Mimesis Law
2 July 2020

The Senseless Death of Freddie Gray

May 2, 2015 (Mimesis Law) — The death of Freddie Gray for a partially severed spine and crushed larynx while in the custody of police has had grave consequences for Baltimore. And now that six police officers have been indicted for his murder, together with false imprisonment, the question of whether any of this should have happened cannot be ignored.

There is what I consider to be a profound point to be made about criminal law.  Support no criminal law for which you are not prepared to kill.  No matter how trivial the offense, or insignificant the harm, there is always a possibility that an interaction between police and a citizen will result in the citizen’s death.  Ask first, is this worthy of execution?

In the case of Freddie Gray, the initiation of contact was remarkably ordinary.  He had a rap sheet, which may or may not have been known to the cops.  He looked at them, and they noticed.  He went the other way, and they took chase.

To the uninitiated, a person avoiding the police seems quite suspicious.  Under Terry v. Ohio, a cop need possess only a reasonable suspicion to exercise his authority to conduct a stop, to make further inquiry to decide whether there is cause for more intrusive investigation or action.  But in the ‘hood, avoiding police interactions has a more benign justification. It’s called survival.

Having a rap sheet, assuming the officers were aware of it at all, does not give rise to a reasonable suspicion.  If it did, a guy with a couple of arrests would be fair game to every cop, every second of every day.  Nor does being in a “high crime neighborhood,” which is a euphemism for poor neighborhoods everywhere. There is no official definition, by the way, so it’s whatever a cop says it is. And it’s always the location where he needs it to be.

So the officers’ interest in Freddie Gray was based on the time-honored tradition of the streets of Baltimore that you don’t look at a cop longer than two seconds.  It’s an unwritten rule, but a rule nonetheless.  Freddie Gray broke that rule, and so he split.

Had he fled the police, it would, in Chief Justice Rehnquist’s words, have been “the consummate act of evasion,” giving rise to reasonable suspicion.  While this isn’t one the more doctrinally sound cases, since the very gist of a non-arrest is the freedom to leave, that didn’t seem to stop the Court. And so, the police would have had the authority to stop and inquire.

But when they finally caught up with him, they didn’t ask why he was being so mean to them by making them sweat. Instead, he was frisked. Now police have authority to conduct a limited pat down to ascertain whether a person is armed. This is for their own safety, despite the absence of anything in the Constitution suggesting that their safety trumps the Fourth Amendment. Even so, the authority doesn’t kick in without there being some articulable basis upon which the officer believes a person to be armed. In other words, they don’t get one free grope on everybody.

But that’s a fairly nuanced aspect of law, which, like all such nuanced aspects of law, are routinely ignored on the street and glossed over by excuses and fantasy should it be called into question later.  At the moment, no cop on the street is going to take any risk whatsoever that the guy stopped is armed.

And that’s when they found a knife on Freddie Gray.  It’s been called an illegal knife, based on a conflated grasp of what constitutes a switch blade. Switch blades, defined as spring-loaded knives that open with the push of a button.  They’ve been illegal since Bernstein first composed West Side Story, as the weapon of choice for 50’s street gangs.  Next to zip guns, they were very scary, even though they are otherwise just knives, no more or less dangerous than the ones in your kitchen.

But the knife found on Freddie Gray was no switchblade.  It was a spring-assisted knife, which differs from a switchblade in that it requires human force, by pushing on a part of the blade that juts out from below, to open the blade.  No, it’s not a huge distinction, but enough so that I saw a whole display of them in Williams-Sonoma the other day, and they’re ubiquitous on Amazon.

What they are not is illegal.  And, frankly, given the popularity of this style of knife, it seems remarkable that the police weren’t quite clear that what Freddie Gray possessed was a perfectly lawful spring-assisted knife, and not an illegal switchblade.  Even if you aren’t big into knives or particularly familiar with such bladed instruments, most cops are. Even more so as they come across them with such great frequency.

So while the police had no reasonable suspicion to stop Freddie Gray, nor basis to frisk him, they similarly had no probable cause to arrest him for possession of a knife that could be bought at a high-end cooking store.  As it turns out, Freddie Gray was just a guy trying to avoid trouble, committing no crime, and exercising his constitutional right to be left alone.

And ended up dead for it.  Not only was there grave consequences for Baltimore and six cops, but for Freddie Gray. And he’s the only one who didn’t do anything wrong.

Main image via Flickr/James Case.

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