Professor David Rossman discusses illegal arrest and the charges filed against the six Baltimore police officers.
On April 12, 2015, Baltimore police took Freddie Gray into custody after he ran from them. The police officers at the scene who searched Gray found a folding knife, a legal possession under Maryland law. They charged him with carrying a switchblade, and put him in a police van to transport him to the station without securing with a seatbelt. In the 45-minute trip to the police station, Gray sustained critical neck and spine injuries. When the van arrived at the station, he was not breathing. Police then called a medic, and Mr. Gray was taken to the University of Maryland’s Shock and Trauma Center. One week later, Mr. Gray passed away as a result of his injuries.
The weeks that followed have seen ongoing protests across the country, both peaceful and violent. As tensions mounted and communities called for action in response to police brutality, a medical examiner’s report found that Gray’s death was a homicide, and police conducted an internal investigation. Shortly after that investigation was concluded, Baltimore State’s Attorney Marilyn Mosby filed charges against the six officers involved in Mr. Gray’s death.
Professor of Law and Director of the Criminal Law Clinical Programs David Rossman discusses the Fourth Amendment, protocols police are supposed to follow to ensure the safety of both the officers and the person suspected of committing a crime, and the charges against the six Baltimore police offers allegedly responsible for Freddie Gray’s death.
What are the criteria for a police officer to pursue an individual who is not engaged in apparent criminal activity?
The Fourth Amendment is the constitutional provision that governs the ability of the police to exercise their power to interfere with people’s liberty. It does so by prohibiting unreasonable seizures. However, the first question you have to answer before you can see how it provides any protection is whether a seizure has occurred in the first place.
The Supreme Court has made the resolution of this issue turn on what the police do and how the people to whom their action is directed respond. If the police don’t use actual force, such as gabbing someone, whether they have seized an individual depends on whether a reasonable person, innocent of any wrongdoing, would feel that the police action made it difficult to refuse the police’s show of authority. For example, if a police officer says, “Don’t move!” it would be the sort of show of authority that might lead to a Fourth Amendment seizure. On the other hand, if a police officer just says, “Hey, I’d like to talk to you,” it would not.
However, that’s only half the equation. Even if a police officer’s show of authority would communicate to a reasonable person that the officer’s command is not one that can be ignored, it will not be a Fourth Amendment seizure unless the person who is targeted actually submits. With that background, the answer to the question is not very encouraging from a civil liberties point of view. The police can pursue anyone for any reason. The pursuit itself will not be regulated by the Fourth Amendment because, by definition, when there’s a pursuit there has been no submission to the police show of authority. You can see how the Supreme Court explained this unintuitive result in California v. Hodari D., 499 U.S. 621 (1991).
If the police can pursue anybody without a reason, what happens if the person submits or is physically restrained at the end of the pursuit?
Once someone submits to a show of authority or is physically restrained, the Fourth Amendment does come into play. At that point, for the police action to be constitutionally valid, the police must have reasonable suspicion that the person they have seized has been, is, or will shortly be engaged in criminal behavior.
This standard is not very demanding. It doesn’t require the police to believe that it is more likely than not that criminality is afoot. Nor does it require the police to have probable cause, the standard that governs whether the police can arrest someone. It essentially requires that the police have a rational basis, something more than a hunch, for their conclusion that the person is involved in a crime.
Illinois v. Wardlow, 528 U.S. 119 (2000) gives a good sense of what the Supreme Court thinks reasonable suspicion means. The police in Wardlow were driving through a Chicago neighborhood known for heavy drug trafficking (a description that would probably apply to much of the low income parts of the city). They noticed Wardlow holding an opaque bag. Wardlow looked at the police officers in their car, then turned and ran. The Court held that this scenario was enough to give police the reasonable suspicion that allowed them to restrain Wardlow.
