Was Baltimore’s Curfew a Dress Rehearsal for Martial Law?
TRNN senior editor Paul Jay, civil rights attorney A. Dwight Pettit, and law professor Doug Colbert also discuss the legality of Freddie Gray's arrest
TRNN senior editor Paul Jay, civil rights attorney A. Dwight Pettit, and law professor Doug Colbert also discuss the legality of Freddie Gray's arrest
JESSICA DESVARIEUX, PRODUCER, TRNN: Welcome back to The Real News Network. I’m Jessica Desvarieux coming to you live from our studio in Baltimore. We have been following the protests that have been happening outside of City Hall all day, and we’re joined now by Angel Elliott, our field reporter, out there in front of City Hall. Angel?
ANGEL ELLIOTT, REPORTER, TRNN: Hi, Jessica. I’m actually out here looking at the protesters. They’re heading to Penn Station, and a rally that was originally billed as a call for the officers to be charged turned into a victory rally for these folks, because in a surprise announcement the Baltimore City State’s Attorney Marilyn Mosby charged those folks, and charged all six officers. So the rally here had a jubilant spirit. People were excited. They know that this is just the beginning of the investigation. We have weeks and months ahead of us where we are going to hear testimony from these officers. We actually heard from the FOP president yesterday and he’s calling for a special prosecutor, so people out here are talking about that.
But they’re excited because they feel like this is a new time for Baltimore. There’s national attention on Baltimore and its systemic issues, so that’s what the ralliers here are talking about. They’re going to Penn North. This absolutely is not the last protest that’s going to take place. Back to you, Jessica.
DESVARIEUX: Angel, thank you for that report. Now let’s take it to the studio. In studio we have an esteemed panel. Right across from me is Dwight Pettit, he’s a civil rights attorney. And to his left is Doug Colbert, he’s a criminal lawyer at the Maryland Law School who recently won a class action suit guaranteeing the right to public defenders at bail hearings. And to my right is Paul Jay, a familiar face for all you viewers, senior editor here at The Real News.
Thank you gentlemen for joining me.
A. DWIGHT PETTIT, CIVIL RIGHTS ATTORNEY: Thanks for having me.
DOUG COLBERT, MARYLAND LAW SCHOOL: Thank you.
DESVARIEUX: We just heard Angel out there in the field. Paul, you were out in the field last night. There’s actually a curfew still in place here in Baltimore. Tell us what you saw.
PAUL JAY, SENIOR EDITOR, TRNN: Yeah, there was–I went to City Hall square last night. Our office happens to be right around the corner. I went there just about two, three minutes before 10:00, and the scene was about 30, 40 kids, maybe 50, sitting in a circle. Like, Kumbaya kind of situation. Like, they’re very peacefully sitting there. And they’re chanting, no more curfew, curfew has to go. I think it’s hey hey, ho ho, curfew has to go. Surrounded by hundreds of police waiting for 10:00. Horses, armored carriers. It’s a scene out of some dystopian kind of movie, like Return to New York or one of these crazy things, for 30, 40 kids sitting in a circle as peacefully as you can possibly imagine.
So let’s–we’ll roll the clip. I just got a five minute piece of what happened last night. But just keep in mind the question, why are hundreds of police removing 30 kids with such brute force?
DESVARIEUX: All right, let’s take a look at that clip.
CHANTING: Hey hey, ho ho, this curfew has got to go. [Chant repeats]
JAY: We’re in front of the square, in front of City Hall. There’s a small group of young activists who are chanting, hey hey, ho ho, this curfew has got to go! It is now 10:00 PM. And the curfew is about to–actually started about five seconds ago. There’s a bunch of police lined up in the streets behind us, and in theory are going to move in and try to clear these kids out. It seems to be that they have decided to defy the curfew tonight, and I guess we’ll see where this leads.
– We have a right to be here.
– Geraldo is a racist scum.
– Guys, guys, guys, guys. Let him talk.
– Geraldo is a racist scum, and you need to get the fuck out of here.
– Shut the fuck up, Geraldo.
– Geraldo, get out of here.
– The [inaud.] man over here. The [inaud.] man over here.
– Fuck you and all the media, this is Baltimore’s issue. Get the fuck out.
– Go home, we don’t want you here. You already talked bad about us, get the fuck out of here.
