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Confirmed – Freddie Gray’s Knife WAS Illegal

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by Andrew Branca, LEGAL INSURRECTION

Last Friday, while Prosecutor Mosby was announcing her poorly supported tsunami of charges against the six police officers involved in arresting and transporting the ill-fated Freddie Gray, Mosby also remarked that Gray’s knife–claimed by police to be the probable cause for his arrest–was in fact lawful under Maryland law.

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.

This rather perfunctory statement certainly raised my eyebrows, for several reasons.

Whether Knife Was Actually Unlawful Is Irrelevant to Probable Cause

First, whether the knife was actually lawful under Maryland law is largely irrelevant for purposes of probable cause.

Probable cause is based on whether a reasonable police officer under the circumstances would have genuinely believed the knife to have been unlawful.  If so, the fact that the knife might later be determined to be lawful would certainly be cause to discontinue efforts to prosecute, but it wouldn’t retroactively make the officer’s conduct in making the initial arrest unlawful.

When making an assessment of probable cause for an arrest, the officer is not tasked with making an absolute determination of whether the conduct in question is unlawful.  After all, that can ultimately only be done by a jury, necessarily a decision that occurs many steps downstream from the street arrest.

Rather, the arresting officer is merely tasked with determining whether probable cause exists that the conduct in question is unlawful. Note the word of the use probable.  This allows for the possibility that the cause is not actual. Merely probable.

Certainly, one can imagine situations in which a given knife falls so far from the legal definition of unlawful types that no reasonable officer could have believed it to be within that unlawful category.  If so, a mistaken belief that the knife was unlawful would not be reasonable, and probable cause would be lacking, and the arrest would be unlawful.

Worse, one can imagine an arrest involving malice, where an officer knew full well that the knife in question did not fall within the unlawful category, and decided to fraudulently claim probable cause to effect the arrest.  Obviously such would be an unlawful arrest.

Once can also imagine, however, situations in which a given knife could well reasonably appear to fall within the legal definition of unlawful types.  As a result, a reasonable officer might reasonably, if mistakenly, believe it provided probable cause for an arrest.  In this scenario the arrest, as an act of the officer, is lawful, even if later the underlying facts of the arrest are found not to constitute a crime (e.g., closer, better-informed, off-the-street inspection of the knife discloses it is, in fact, not unlawful).

In Gray’s instance, it is not disputed that possession of a “switchblade” knife is unlawful anywhere in Maryland.  It has been widely reported (and now confirmed, as discussed below) that Gray’s knife was of a different mechanism, known as a “spring-assisted knife.”

Both of these types of mechanisms have specific technical definitions that allow the well-informed examiner to differentiate between the two.

It is also true, however, that they appear sufficiently similar in operation that someone lacking specialized knowledge could easily and reasonably believe a “spring-assisted knife” to fall within the “switchblade” category.  The video below illustrates this similarity of operation (the first knife is the assisted-opening, the second the switchblade):

If the arresting officer(s) in Gray’s case reasonably believed that the spring-assisted knife in Gray’s possession fell into the unlawful category, then the legal requirement for probable cause in making their arrest has been met, regardless of whether upon later inspection and assessment the knife is determined to be unlawful.

Thus Mosby’s claim that Gray’s knife was ultimately determined to be lawful is largely irrelevant to the issue of whether the officers had probable cause to arrest Gray.

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