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  May 11, 2015

Did Freddie Have a Right to Run?


TRNN's Paul Jay, Attorney A. Dwight Pettit and law professor Byron Warnken discuss whether or not the Baltimore police had a right to use force to stop Freddie Gray; the States Attorney has said the arrest was illegal, but has not commented on the stop.
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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I'm Paul Jay.

When you talk to police around Baltimore about the Freddie Gray case, many of them actually cite a Supreme Court decision that says they have a right, the police, to chase somebody simply based on the fact that the person is in a high crime area, and running away. The Supreme Court case they seem to be citing is Supreme Court Illinois, Petitioner v. William aka Sam Wardlow. This is a year 2000 case.

The Supreme Court found, "We hold that the officer stop did not violate the 4th Amendment of the United States Constitution." Further down, it says, "In Terry," which is another case that they refer to, "we held that an officer may, consistent with the 4th Amendment, conduct a brief investigatory stop when the officer has a reasonable articulable suspicion that criminal activity is afoot." Further down, "The officer must be able to articulate more than inchoate and unparticularized suspicion or a hunch of criminal activity." And further down, "Headlong flight, wherever it occurs, is the consummate act of evasion. It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such."

Now joining us, again, is our esteemed legal panel. First of all, Dwight Pettit. He is a civil rights, criminal, and constitutional lawyer in Baltimore, Maryland. And Byron Warnken is a University of Baltimore law professor and expert on criminal and appellate law.

Mr. Warnken, what do you think? If you take this case, the police are arguing--and I'm talking beat cops, because this is their understanding of what they should be doing, that the cop had the right to chase Freddie the way he did and stop him. Now, we're not arguing now about the arrest. The State's Attorney has already said the arrest itself was illegal. There was no probable cause, they found nothing wrong. But what about the stopping of a guy running because he's running?

BYRON WARNKEN, BALTIMORE ATTORNEY COUNSEL TO WARNKEN, LLC: The Maryland law and the Supreme Court law might be slightly different. You say, how can that be? Well, we could afford more rights to defendants. We couldn't afford less rights to defendants than the Supreme Court offers.

Taking this case, the Illinois v. Wardlow, would seem to suggest that they could stop this person merely because they are in a drug, crime--a high-crime area. Maryland case law says that if I'm a cop and I encounter you and I see you, and you see me and you take off, mere presence of taking off in front of the presence of a police does not give me the right to stop you. I need something else. Now, if in fact I know you're a drug user, I know you've got pending charges for drugs--it doesn't take too much more to allow me to stop you.

Now, in this particular case, the Supreme Court case you referenced, there was a stop and a frisk. Under the Supreme Court law, even if I have reasonable suspicion of--which your running by itself is not enough, but even if I have reasonable suspicion, then that's only to stop you. In order to pat you down, I need reasonable suspicion that you're armed and dangerous.

JAY: Well, that's a much higher bar. And Freddie certainly didn't have anything close to that bar. I mean, the only elements as I understand in Freddie's case is the area, I guess is a high crime area. It's a poor, it's a project where a lot of poor people live, and I guess a certain amount of drug dealing goes on there. There was nothing, no drug dealing in sight at the time Freddie was there.

WARNKEN: Right. Now, the facts that I heard, whether they're true or not I'm not sure, from the media is that apparently one or more of the officers was aware that he was a drug user and--.

JAY: He had 18 previous arrests, a few of which were still outstanding. He did not have any outstanding warrants. But he, since 2007 had been arrested about 18 times. Nothing--with no violence. He's never been, as far as we can make out from the public record, never arrested for anything to do with guns or anything. Drug busts and some minor burglary.

WARNKEN: My guess is that that would probably permit them to stop him. But if they stop him, they can't frisk him unless there's evidence that he's armed and dangerous. It just allows them to talk to him to see if they can confirm or dispel their suspicion.

JAY: Just one more question. The guy's running. How much force are they allowed to use to make the stop?

WARNKEN: Well--.

JAY: What if he won't stop?

WARNKEN: Right. If he will not stop, then there reaches a point in time, factual question, when they could make him stop and talk to them. Which--.

JAY: Even if he's not armed and dangerous.

WARNKEN: Even if he's not armed and dangerous. Right.

JAY: Okay. What do you think? This chasing, was it legal? Not the arrest, because the arrest already has been termed illegal by the State's Attorney.

A. DWIGHT PETTIT, CIVIL RIGHTS ATTORNEY: Again, the professor is pretty accurate on the law. But I would bring in some other distinguishing elements in the Wardlow case. In Wardlow, we haven't paid any attention to the fact that not only is he in a chronic crime area, and not only is eye contact made before he runs, but he has a bag. A dark bag that he's carrying. And in that particular instance it appears as though what he's apprehend--not appears, but he's apprehended. And when he's apprehended even though it's a bad search, a bad arrest as we say, even though in this case Gray is bad arrest. But in that case he does have a gun in the bag.

And so in this instance of Freddie Gray I think under Maryland law, combined with the Supreme Court, I think that they have--it goes back to reasonable, articulable suspicion. I think they got to be able to articulate under Maryland law that he does something more, other than just eye contact. And in this case, Mr. Gray has on jeans, he has on a jacket which is short, he has on a, it looks like a t-shirt under the jacket. And so even from observation you can conclude that he does not in fact have a weapon, unless it's well concealed in his [dip] or something like that.

In the Wardlow case he has a bag, which also could fuel and add substance to the fact that he might in fact be in violation of the law, if not by contraband, but having a weapon. And so I think that's something that's going to be very much a part of distinguishing whether or not this can be a chase, in this particular instance.