POLICE OFFICER: Sir, step back. Step back from us. You can film all you want, but don’t come into police operations, understood?
PROTESTER, ARRESTED: Can I sit up, is that okay? Seriously, I’m not joking. My left shoulder is really fucked up. Can you get me an ambulance, please? Quickly, man. Shit. You guys get–that white, that dude in the white police officer’s uniform. He–I don’t know what his deal is, but I was like–he literally said I had two seconds, then he just started fucking me up. And I didn’t even say anything to him, I was like, I just said, dude, can you please calm down? I swear to God.
I really–all right, I’m being serious, I need a fucking ambulance. Dude, I–shit. I need a–dude, can you please, like, can one of you guys cut this and cuff me back up in the front? Like, I’m being serious. My left arm is really beginning to bug me. Could you un–could you cut this, and then you can re-cuff me in the front. I don’t–like, from this position it really hurts. It really hurts. Damn it. Shit.
DESVARIEUX: So Paul, some really intense moments captured there. Can we just speak to a couple of highlights that I made notes of. The Fox News reporter Geraldo Rivera was out there in the scene. Talk a little bit more about that interaction.
JAY: Well, I haven’t really been watching Geraldo, so I can’t say. I mean, obviously the people that had been watching and know of his coverage are furious, because they think he’s been depicting–what I do know the way Fox News has been depicting, but also so has CNN, to be fair to Geraldo, he’s not the only one. Totally focusing on this issue of thugs and criminals and the violence, and not dealing with the big issues of why Freddie Gray was killed and the social conditions that gave rise to it.
They seem to have a specific dislike for Geraldo, and it happened, so we left it in there. And I would welcome Geraldo to come on and talk about why he thinks it’s happening.
DESVARIEUX: And also, there was a protester that got arrested. What happened there?
JAY: As you can see, I just came upon it. He’d been arrested. He was saying that his shoulder, he thought, was broken, and he was asking for an ambulance and a medic. At least while he was sitting there, they did not get him any kind of help. He asked simply to have the handcuffs moved to the front of his body rather than the back, because he said his shoulder was killing him. They wouldn’t do that. In the end he is, they get him on his feet and they walk him away, and I actually–there were a big kerfuffle starting, where they were putting people in police vans so I wasn’t able to stay with him to know what happened.
DESVARIEUX: Got it. And the justification for all of this is because they technically broke the curfew. That 10:00 PM curfew. So I’m going to open this up to our panel, and let’s discuss more about this curfew. A lot of peaceful demonstrations. So the question today is why did the Mayor even maintain the curfew?
JAY: I’d like just to add to your question–.
JAY: Is it legal? I mean, can you just define anything as emergency? I mean, what basis can they say that there’s still emergency conditions that require a curfew?
PETTIT: I can’t see it, and I guess–when they declared the state of emergency, or this, I don’t know whether it’s the state declaring it as an emergency. But I would think you’d be correct, Paul, that its existence would be to the extent and the length of the emergency.
JAY: Because there’s supposed to be a constitutional right to protest. You eliminate it as soon as you say there’s a curfew. We will only allow you to exercise your constitutional right within certain hours. Well okay, maybe if all hell’s breaking down, maybe. And even then, I don’t know. If it’s a peaceful protest, who cares whether there’s all hell raining down? Why shouldn’t you still have a right to that protest?
PETTIT: And I would think the American Civil Liberties Union would move on that with some type of relief. I would think.
COLBERT: That’s where I would go, also. It seems to me that whatever basis existed initially for calling the National Guard, that basis is no longer present. And it would appear that a civil liberties group would want to challenge the continued curfew assuming that peace is restored, which it has been, and people seem to be able to get on with their regular life. The idea of having a military presence in the city and in different communities in the city is anathema to our whole existence of being a democratic, constitutional nation.
DESVARIEUX: But Doug, I’m just going to push back a little bit on that point. Because I’m sure the Mayor would say that this is a deterrence. You know, we have a curfew in place, we had criminal charges come up against six officers. I’m sure the police union, we have already heard from them, is furious. Police officers are certainly furious. So to lift the curfew would just sort of possibly put police in greater danger.
COLBERT: So then every time police get charged with a crime we should call in the National Guard to protect against the possibility that people are somehow going to create chaos? No, that–you have to have a very strong justification for calling in the state guard. Monday night there were conditions, Monday afternoon there were conditions that could have led some to believe that it was necessary. But in the last five days, things have gone to relatively peace and calm again.
