    The fact that Miller wrote “spring assisted” and refrained from writing “switchblade” tends to indicate that he is well aware of the difference. I think it’s reasonable to assume that any cop, and especially an urban cop, would be well aware of the difference. Being so ignorant that you don’t grasp the difference between the two is roughly the same as being so ignorant that you don’t grasp the difference (regarding firearms) between automatic and semi-automatic. You should not trust a cop who pretends to not understand the difference between automatic and semi-automatic, and you should also not trust a cop who pretends to not understand the difference between a spring-assisted knife and a switchblade knife.

    According to The Baltimore Sun, the police task force that investigated Gray’s death concluded the knife was covered by the city’s ban.

    I am shocked that a police unit would make a statement defending other police.

    The fact Miller properly described the knife in reports/testimony is neither here nor there. It still does not make the arrest illegal.

    For a moment let’s put aside ‘legal’ and ‘illegal’ and talk about right and wrong. Does it strike you as right that Freddie Gray is arrested for carrying a spring-assisted knife, while Home Depot in Baltimore openly sells spring-assisted knives and Baltimore law enforcement makes no effort (as far as we know) to stop that practice? Can you explain to the Freddie Grays of the world why they should consider this acceptable?




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  54. HarvardLaw92 says:

    I guess this is your way of admitting that you will never present an instance of someone being successfully prosecuted for possession of a spring-assisted knife in Baltimore. Such a case would indeed amount to a “determination about the legality of the knife.”

    No, it’s my way of saying that I don’t care enough about your opinion or your emotional garment rending to spend any time searching through LexisNexis for any such cases. The fact that Mosby wasted no time in backing away from pursuing any false imprisonment charges predicated on the legality of the knife tells me all that I need to know about it. If she was afraid of going down that road, she had a reason to be afraid.




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  55. SKI says:

    @HarvardLaw92:My understanding is that cops are one of the few defendants who typically do better in bench trials in general.

    As for the finding that there was good cause for the arrest (or at least not sufficient irregularity to rise to criminal charges), while that is likely to be a non-issue going forward, the key issues, based on the Judge’s findings, will be whether the particular officer-defendant acted reasonably in not securing Gray.

    My sense is that the only one who faces real problems is the driver who (a) was responsible under guidelines for ensuring prisoners were secured and (b) will have to deal with the circuitous route and “rough ride” allegations.




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  56. SKI says:

    @jukeboxgrad:
    You would think at some poinmt you would stop digging…

    The ordinance says nothing about “opening speed.” It refers explicitly to switchblades, and a spring-assisted knife is not a switchblade.

    Actually, the ordinance speaks explicitly about sping-assisted knives:

    It shall be unlawful for any person to sell, carry, or possess any knife with an automatic spring or other device for opening and/or closing the blade, commonly known as a switch-blade knife

    the parenthetical at the end does NOT serve to eliminate knives with springs that aren’t called switchblades from its ambit.

    @jukeboxgrad:

    For a moment let’s put aside ‘legal’ and ‘illegal’ and talk about right and wrong.

    That is a separate discussion. Not everything “wrong” is a crime and not all things that are “right” are legal.

    Our criminal justice system isn’t fair. It still is the one we have and when we talk about the application of law inside a courtroom, that is the world we have to deal with.




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  57. Jack says:

    Jukebox,

    For a moment let’s put aside ‘legal’ and ‘illegal’ and talk about right and wrong. Does it strike you as right that Freddie Gray is arrested for carrying a spring-assisted knife, while Home Depot in Baltimore openly sells spring-assisted knives and Baltimore law enforcement makes no effort (as far as we know) to stop that practice? Can you explain to the Freddie Grays of the world why they should consider this acceptable?

    I would suggest, just as I have, that people in Baltimore refrain from carrying spring assisted knives due to the ambiguity in the law and strictly carry folding knives.

    Also, I believe the Baltimore ordinance revolves around possession, therefore Home Depot can sell all the spring assisted knives they want and not be breaking the law. It’s similar to tobacco laws in most states. The laws typically outlaw sales to minors, therefore, possession of tobacco products by minors is not illegal.




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  58. jukeboxgrad says:

    HarvardLaw92:

    I don’t care enough about your opinion or your emotional garment rending to spend any time searching through LexisNexis for any such cases

    So you have plenty of time to post 21 comments (so far) in this thread, but no time to find evidence indicating that your claims are something other than pure wind. Thanks for clearing that up.




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  59. jukeboxgrad says:

    SKI:

    the parenthetical at the end does NOT serve to eliminate knives with springs that aren’t called switchblades from its ambit

    Except that it does, because a spring-assisted knife is not “commonly known as a switch-blade knife.” If the ordinance intended to outlaw all “knives with springs,” then “the parenthetical at the end” (“commonly known as a switch-blade knife”) is surplusage. All switchblades have springs, but not all knives with springs are switchblades.

    Aside from conveniently ignoring “the parenthetical at the end,” you are also conveniently ignoring the word “automatic.” A switchblade is automatic. A spring-assisted knife is not.




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  60. jukeboxgrad says:

    Jack:

    I would suggest, just as I have, that people in Baltimore refrain from carrying spring assisted knives due to the ambiguity in the law and strictly carry folding knives.

    That is not an answer to the question I asked you.

    I believe the Baltimore ordinance revolves around possession, therefore Home Depot can sell all the spring assisted knives they want and not be breaking the law.

    Wrong. The first sentence in the ordinance begins as follows:

    It shall be unlawful for any person to sell




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  61. HarvardLaw92 says:

    @SKI:

    the key issues, based on the Judge’s findings, will be whether the particular officer-defendant acted reasonably in not securing Gray.