In light of Wardlow, as far as the Supreme Court is concerned, running when you see the police is a good enough indication that you’re a criminal. At least if you’re in the wrong neighborhood. It appears that the police reacted to Freddie Gray in much the same way as the Chicago police in the Wardlow case. According to news reports, “officers arrested Gray on a west Baltimore street because he ‘fled unprovoked upon noting police presence in the neighborhood.’ The officers made eye contact, he ran, and the officers pursued.”
What are the constitutional limits on the power of the police once they have arrested someone?
The way that the police treat suspects whom they have arrested is not thoroughly regulated by the Constitution. Police can’t hold someone for more than 48 hours without having a judicial officer determine that there is probable cause to believe that the detainee committed a crime. And in taking someone into custody, the police may not use unreasonable or excessive force. What’s reasonable will depend on a balancing of interests from an objective point of view. In determining whether an officer used excessive force some of the factors that courts take into account are:
- The severity of the crime or other circumstances to which the officer was responding
- Whether the arrestee posed an immediate threat to the safety of the officer or to others
- Whether the arrestee was actively resisting arrest or attempting to evade arrest by flight
- The amount of time and any changing circumstances during which the officer had to determine the type and amount of force that appeared to be necessary
- The type and amount of force used
- The availability of alternative methods to take the arrestee into custody
Based on the publicly available information, it is difficult to envision how the injuries that Freddie Gray received could be found reasonable.
Are there standard protocols that police are supposed to follow when apprehending an individual? What are they? Were they followed in the Freddie Gray case?
Many police departments have rules about the treatment of prisoners once they’ve been arrested and while they are being transported back to a place of detention, usually the police station. For example, the Boston Police Department has a rule that states: “Officers shall be held strictly responsible for the safe custody of the prisoners under their care and this responsibility is theirs at all times. Prisoners and suspects shall be treated in a fair and humane manner, and the rights to which they are entitled shall be respected.”
News accounts report that the Baltimore Police Department has a regulation that requires prisoners be placed in a seat belt upon being put into a patrol wagon during transport to a police station. This appears not to have been done to Freddie Gray.
What charges do the police officers face in the Freddie Gray case? What standard did the prosecutor use to determine to bring those charges?
The Baltimore State’s Attorney had to determine if any of the police officers involved in the Freddie Gray case committed a crime. She concluded that there was probably cause that the six police officers did so. Three of them were involved in the original chase and arrest, and the other three in the transport process that occurred after the arrest. The charges they face are:
- Assault/second degree
- Misconduct in office
- False imprisonment
- Involuntary manslaughter
- Second degree depraved heart murder
- Manslaughter by vehicle (gross negligence)
- Manslaughter by vehicle (criminal negligence)
Not all of the six face each charge.
Some of these charges indicate that the prosecutor will proceed on alternate theories. The charges dealing with the conduct that caused Freddie Gray’s death, which stemmed from events after he was put into the transport vehicle, are based on theories that his death was a result of conduct that displayed a reckless disregard for the risk to his life or through negligent or grossly negligent action. The false imprisonment charges stem from the premise that the officers who arrested Freddie Gray did so without having probable cause to believe he committed a crime (because the knife found on his person was not an illegal weapon).
What would trigger a federal civil rights investigation?
The successful prosecution of the case against the police officers will depend heavily on establishing how the police transport vehicle was driven and what affect that had on Freddie Gray. Without the testimony of one of the officers who had firsthand knowledge of the way the vehicle was driven, or by the prisoner who was in the other side of the van from Freddie Gray, it will be a difficult case to prove beyond a reasonable doubt.
Police officers are not noted for volunteering to testify against other members of the force to which they belong. One reason the prosecutor may have brought charges with such severe sanctions in this case is that she wants to hold out the prospect of a favorable plea bargain to one of the six officers in return for a guilty plea to a lesser charge and that officer’s testimony against the others. Whether such a thing happens or not is, at this point, quite speculative.
In this environment, it is unlikely that the federal Department of Justice would become involved. The state criminal justice system has responded in a forceful way and the case is far from an easy one. There is little to be gained by the Justice Department putting its prestige on the line by trying to preempt the Baltimore authorities.