JAY: You could even say it’s the actual presence of the police, and especially the military, but both at such high tactical levels like armored cars, National Guard armored carriers, police in full riot gear, it’s a confrontation asking to happen. If they weren’t there, there’d be nothing to confront about. They’ve actually created two areas to have confrontations. One is at City Hall and one’s at Pennsylvania and North, where the CVS burnt down. Which has become this symbolic place. But it continues to be symbolic because you have such incredible militarization of the street corner. And so if you want to defy the curfew, you go there. They’re really creating a scenario for this.
And you’ve got to ask another question. Why are they still spending millions and millions of dollars doing this? They know what’s going on. They know there’s no serious threat. There is no question that the police have infiltrated most of the activist groups–this is, like, 101 in how you do policing in this situation. They have the, they have these things called the fusion centers that are very well-known. It’s a fusion of Homeland Security, NSA, the police departments. You’ll have the National Guard hooked in, you’ll have military intelligence hooked in. It is very–it’s impossible to imagine the fusion center is not operating here.
That means they have everybody’s cell phones, which they had anyway. They’re already listening to everybody. But they would do a specific kind of filtering when you have something like this going on. They know there is no real threat here. And if, even if there was something, you’re talking a tiny handful of people, they’d easily find out and figure out who they are right away. So why are they still doing it?
I think the answer is this is a training exercise. They think, and I think rightly so, some day it’s not just going to be some kids out there. Some day unemployment’s going to hit, you know, 15, 20, 25, 30 percent nationally. Now, we’re already in some of the communities in Baltimore, poor communities, unemployment’s already at those numbers. But imagine what it might be when you have another big economic meltdown. They know serious mass protests are coming. I don’t know if one year, five years. You can’t just throw cops and National Guard into a situation like that, especially when the people on the streets might be, you know, 20, 30, 40-year-old workers. When they hit the streets. It’s not like kids. So you can’t throw your forces into this without getting trained.
Now, part of–this isn’t entirely speculation on my part. As I’ve said before, in Toronto we covered the Toronto G20, where there were 1,000 arrests for absolutely nothing. A few windows got broken by people that they knew very well, because we know from court records they had infiltrated the Black Bloc. They knew exactly where and when the windows were going to get broken. More so the police infiltrators were the ones advocating breaking windows. Evidence came out later that some of the police agents actually became agent provocateurs. The police actually left a car out in the middle of the street. They knew ahead of time because they’d infiltrated where the march was going to go. And of course, the car gets lit on fire and that becomes the iconic image of the whole thing.
But a massive, massive police presence like what happened here. Such over-policing that it made no sense. Like, there’s no tradition in Toronto of any kind of level of violence at all. So I asked someone I know who’s very senior in the police department–.
DESVARIEUX: Here in Baltimore? Or Toronto.
JAY: No, I’m back in Toronto. I’ll draw the connection. Is this just a bloody training exercise? Like, you can’t justify what’s going on based on the threat. And he said, yeah. This is, this is a training exercise. Because they–you can’t have such a massive mobilization of police forces when the situation’s really serious. You need these minor instances to get ready for what they think will be a big one. Even though hundreds of people wind up getting arrested, they get criminal records, most importantly their right to protest is completely violated. And this is what the curfew’s doing. That’s how we started off this conversation. The curfew’s saying, you have no right to protest.
There is some–just to add two things. The FBI Police Academy, I may have the exact title wrong, but the FBI Police Academy has a whole international auxiliary and outreach, which essentially is police chiefs all over North America. And they come to the FBI for training. It’s part of how they create a national strategy of tactics and methodology, because you can see the same stuff happening in city after city. It’s not an accident. The White House has a domestic security committee. We know that because one of the deputy police chiefs in Toronto is actually on the White House domestic security committee. And from the source I have, and it’s a good source, this is where they’re starting to coordinate these rehearsals.
But the rehearsals are two things. One, they’re violating people’s rights. Number two, instead of rehearsing for mass repression, how about solving some of the problems?
DESVARIEUX: Yeah, yeah. Dwight, I want to get you into this conversation. Paul mentioned the curfew and people breaking it. It’s sort of an act of civil disobedience, should people who might not agree with it get out there in the streets and do something about it?
