The arrest of Freddie Gray will be front and center this week as one of the arresting officers is scheduled to be tried on misdemeanor charges stemming from his actions at the scene.
Officer Edward Nero is charged with second-degree assault, reckless endangerment and two counts of misconduct in office. He is only the second officer charged in connection with Gray’s death to go to trial and the first since December, when Officer William Porter’s trial ended with a hung jury.
Baltimore City Circuit Judge Barry Williams is expected to rule on outstanding pretrial motions Tuesday prior to the start of Nero’s trial, set for Thursday.
“This is, from a lawyer’s perspective, a more important case, perhaps, than any of them,” said Steven H. Levin, a former federal prosecutor who has been following the trials.
That’s because the case against Nero rests on a novel theory from prosecutors: that he engaged in criminal misconduct by unlawfully detaining and arresting Gray.
“That theory goes against everything that police officers have been trained, taught, and told by those who have been training, teaching and telling them,” said Levin, of Levin & Curlett LLC in Baltimore, who trained police on Fourth Amendment law when he was a prosecutor.
Nero’s attorneys, Marc L. Zayon and Allison Levine of Roland Walker & Marc L. Zayon P.A. in Baltimore, have filed motions to dismiss the assault charge on the basis that prosecutors failed to charge a crime.
“Common sense dictates that officers would simply not make arrests if they were subject to criminal prosecution if it was later determined that probable cause did not exist,” states the motion to dismiss, filed in February. “The long term established remedy for a Fourth Amendment Constitutional violation has always been suppression of the evidence.”
Prosecutors countered in a response that Nero has the right to raise the affirmative defense of an officer’s privilege to use reasonable force to effectuate a valid arrest but a non-privileged use of force can constitute an assault.
“Police officers enforce the law; they are not above the law,” the state’s reply argues. “When the act outside their privilege, they may be held criminally liable.”
Nero was on bike patrol with Officer Garrett Miller and Lt. Brian Rice on the morning of April 12, 2015 when Rice made eye contact with Gray near the corner of North Avenue and Mount Street and Gray fled, according to court files. Nero and Miller pursued Gray, who was handcuffed and subject to a pat down, which turned up a knife.
Levin said if the state’s contention is that police cannot pursue someone with a criminal history who flees from them in a high-crime neighborhood then pat that person down for a weapon, “that’s just outrageous.”
Tuesday’s hearing may explain when the state believes the arrest, which they contend was an assault, occurred, according to former city prosecutor Warren S. Alperstein.
“There may be some clarity during the motions hearing, particularly if and when the motion to preclude reference to the knife is litigated,” said Alperstein, of Alperstein & Diener P.A. in Baltimore.
Nero’s attorneys filed a motion to “preclude reference to or argument about the legality of the knife recovered from Mr. Gray,” which the arresting officers said violated city code but prosecutors initially contended was legal.
Even if Miller, who wrote the statement of charges for Gray, was mistaken about the legality of the knife, Levin said a mistake of law is no basis for criminal assault charges.
“I’ve never seen a case where an officer gets charged with criminal misconduct because his good-faith belief turned out to be wrong,” he said.
Supreme Court case law permits police to “do exactly what these officers did,” Alperstein said, including pursuing and detaining Gray then patting him down for weapons if they believe he could be armed and presently dangerous.
The defense theory appears to be that Gray was detained and frisked then arrested for possession of an illegal knife, according to Levin.
“If they find a knife, a law enforcement officer can seize the knife and if it’s an illegal knife, the law enforcement officer can arrest the individual,” he said.
Failure to seat-belt
Nero has also sought dismissal of the reckless endangerment charge, which is based on the failure to seat-belt Gray in the back of the police transport van.
“I don’t see any scenario where Judge Williams dismisses any charges pretrial, whether a bench trial or jury trial,” Alperstein said.
If the charge is allowed to stand, lawyers for Nero have argued in court filings, it creates a strict liability standard for officers whereby every time a person is transported without a seat belt, the officers engage in reckless conduct.
Prosecutors have countered that the facts and circumstances surrounding Gray’s transportation will show Nero’s “failure to seatbelt Mr. Gray during custodial transportation constituted a reckless deviation from police orders that not only knowingly risked injury or death to Mr. Gray but actually resulted in it.”
Williams is also expected to rule on several motions from both sides asking that specific arguments and evidence be prohibited during trial.
The motions mirror those filed in Porter’s case, the bulk of which Williams denied because he was reluctant to force prosecutors to “try their case piecemeal” but rather would evaluate evidence at trial for materiality and relevance. Other motions were denied after the parties agreed certain topics were clearly irrelevant to Porter’s prosecution.
Nero’s attorneys have asked Williams to preclude prosecutors from mentioning Gray’s injuries, video of the arrest scene, any lack of probable cause for Gray’s initial detention and excessive force.
Levin said Williams will likely take the same stance Tuesday and be wary of preemptively declaring subjects irrelevant before the evidence is presented.