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Freddie Gray defendants seek dismissal of reckless endangerment charge

This photo provided by the Baltimore Police Department on Friday, May 1, 2015 shows, top row from left, Caesar R. Goodson Jr., Garrett E. Miller and Edward M. Nero, and bottom row from left, William G. Porter, Brian W. Rice and Alicia D. White, the six police officers charged with felonies ranging from assault to murder in the death of Freddie Gray. (Baltimore Police Department via AP)

This photo provided by the Baltimore Police Department on Friday, May 1, 2015 shows, top row from left, Caesar R. Goodson Jr., Garrett E. Miller and Edward M. Nero, and bottom row from left, William G. Porter, Brian W. Rice and Alicia D. White, the six police officers charged with felonies ranging from assault to murder in the death of Freddie Gray. (Baltimore Police Department via AP)

Attorneys for three of the police officers charged in connection with the death of Freddie Gray in April are seeking to have reckless endangerment charges dismissed because they claim failing to seatbelt a prisoner alone does not constitute a crime.

Brian W. Rice, Garret E. Miller and Edward M. Nero filed Sept. 11 the motion to dismiss for failure to charge a crime, which was posted on the Baltimore City Circuit Court’s website Thursday.

The officers argued failure of a police officer to seatbelt a prisoner during transport doesn’t constitute a crime in Maryland and requested a hearing on the issue.

Following the May 21 indictment of the six officers, Rice, Miller and Nero requested bills of particulars with respect to the charged offenses, according to the motion. On the reckless endangerment count, the bill clarified the reckless conduct alleged was “failing to secure Mr. Gray with a seatbelt during the process of Mr. Gray being transported in a police vehicle.”

Jacob S. Frenkel, a criminal defense lawyer not involved in the case, said the motion is an example of attorneys pursuing information early and diligently.

“I think this motion to dismiss is a smart strategic move and it highlights the importance of using all procedural options available to counsel,” said Frenkel, of Shulman, Rogers, Gandal, Pordy & Ecker P.A. in Potomac.

If the charge is allowed to stand, the motion argues, it creates a strict liability standard for officers whereby every time a person is transported without a seatbelt, the officers engage in reckless conduct.

The motion cites federal Eighth Amendment claims where courts have held failure to secure a prisoner with a seatbelt does not make an officer “deliberately indifferent to conditions posing a substantial risk of serious harm,” which the Supreme Court has equated with recklessness.

The motion does not cite any direct authority relating to the recklessness of not securing a prisoner with a seatbelt but states the defense could find “no precedent, anywhere in this country, in which a police officer has been prosecuted criminally for failing to seatbelt a prisoner.”

The absence of controlling case law does not matter in making the argument, according to Frenkel.

“When there’s nothing else there, what you’re doing is pointing out to the court that this is the body of law from which you can draw,” he said.

In addition to reckless endangerment, Rice is charged with involuntary manslaughter, second-degree assault and two counts of misconduct in office. Miller and Nero are also charged with second-degree assault and two counts of misconduct in office.

Caesar R. Goodson Jr., William G. Porter and Alicia D. White are also charged in relation to the incident. Judge Barry G. Williams earlier this month denied defense motions to dismiss the case, recuse the Baltimore City State’s Attorney’s Office and to change venue. The judge granted the defendants’ requests for individual trials.

Electronic court records show all six officers scheduled to have jury trials beginning Oct. 13.