PETTIT: Well, nothing wrong with civil disobedience. The only line that, the line of demarcation is when it turns violent. But I would agree with Paul, what we are seeing here is the militarization of America. And they have disguised that in terms of home security, et cetera et cetera et cetera, but this is a national thing that they’re in preparation and training for. I have no doubt about that, whatever they want to call it.
The ironic thing that I find, that here in Baltimore this was historically speaking–I always go back to history. This was the place where they suspended habeus corpus and declared martial law, one of the first places in the history of this nation, just prior to the civil war. And it’s ironic that this would be taking place in Baltimore, of all places.
DESVARIEUX: Is it–okay, so let’s move on a little bit and talk about some news that developed last night. The officers who were charged have now been released. They’ve been, they put up bail for them. I have the figures somewhere in my notes, here we are. Two facing misdemeanors. They posted bail for $250,000. Four officers with felony charges posted bail for $350,000. And the one protester that was captured on film, there was a picture of him breaking a cop window, his bail was set at $500,000.
So Doug, you’re sort of the bail expert here. Talk a little bit about this discrepancy.
COLBERT: Well there’s a lot of discrepancy. Most people who are getting arrested who are protesting are being held for 48 hours, and they’re being held in overcrowded jail cells with two or three times the number of people. They’re getting four slices of bread and one slice of cheese, and that’s their food for–that’s their big meal of the day. And they have not even been charged with any crime, in many cases.
Now you take the six officers. They somehow voluntarily surrender themselves, they get to the precinct around 11:00 or 12:00 noon yesterday. They are pushed through the system somehow magically, they’re not waiting 48 hours. But within six or seven hours they’ve already gotten their bail. The bail’s been posted with a bondsman, and they’re out.
So when you look at different treatment for different people, and it’s one of our big issues here. When you have a money bail system, those who have money regain their freedom. Those who don’t have money stay incarcerated. You have to ask yourself, why is money the determining factor for whether or not someone’s going to come back to court or whether someone’s going to injure or do harm to another person if released? Money is an irrational basis for determining if someone should be freed.
If somebody was a real danger to another person, let’s say a domestic violence situation. And the person narrowly, seriously injured someone, but narrowly missed killing the person. But the person has $100,000 and says fine, I’m going back and I’m going to finish the job. Well, you don’t want that person out of jail, but the money will buy freedom. On the other hand, my law students and I, the law students represent people who are in jail because they don’t have $100 or $250, or $500. And they’re in jail for the most minor charges. Like, one homeless person was in jail for 20 days for stealing a bar of soap and shampoo valued at $11, and his bail was $100. He could not leave jail.
And we have so many instances like that. So it’s an irrational–but it, on the other hand, it’s only rational if your goal is to keep low-income working people and poor people in jail, and to make sure that the wealthy person doesn’t stay in jail.
JAY: And let me just add one thing. Because we talked a lot about systemic abuse, systemic repression. And we’ve been talking about different examples. But bail, I think, is one of the critical ones. The points Doug made are extremely important, but there’s another piece to this. The bail bondsman industry in Maryland is enormous. Is it somewhere in like, a billion dollars, or something like–it’s an enormous number.
COLBERT: Well, we did a report where we estimated annually they collect about $150 million a year just in the ten percent non-refundable fees.
DESVARIEUX: Oh, wow.
COLBERT: It’s an enormous amount. And that money builds a lot of support in Annapolis at the legislative level, at the political level. So the, it’ll be the rare politician–.
JAY: Weren’t they actively, the bail industry, bondsman industry, actively lobbying against the reform you were fighting for, that public defenders, that people have a right–I don’t think people know this. In Maryland up until what, a year and a half ago or something, you had no right to a lawyer at your bail hearing. And bail would be set by some bureaucrat commissioner who’s not even a judge. Your initial bail. Then the next day or two you’d get in front of an actual judge. But they’d almost never undo what the commissioner did. And the commissioner’s sitting next to the prosecutor. There’s no representation of the defendant.
Now, that’s still the case. What Doug was able to do, was able to at least when you come in front of the judge you now have a public defender. Except sometimes if it’s a Monday morning and it’s after a weekend, there could be as many as 150 people charged. You’re lucky to maybe have two, sometimes three public defenders. They don’t even find out who was charged till 7:30 in the morning, but they don’t see who was charged till about 9:00 AM, and they got this line of sometimes 100, 150 people. They get to talk to the person for two minutes, three minutes, right? And then they’re supposed to go represent the case, why this person’s bail shouldn’t be ridiculous.