Now, just to go further, I think Wardlow also goes and lays to rest--as you said, you said it earlier, the fact of making the arrest. Wardlow says very specifically. But in this case, the officers found respondent in possession of a handgun and arrested him for violation of Illinois's firearms statute. No question of the propriety of the arrest is itself before us. But they go on to say that by the fact, in this case in terms of Gray, there's nothing there. Because the police, from what I understand, make a misrepresentation by saying it's a switchblade which would give what I call back door probable cause. But if it's a pocketknife, then there is no basis for anything to take place and it must stop at the point in time that they realize that he is not in violation of the law by any contraband or weapon.

JAY: Now, Mr. Warnken, we know that you're, you now I believe have a contract where you're going to do some teaching of the police about exactly these kinds of procedures. And I assume this is going to be a case you're going to look at and talk about.

WARNKEN: Oh, I've been, I've been lecturing to police throughout Maryland and Virginia for 25 years on training them so that they're always up to date on the law. And certainly stop and frisk and arrest is part of what I go into in great detail. They have 130 pages of training documents that I have prepared for this 12-hour training.

JAY: Well how, how prepared are they? Because we talked to people in the community here--.

WARNKEN: I haven't started yet, so I don't know that they're prepared.

JAY: Oh, you're ready to start. Okay.

WARNKEN: We start next week.

PETTIT: Can I just say what--what, the language I was looking for, if I may. If the officer does not learn facts arising to the level of probable cause, the individual must be allowed to go on his way. That is Supreme Court Rehnquist, as conservative he is, Chief Judge, that is his opinion, his language. And so that goes back to what I would say, once Mr. Gray is detained and he has nothing on him that threatens their safety, as Professor Warnken said they've got to cut him loose.

JAY: Well, that's what the State's Attorney ruled, which is why these cops are charged with--.

PETTIT: Exactly. I'm just giving the--.

JAY: The forcible confinement and such. But this was a very--case with a microscope on it. And there were thousands of people in the streets, and the media from all over the world were descending. But every day this happens in Baltimore. There is constantly people being rousted on corners. We've heard this term, walkthroughs, where people are being picked up, taken back to the police station. No charges, they make them sit there all day long, then they throw them back out again. Constantly people are milling on corners and run when the cops show up.

Where and when does a cop know when to run? I actually talked to a cop, and he said, I'm not chasing anybody anymore. Why should I suffer the consequences? Chasing meaning when someone's actually not doing anything but they run just because I show up.

WARNKEN: Because these cases are so heavily fact-based and no two cases are exactly alike, that certainly if I'm a police officer, if I want to play it conservatively, then at least if there's an argument that I can't go forward now, I'll just stop. I mean, I don't want to be charged. I don't want to have a civil lawsuit. So a police officer has to make a decision.

But frankly, because it's such a fine-tuned thing, most courts and most juries in a very, very close case will defer to the judgment of the officer if there's facts that could support what he or she did.

JAY: But when you talk about the factual basis, it seemed to me you said something very, very important which is there's another bar, which is armed and dangerous versus maybe has some pot or something on them. I mean, what do you think? Should the policy be that if you don't think the person's armed and dangerous, let them run?

WARNKEN: Well, it isn't a policy. It's the Supreme Court law.

PETTIT: Terry v. Ohio.

JAY: Well, that's sure not what's happening here.

WARNKEN: Because I have, if I have reasonable suspicion, which under our hypothetical would be flight plus a little more something. That would allow me to stop and detain you while I confirm or dispel my suspicion. If I dispel my suspicion, I must let you go. If I confirm it I can arrest you. Unrelated to that is injected into the facts, do I have reasonable suspicion that you are presently armed and dangerous? If so, then I could arrest you based upon that.

JAY: And if you were teaching--and especially the daily street corner situation, what do you think should be the policy?

PETTIT: Well the policy, I think that--you know, I don't agree with. I don't agree with Terry v. Ohio. But Terry v. Ohio is Supreme Court ruling in terms of being able to approach a citizen. And that defines what they consider [talking]--.

JAY: But what do you think should be the policy?

PETTIT: Well I said, I disagree with ruling. With the ruling. I don't think you should be able to just, to stop and frisk because of the so-called articulable, reasonable suspicion. That to me is so vague and so subjective that that should not be the standard. I would disagree with Terry v. Ohio, but that's the law in terms of the law of the land.

JAY: So what should be the standard?

PETTIT: Now the problem is--Paul, let me just interject. The problem is under criminal law there is no sanction. The only sanction is the exclusion of what is, [ever is] received. In other words, it will be suppressed. And how many people can turn around and do a civil suit off of damages because of violations of their constitutional rights? You're talking about people on the street and so forth, running. They can't do that. So what's, what's the damage that the police officer has to, or the sanction that he has to look forward to? The only sanction is that his arrest is going to be declared unconstitutional and it's going to be a bad arrest, and the defendant's going to be cut loose. That's not very much of a sanction.

JAY: Well, the State's Attorney just did another sanction, which says actually you, the policeman, can be arrested if you arrest without probable cause.

PETTIT: And that's the first time I've seen a State's Attorney in this state, and for that matter in the country, go to the criminality of that. We do it all the time in civil suits for damages. False arrest, false imprisonment, et cetera, et cetera, et cetera. Violation of the Maryland Declaration of Rights, as well as the Constitution of the United States. Search and seizure, 4th Amendment.

But what she did by criminalizing this and take it as a sanction of actual criminal law against the police officers, I think is new and is going to have everlasting impact.

JAY: And you agree with that? You're going to teach that to the cops?

WARNKEN: Yes. She held that because there was no probable cause, that makes the arrest illegal, which makes the cops subject to a criminal misdemeanor called false imprisonment.

JAY: Okay. Thank you for joining us. And thank you for joining us on The Real News Network.

End

DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.



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