Baltimore, Billy Murphy, BPD, David Jaros, Department of Justice, Freddie Gray, Loretta Lynch, Marilyn Mosby, Michael Davey, rule of law, Sherriyn Ifill, Social justice
Freddie Gray was arrested in Baltimore on 12 April, 2015, and died a few days later. More than two years later, the Federal Department of Justice has finally decided there will be no charges against the officers arrested, and charged by Baltimore Prosecutor Marilyn Mosby. The process no doubt took so long because it was begun under the corrupt Loretta Lynch during the even more corrupt Obama Administration. Under a competent DOJ, and an Attorney General dedicated to upholding the rule of law, it’s likely no investigation would have been done. The Baltimore Sun reports:
The U.S. Department of Justice will not bring charges against Baltimore police officers in connection with the death of 25-year-old Freddie Gray from injuries sustained in police custody in 2015, the agency confirmed Tuesday. [skip]
The decision means no officers will be held criminally responsible for Gray’s death. The state previously filed local criminal charges against six officers in the case, but failed to secure a single conviction.
Former U.S. Attorney General Loretta Lynch announced that the Justice Department was conducting a criminal civil rights investigation into Gray’s death on April 27, 2015, the same day as Gray’s funeral and the eruption of rioting, looting and arson in Baltimore.
This was done in the social justice fervor of the times, when Marilyn Mosby and Baltimore and Maryland politicians were promising “justice for Freddie Gray.” Under the ethic of social justice, the only possible justice would have meant the conviction and most severe punishment possible for every accused officer.
William H. ‘Billy’ Murphy, the Gray family’s attorney, declined to comment. Baltimore police spokesman T.J. Smith also declined to comment.
Murphy, and the family, have already made their millions, thrown at them long before the outcome—complete vindication—for every charged officer was known. Murphy is obviously smart enough to realize discretion is the better part of valor.
Michael Davey, an attorney for the local police union, said he had not received notice of an official decision from the Justice Department as of Tuesday afternoon, but “we’re obviously pleased” no charges will be filed.
“We only wish that the Baltimore City state’s attorney’s office would have done just as thorough an investigation before they brought their state charges,” Davey said. ‘If they would have done that, we believe they would have come to the same conclusion as the Department of Justice.
As regular readers know, Davey is certainly correct. There was never probable cause to arrest the officers, and even a first year law student, understanding that, should have been able to tell there was no possibility of proof beyond a reasonable doubt before a judge dedicated to the rule of law, as Judge Barry Williams turned out to be. That he is black only tends to affirm the integrity of his decisions. A professor I occasionally quoted agrees, but had to add a bit of political flavoring:
David Jaros, an associate professor of criminal law at the University of Baltimore, said Trump never inspired confidence that charges would be filed, but ‘even under the Obama administration, it was very unlikely that these cases would be pursued criminally.’
‘This was a case that was very hard to prove, that was riddled with reasonable doubt,’ Jaros said.
Quite so. The usual suspects, however, just can’t let it go:
On Tuesday, Baltimore’s delegation to Congress — Sens. Ben Cardin and Chris Van Hollen and Reps. Elijah Cummings, John Sarbanes and Dutch Ruppersberger, all Democrats — issued a joint statement saying they were ‘disappointed by reports that DOJ will not seek justice for Freddie Gray, but we are not surprised.’
They accused the Trump administration of attempting to block police reform in Baltimore and called on it to support local reform efforts. The Justice Department declined to respond to their comments.
Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, said in a statement Tuesday that Baltimore ‘desperately needs’ systemic policing reforms that include mechanisms for holding officers accountable.
‘We know that spines do not break without cause, and the DOJ and BPD’s credibility to make change a reality in Baltimore hinges not just on their ability to institute much needed reforms to police training, policies, and practices, but also on their success in bringing to justice officers who abuse their power and take the lives of innocent residents,’ Ifill said. ‘The onus is now on the BPD to hold these officers accountable at their disciplinary trials this fall and winter. Baltimore will be watching.
