Freddie Gray

On Behalf of | May 4, 2015 | Criminal Defense


Freddie Gray’s Police Officers

Freddie Gray died just one week after injuries sustained at the hands of Baltimore Police Officers sparking riots and protests throughout the City of Baltimore. His death raises many questions about what constitutes probable cause to stop an individual, what constitutes probable Cause to arrest an individual, and what constitutes unlawful use of force by arresting officers.

According to statements given by officers, the initial contact between Freddie Gray and Baltimore Police was nothing more than brief eye contact between Gray and one of the officers. It was just after 8:30 am and there was no indication that any crime was in progress or had recently been committed. As three police officers approached Gray, he made the decision to run and a chase ensued. Gray was quickly apprehended and during that stop, an officer claims that he saw a knife in Gray’s pocket.

Gray was placed under arrest for possession of a dangerous weapon. He was then handcuffed and dragged into an awaiting transport van. In a video that was recorded by a witness, Gray can be heard crying out in pain and appears unable to stand or walk. The van made at least three stops while en route to the police station. When the van arrived at 9:40, Gray was unconscious and paramedics were called. Gray suffered a crushing neck injury while in police custody that nearly severed his spine, broke three vertebrae and crushed his voice box; he lingered for a week in a coma before dying.

The first question is whether Mr. Gray was lawfully stopped by police. As an experienced Tacoma criminal defense attorney I had questions about the legality of that initial stop. The police claim that “defendant fled unprovoked upon noticing police presence”. Police never describe any criminal activity or safety concerns. Police state the “defendant was apprehended after a brief foot chase”. The officer’s statements make it clear that Gray’s decision to flee is the only reason for the initial stop. In the State of Washington, police need more than a suspicious glance and quickly leaving the area.

Unfortunately for Gray’s family, according to the United States Supreme Court and the State of Maryland, running away from the police, even for no reason, in a high crime area is enough to support a reasonable suspicion that a crime has been committed. However, in order to search or even frisk a suspect, the officers must articulate additional safety concerns.

Was the search of Gray lawful? Again, an experienced criminal defense lawyer would question the search of Gray’s person. According to the police in a written statement, “this officer noticed a knife clipped to the inside of his right pants pocket”. This led to Gray’s arrest for possession of a dangerous weapon. An officer who is conducting a lawful Terry stop may frisk a suspect if the police articulate safety concerns. This means that the police must have reasonable suspicion that the suspect may be “armed and presently dangerous” to conduct an additional and carefully limited search of the outer clothing for the sole purpose of discovering weapons. The officers never indicate in their report that they have any additional safety concerns.

Another way officers may try to justify the search is under the plain view doctrine. While the plain view doctrine allows a search when evidence is in plain view of the officers, it is not clear whether a “clip” on the outside of the pocket is definitive evidence that there was a knife inside of his pocket, thus allowing for a search of the defendant’s person or even a limited “safety frisk” for the purpose of discovering weapons.

Was the arrest of Gray lawful? A Terry stop is not the same as an arrest. An arrest requires probable cause that a crime has occurred based on the totality of the circumstances. The officers claimed that after the stop but before the arrest, a knife was discovered on Gray’s person. After the discovery of the knife, the defendant was placed under arrest for possession of a dangerous weapon. Whether or not it was in fact a dangerous weapon will depend on the type and size of the knife and if it meets the statutory definition of a “dangerous weapon”. A personal injury attorney representing the family claims that it was “a small pocket knife of legal size”.  If that turns out to be the case, the arrest may have been unlawful.

Did unlawful use of force used by officers against Gray result in his death?  Even if the courts ultimately hold that the stop, the search and subsequent arrest of Gray were lawful, it still must answer the question of whether unlawful force was used by the police while Gray was in their control and custody. Recent allegations of police brutality and the killing of unarmed citizens, predominately black men, have raised questions about police tactics and whether the amount of force being used against citizens is in fact lawful. It seems fairly obvious to most that no person should ever die of blunt force trauma at the hands of the police. Gray’s autopsy showed that his spinal cord was nearly severed, three vertebrae were broken and his voice box was crushed. The report cited “powerful blunt force” and “hyperextension of the neck” as likely ways to cause this type of damage. Expect to see more details of this in #blacklivesmatter accounts.