Doug and I worked together on a case, a homeless guy that actually lives in front of The Real News building. Charged in a minor incident with a storekeeper over an argument for $20. Gets a bit of a scuffle. Police come, the storekeeper says, I don’t want to press charges. I know who he is. But it happened to have been captured on a video camera. So the cop says to himself, okay, I’m speculating because I’m not a mind reader, but it’s pretty clear. I’ve got to make my quota for today. This is an easy bust. I got video and a witness. I actually don’t care whether the storekeeper wants to press charges.
So they arrest this guy. His bail is set at $25,000. And if it hadn’t been for Doug, he would have sat there, get this, probably for 90 days or so before he ever sees any process. But get this. In Baltimore Central Booking, you were not allowed a visitor other than a lawyer for 90 days. No family members, nobody. And if you’re reliant on a public defender, you’re lucky to see that public defender maybe a few days before you go to trial. You could be sitting in there for 90 days and not see a soul. So of course, your family goes hysterical, if you have family. And what do they do? They go to the bail bondsman. And everything is meant to drive you to give the bail bonds industry lots of business, and they are, and then they pay for lots of lobbying and they’re making campaign contributions to politicians.
COLBERT: So one of the things that’s really important here to understand is that this is not just a Maryland problem. People who are listening would assume because we’ve been taught this over and over again you have a constitutional right to a lawyer. But you really don’t. You have one at trial. You have one at critical stages before trial. But you do not–you are not guaranteed a lawyer when your freedom’s first at stake. And so for the last 15 years a group of lawyers, we have been trying very hard to make sure that the constitutional right to counsel begins at the beginning. And I should also add that there were two wonderful pro bono lawyers from the largest law firm, private firm, here in town who sacrificed literally thousands of hours.
So there’s members of the legal profession that are ready to go to bat for people. But the idea is, the biggest takeaway from all this, is that many people are losing their freedom, indeed they’re being punished, before they’ve had a trial solely because they’re poor.
JAY: And add one more thing to that, because they are to a large extent going to wind up being convicted for the same reason, which is the public defenders are way overworked, they’re spread way too thin, but most importantly they don’t have the ability to investigate themselves. There’s–you know, maybe in some federal cases in very serious crimes they start getting–and high-profile cases. Sometimes they give the defense a little money to go investigate. But in the day-to-day people getting arrested here, they have to deal with the evidence that’s been generated by the police. And they only want to generate evidence that convicts the person they arrested, because it’s all about arrest rates and conviction rates. It’s not necessarily about whether you got the right person.
COLBERT: I just want to tell you that I was a public defender for eleven years. So we don’t want to paint the brush too broadly here. There are many public defenders, and many offices where there are resources to be able to do it. But the problem is that the volume of cases and clients coming in, we’re talking about some very dedicated public servants. But the state prosecutor, the state police get so much more resources, financial, money, than the public defenders. So even if you’re Superman and Superwoman you’re still not going to be able to do it for each and every client.
DESVARIEUX: Paul, one more quick comment, I want to kind of transition a little bit.
JAY: One [crosstalk] thing, just understand how profound a problem this is in Baltimore. There is hardly a family in Baltimore that hasn’t had someone arrested, a cousin arrested. I mean, you’re talking about maybe the majority of the city gets wrapped up in this kind of issue.
DESVARIEUX: Yes. Yes, yes. I just want to transition a bit, and I want to, since we have this legal expertise at this round table, I want to get a little bit into the specifics of the Freddie Gray case. We, like I mentioned earlier, State’s Attorney Marilyn Mosby came out charging those six officers. But something that was very interesting is that they were charged with false imprisonment. So that’s essentially saying you can’t just arrest someone because–or at least that’s saying to me, you can’t just arrest someone for making eye contact and running. But we want to unpack that a little bit more. So some facts that we know about Freddie Gray. He was arrested 18 times. This is–ending at 2007. We pulled up some–.
JAY: Starting in 2007.
DESVARIEUX: I’m sorry, starting in 2007. He was arrested 18 times. I haven’t seen any charges. If anybody knows anything different, please do jump in.
COLBERT: You mean convictions.