The search for social justice, regardless of the facts or the law, knows no end. The DOJ’s decision does, in fact, represent justice under the law, but not under social justice, which seeks only the blood of those it disfavors. Freddie Gray’s neck broke because he, under the influence of drugs, was foolish enough to stand up in a moving van. Whether he was trying a crash for cash scam, as he had a history of doing, or was merely stupid remains unclear, but his death was an accident, as the coroner actually admitted until convinced to commit perjury by Mosby. “police accountability” in this situation requires the recognition that only one person was responsible for Freddie Gray’s death: Freddie Gray. Fortunately, The DOJ had an informed opinion. Excerpts from their report:
The Department examined the facts in this case under all relevant criminal statutes. The principal criminal statute applicable to these facts is Title 18, United States Code, Section 242, Deprivation of Rights Under Color of Law. In order to proceed with a prosecution under Section 242, prosecutors must first establish beyond a reasonable doubt that a law enforcement officer deprived an individual of a constitutional right. [skip]
Additionally, to prove that any police encounter violated section 242, the government must also prove beyond a reasonable doubt that the officer acted willfully. This high legal standard – one of the highest standards of intent imposed by law – requires proof that the officer acted with the specific intent to do something the law forbids. It is not enough to show that the officer made a mistake, acted negligently, acted by accident, or even exercised bad judgment.
It is such legal standards, a foundation of the rule of law, that enrage social justice activist/organizers. These standards do not allow some animals to be more equal than others, and require actual evidence rather than the passion of the mob. What’s the fun in that?
With respect to a false arrest charge, the Department determined that it could not disprove the officers’ statements regarding the events leading to the arrest. According to the officers, Gray was detained after he made eye contact with Lieutenant Rice and then immediately ran from him. At the time, the bicycle officers were conducting proactive enforcement in an area known for drug sales. Once the officers stopped Gray, they admitted to securing him with handcuffs and then performing a cursory search for weapons, which yielded an illegal knife. …a false arrest under the Fourth Amendment was not supported by the facts. Gray’s unprovoked flight from Lieutenant Rice, which occurred in an area known for drug sales, gave the officers reasonable suspicion to briefly detain him. Miller’s discovery of a knife that appeared to be an illegal switchblade supplied probable cause to arrest Gray.
It is no coincidence the DOJ’s report supports every contention I made in this case regarding reasonable suspicion and probable cause. These are not arguable issues liable for many conflicting, equally plausible opinions, but long settled, clear law. The officers acted precisely as any rational citizen would want them to act in suppressing crime.
The legal standard for such a prosecution would require the government to prove beyond a reasonable doubt that an officer’s use of force during Gray’s arrest was objectively unreasonable based on all of the surrounding circumstances, and thereby violated the Fourth Amendment. The law requires that the reasonableness of an officer’s use of force on an arrestee be judged from the perspective of a reasonable officer on the scene, rather than with the added perspective of hindsight.
This is exactly the correct standard to be applied to police use of force.
The evidence in this matter overwhelmingly contradicted reports from some civilian witnesses that Gray was either tased or beaten by the officers. The doctor who performed Gray’s autopsy and testified for the state concluded that there was no medical evidence indicating that Gray’s injuries were caused by excessive force during the arrest, and no medical evidence showing that Gray had been tased. In fact, all medical professionals who testified at the state trials agreed that Gray was injured sometime after Stop 2 while he was being transported in the wagon. BPD investigators analyzed all of the subjects’ Tasers after Gray’s arrest and confirmed that none of the subjects had deployed their Tasers that day. One witness who claimed to have seen Gray tased later recanted that assertion at trial. Additionally, at least two civilian witnesses reported that they did not see any officer strike, punch, or kick Gray, and at least one such witness denied that officers placed Gray into the wagon forcefully. None of the video evidence established that Gray was struck, tased, or otherwise subjected to unreasonable force.
There was no credible evidence in this case of excessive force. All the video evidence established that the officers used only the minimum, entirely reasonable force necessary to arrest Gray, to carry him, as he feigned injury, to the transport van, and to place him in it.
The Justice Department also considered whether the evidence established that Officer Goodson intentionally gave Freddie Gray a “rough ride” in the back of the wagon, thereby using excessive force in violation of the Due Process Clause. Pursuing this charge would require the government to prove that Officer Goodson gave Gray a ride that objectively harmed him, and that Goodson did so “maliciously and sadistically’ in order to cause Gray harm. The evidence could not bear this burden.
In fact, the evidence could not bear any burden on this issue. The famous “wide turn,” so often remarked upon was nothing more than Officer Goodson giving a vehicle parked near the corer a wide berth, and all evidence, video and otherwise, proved only that Goodson drove prudently and professionally.