At the time of his arrest, at least one witness claims that Gray was on the ground and that officers had their knees on his neck and back, while another witness claimed that officers had “bent Gray like a pretzel”. A video filmed by a witness shows officers dragging Gray towards the transport van. In the video, he appears to be having difficulty walking and is crying out in pain. This seems to suggest that serious bodily injury probably occurred prior to and during the actual arrest.

The Baltimore Police Department has suggested that a failure to seatbelt Gray into the transport van may have resulted in the traumatic injury during the transport to jail. It was even suggested that perhaps officers had given Gray a “rough ride” in the transport van and promised a full investigation. The transport van took over an hour to reach the police station and included three stops, which caused a substantial delay in getting Gray proper medical treatment. The investigation into what transpired during the arrest and those stops is still ongoing. The results of that investigation will likely have a huge impact on any future law suit against police for civil rights violations.

Can the police be sued for civil liability for the death of Gray? The short answer is yes. However, whether Gray received his injuries before or after his arrest will determine what Gray’s family will have to prove in order to prevail in a civil case under Maryland’s current application of the law.

Ironically, what may have initially looked liked the Police Department’s willingness to acknowledge its mistakes that Gray wasn’t wearing a seatbelt, and that officers may have given him a “rough ride” may actually be a clever ploy in an attempt to avoid civil liability in this tragic case. This is because if a Judge believes that Gray was fatally injured after his arrest as he was being transported without a seatbelt and that his injuries were not inflicted wantonly or sadistically, the court may not find that the police have any civil liability for his death. This is because Gray had fewer Constitutional protections after his arrest than before.

In Maryland, courts have limited the Fourth Amendment “seizure” protections of an individual are limited to the initial arrest. Therefore, if the injuries occurred before or during the initial arrest, a judge could determine that the seizure and the force used during that seizure was not “objectively reasonable” based on the totality of the circumstances under the fourth amendment. This would strengthen the Gray family claim against the Baltimore Police Department. However, if the injuries were sustained after the arrest, the judge would have to conclude that force was applied “maliciously and sadistically” for the purpose of causing unnecessary and wanton pain and suffering under the Due Process Clause of the 14th Amendment. This would be much, much more difficult for the Gray family to prove.

Gray‘s family may also argue that Gray’s rights were violated under the Eighth Amendment prohibition against “cruel and unusual punishment”. Under this theory, the Gray family would have to prove that the police are civilly liable for his death because they failed to provide necessary medical treatment to Gray while he was in their care and custody during the delayed transport to the police station.

What is the likely outcome of a lawsuit? Juries can be unpredictable and there is never any guarantee of a big jury award. However, unlike some recent cases that have made headlines, Baltimore officers have not argued that that they acted in self-defense. Instead they seem unable to offer any explanation as to how Gray sustained his fatal injuries while in police custody. Although the city of Baltimore has paid out settlements and judgments totaling $5.7 million since 2011, those funds have been paid out on several individual lawsuits as documented in a recent Baltimore Sun article.

The Local Government Tort Claims Act (LGTCA) caps damages against local government at $200,000 per claim. Jerriel Lyles, a Baltimore resident, successfully sued Baltimore Police for an assault which occurred in January 2009. A jury awarded Mr. Lyles $500.000 which the court quickly reduced to $200,000 to comply with the LGTCA. Even if the family prevails in a lawsuit against Baltimore Police, their damages will likely be limited by the LGTCA and it will be the Baltimore tax payers that foot the bill. As for the police involved, individual reprimand or termination is rare, even where a lawsuit has either settled or the victim has prevailed in their lawsuit against the officer.  Unfortunately, the likely outcome of a lawsuit is that any jury award will not adequately compensate the victims due to the LGTCA, the officers involved probably won’t be successfully prosecuted or even have their employment with the Police Department terminated, and as a result, the system will not change.

If you have any questions about potential civil rights violations, our experienced attorneys can help you. Call today for your free consultation.