    I could be wrong here, but to my knowledge the officer who was alleged to have borne the primary culpability for failing to secure Gray was Nero. By virtue of this ruling, that question has pretty much been answered.

    My sense is that the only one who faces real problems is the driver who (a) was responsible under guidelines for ensuring prisoners were secured and (b) will have to deal with the circuitous route and “rough ride” allegations.

    I agree. I noted above that, IMO, the only officer facing any real danger of conviction is Goodson (the driver). Between the traditional deference to law enforcement within the scope of the detain / arrest function and the, to put it bluntly, incompetent manner in which this SA has approached this prosecution, I’m fairly confident that we’ll likely see 5 acquittals and a conviction on some aspect of the charges for Goodson. I think that 2D-DHM is a serious stretch though.




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  62. HarvardLaw92 says:

    So you have plenty of time to post 21 comments (so far) in this thread, but no time to find evidence indicating that your claims are something other than pure wind. Thanks for clearing that up.

    Yet again, you invent your own take on things, armchair.

    I have more than enough time. What I don’t have that’s required to interact with you is INTEREST. I’m not interested in wasting my time enabling even more of your production number antics.

    Or, to put it in terms that you can understand – you’re simply not worth my time 🙂




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  63. HarvardLaw92 says:

    That is a separate discussion. Not everything “wrong” is a crime and not all things that are “right” are legal.

    Indeed, and I’d proffer that right & wrong is a question for rabbis & philosophers. Courts rightly concern themselves with the application & interpretation of the law.




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  64. the Q says:

    …….“I don’t like you and I think I’m smarter than you”, boy I wish I had a dime for everyone who has thought this about the pedantic asshat Harvard 92. I’d have Trump money to be sure.

    And then this totally pretentious line….. “This discussion forced me to re-read Brinegar, Ybarra, Ornelas, Terry and Pringle last night”….yeah, right after the last “tug” with the live “model” on Xhamster no doubt.




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  65. HarvaardLaw92 says:

    @the Q:

    Yay, the aged raging Hippie has returned!

    How’s that levitating the Pentagon thing coming? 🙂

    (you can’t offend me, old man. Good effort though, points for trying anyway)




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  66. humanoid.panda says:

    @HarvardLaw92:

    That said, you are still missing the forest for the trees. The only factor in play with regard to the legality of the arrest is what the arresting officer believed and whether it was reasonable, BASED ON WHAT OTHER POLICE OFFICERS WOULD THINK IN THE SAME SITUATION. So, like I suggested earlier, go query 50 Baltimore police officers and see what they think about the knife in question.

    As a matter of law, you are very likely right. But surely, you do see the danger to civil liberties that this way of reading the law represents right? I’d betcha I could find a whole plethora of things that 50 random officers think should be legal and aren’t, and vice versa..




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  67. HarvardLaw92 says:

    @humanoid.panda:

    From the standpoint of civil liberties, sure, it could be problematic, but the law is clear on this issue. Lower courts don’t get to make it up as they go along and pretend that Supreme Court rulings don’t exist.

    Consider, however, that the alternative is to impose a beyond a reasonable doubt standard on arrests, which would hamstring the police entirely and make it more or less impossible for them to do their jobs. It’s a balancing act that that court wrestled with in Brinegar – to require more than probable cause to effect an arrest would neuter the police, while requiring less than probable cause would impact civil liberties too much. Given the need for a functioning police system, this is the compromise that we have in place. The arrestee certainly retains the ability to challenge the reasonableness of the arrest in court, and indeed the majority of defense lawyers will always open with a blizzard of challenges to the legitimacy of an arrest, seeking to exclude evidence obtained and as a result undermine the prosecution’s case.




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  68. wr says:

    @HarvardLaw92: “Hence the old saying: “you might beat the rap, but you won’t beat the ride””

    Apparently in Baltimore the cops are so concerned you might beat the rap they work to make sure you don’t survive the ride.




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  69. Gustopher says:

    Prosecutors argued that Nero committed an assault by detaining Gray without justification, while the reckless endangerment charge related to Nero’s role in putting Gray into an arrest wagon without buckling a seat belt.

    I am willing to give Officer Nero the benefit of the doubt on the arrest — we need to give some deference to the police when they are acting in good faith, and there is nothing to suggest he wasn’t acting in good faith, whether the arrest itself turned out to be good or bad based on technicalities over the exact nature of the knife.

    The reckless endangerment seems more problematic, but that comes down to what the department’s policies were, whether they were ever enforced, etc. Unless there was evidence presented that the officer violated standard practice by not securing Gray, or that he knew Gray would be taken for a rough ride, it would be hard to convict him of anything.

    If the standard practice does not match the policy, we have a systemic training issue, and higher ups might be liable, rather than Nero (and then, it would be a very hard case to prove, but would center on negligence). And if Nero knew Gray was going to be bounced around the back of the van, then he is an accessory to assault — but we have heard no evidence on that.




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  70. SKI says:

    @Gustopher: Pretty much.

    If the standard practice does not match the policy, we have a systemic training issue

    They had actually issued new guidance on mandatory seat belts/restraints 3 days before Gray’s arrest but they hadn’t trained on them yet.

    Under the older guidance, the driver and supervisors were the ones responsible for making sure the prisoner was restrained – which is why the Judge acquitted Nero on that charge, finding it was reasonable for him to rely on his supervisor (who was in the van).




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  71. Boyd says:

    As it turns out, this discussion on the legality of the knife is moot. The word “knife” appears nowhere in the judge’s published decision. Nor does he make any finding regarding reasonable suspicion for the detention or probable cause for the arrest, since he determined that Officer Nero didn’t participate in either of those actions.

    We’ll just have to wait for Officer Miller’s trial, presumably.




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