In order to determine whether the officers’ failure to seatbelt Gray constituted deliberate indifference to a serious risk of harm to Gray in violation of the Fourteenth Amendment, federal investigators paid particular attention to the law enforcement witness statements, training records, and BPD policies. Under the law, it would not be enough to show that an officer merely had an awareness of some risk of serious harm or that an officer should have had such an awareness. The law would require the government to prove that the officers actually knew that transporting Gray without a seatbelt created a substantial risk of serious harm, and that they actually knew that their actions were inappropriate. The officers made no admissions that would allow us to prove that any of the officers were actually aware that transporting Gray without a seatbelt in back of a police wagon would create a substantial risk of serious harm. The Department also cannot prove that the officers received training regarding substantial risks or harms associated with the transportation of un-seat-belted detainees. The Department reviewed longstanding BPD polices for seat-belting that were in effect until just days before Gray’s arrest, and those polices afforded officers the discretion to refrain from seat-belting detainees if the officers believed there were security risks involved [emphasis mine]. Given the angry crowds at Stops 1 and 2, and in light of Gray’s combative behavior once inside the wagon, the Department cannot prove that the officers believed that their failure to seatbelt Gray was an inappropriate balancing of the safety risks involved.
Again, the Sessions/Trump DOJ adhered to the law rather than what they might have wanted the law to be.
The Justice Department also considered whether the officers were deliberately indifferent to Gray’s serious need for medical care. [skip] Regardless of whether Sergeant White or Officer Porter acted negligently by not calling a medic prior to Stop 6, it would be impossible to prove that either deliberately ignored Gray’s needs.
Trial testimony of medical experts convinced Judge Williams that doctors could not agree when Gray was injured, nor could they agree that his injuries would be outwardly apparent or when. In fact, Judge Williams held that Gray’s injuries were internal and the officers could not be expected to recognize or diagnose such injuries. As soon as Gray demonstrated outward signs of injury, at the 6th stop, the officers immediately acted to get him emergency medical help.
…the evidence gathered during this investigation is insufficient to prove beyond a reasonable doubt that the officers violated Gray’s Fourth Amendment rights against false arrest and unreasonable force, or his Fourteenth Amendment right to be free from excessive force and deliberate indifference.
This is, of course, because Gray was not falsely arrested. A reasonable prosecutor might have declined to prosecute Gray for the knife, although Mosby’s office routinely prosecuted that offense and continue to do it, but there was never any doubt about the utter lack of evidence to support these contentions.
In analyzing a potential charge under section 242, the Department also considered whether the evidence was sufficient to prove the statutory element of willfulness. To establish that the officers acted willfully, the government would be required both to disprove the officers’ account of their interaction with Gray and to affirmatively establish that the officers instead acted, or failed to act, with the specific intent to violate Gray’s rights. At a minimum, this would require proof that the officers knew that they were treating Gray in a wrongful manner, yet chose to do so anyway. For many of the same reasons described above, the evidence is insufficient to prove willfulness and cannot bear this heavy burden.
While the DOJ notes this is a heavy burden, they could easily have used “reasonable,” or “necessary” burden. Not all law is well written or intentioned, but the law here is. Otherwise, police officers could be sued and prosecuted for the most frivolous reasons, and in effect, denied due process.
This chapter in the Freddie Gray case is now closed. Remaining is the civil suit filed against Marilyn Mosby by the Officers, and the upcoming departmental trials. Fellow police officers, or more specifically, the politically corrupt management of the Baltimore Police Department, will likely exact the social justice pound of flesh. It may be at least another year before the wrongfully accused officers may enjoy anything approaching peace, and the damage wrought by Marilyn Mosby and her fellow progressive politicians continues to be manifested in the bloody streets of Baltimore.
James W Crawford said:
Common sense suggests that arrestees should be seat belted into a transport van. Human factors research confirms that humans are far less capable of enduring transverse accellerations than in any other axis. The seat layout of police transport vans maximizes the risk of injury from abrubt braking or collisions.
However; police experience confirms that securing even handcuffed criminals exposes officers to unacceptable risks of injury from physical assault or infection from exposure to noxious bodily fluids.
In the end the Freddie Gray case will be a learning experience. I predict that vendors will develop passive restraint systems that will enable officers to secure arrestees while minimizing risk of injury. The restraint systems on carnival rides suggest possible solutions.
Common sense says you should be seat belted in, but a lot of officers don’t even seat belt themselves in. The van conversions have the carnival ride bars across the lap for the cage, but its an option that cost more money and departments try to get by on the cheap.
Mike McDaniel said:
Quite so. When on patrol, I never used a seatbelt. There were issues far more pressing than pleasing safety nazis.
Steve Olsen said:
There’s a typo in the title: “Gary” not “Gray.” Otherwise, as always, a great article. Thank you!
Mike McDaniel said:
Dear Steve Olsen:
Thanks! With my current Internet problems, I wasn’t able to fix that until just now.