DESVARIEUX: I’m sorry, convictions. I haven’t seen anything. But do they have legal justification to even chase him? I’ll start off with you, Dwight.
PETTIT: I would think not. I think they have a legal–the standard as I know it in terms of Terry v Ohio is the articulable suspicion. That gives the police officer, if he can articulate the criminal activity that he has suspicions of, or the neighborhood, or what have you, he can approach. And he can check for weapons or what have you. But at that point in time, when that breaks off as it did in this particular case, and he runs and they run after him, you might say well, the running is part of the, the pursuing is part of the initial articulable suspicion. But once you catch him, then I think you have exceeded that, and I think she does something that’s very, very definitive in this issue when she–.
JAY: She being Marilyn Mosby.
DESVARIEUX: Marilyn Mosby.
PETTIT: Marilyn Mosby. When in fact now for the first time the police are in fact being criminally charged for the violations of the constitution, which is that unlawful detention or unlawful imprisonment. Because once they have him–now what they normally do to try to cure that for the public consumption, they’d say okay, we didn’t have sufficient probable cause. We maybe had articulable suspicion. There’s a criminal neighborhood, a crime-ridden neighborhood. What we caught him–but we found contraband. And so they try to come in through the back door, that the contraband supported what in fact was articulable suspicion, that’s debatable. But he had contraband, well he threw some dope, or he had–
But in this instance, she goes further and says there is no illegal activity. There’s no contraband. Because the weapon, or what he had, was a pocketknife, and that was in fact legal.
DESVARIEUX: Legal, yeah.
PETTIT: So if you have nothing after the apprehension to support the original encounter, whether it’s articulable suspicion or probable cause, and so therefore the whole thing is bad. And for the first time that I can recall, we’re seeing a prosecution for the failure to in fact follow–I mean, we’re seeing the imposition of criminal penalties or the attempt to do that for the failure of the police in fact to establish articulable suspicion or probable cause and therefore apprehending a person illegally.
Because the person does not have to submit to an illegal arrest. When you put him down on the ground and you begin to tie him up and handcuff–that’s an arrest. That’s an unlawful detention. And for the first time I’m seeing, I’m sure maybe it happened someplace else, criminal sanction for that behavior.
DESVARIEUX: Doug, do you agree with that assessment?
COLBERT: Almost all of it. I think–to put it very directly, you’re permitted to run away from the police.
DESVARIEUX: You’re permitted to run away.
COLBERT: You are permitted to run away from the police if you haven’t engaged in any criminal conduct or there’s no reasonable suspicion to believe that you’re about to. Now, I don’t suggest that people do that. I tell my law students, you can run, but you know, that’s often where people run into real difficulties with the police pursuing and sometimes up until another Supreme Court case, actually shooting.
But the police do not have a right, as Dwight’s saying, they have a right to stop you for a limited period if they can articulate a reason for why they think you might be engaged in something.
JAY: I’ve talked to a lot of police over the last couple of days, and I’ll give you their argument. They know Freddie. Freddie knows them.
COLBERT: I’m sure they do.
JAY: He has a long history of arrests for drug and robbery charges. I don’t believe–.
COLBERT: There’s a lot of people in Baltimore and other cities who have lots of arrests. The question is whether they can prove anything.
JAY: Okay, well, let me make the whole argument.
COLBERT: Go ahead, I won’t interrupt.
JAY: I just will add one thing. From what we’ve seen of the arrest record, I don’t think there’s a weapons charge.
COLBERT: No, there’s no weapons. Yeah.
JAY: So they see him, they make eye contact, he runs. And the police are saying according to a Supreme Court decision, which we haven’t been able to find yet but maybe you know, in a high crime area with a guy who’s got a record who runs when they see us, meaning the police, we could chase him and find out whether in fact he’s got drugs on him or something else, and so on. So that’s question one. Is that correct.
Now, question two is, if they can make that argument that because they made eye contact, because we know the situation, high crime, his record. If they can chase him under that situation, how much force if any are they allowed to use?
PETTIT: See, I don’t think they can. I think they have to be able to independently articulate some other suspicious criminal activity, not just the history or his, the fact that they know that he has been arrested before. They’ve got to be able to articulate something separate and apart that they think is criminal. That he sold something or he’s passing something, and that’s usually what they do. That they believed to have been a criminal substance, I believe that that cuts it off. And if they can’t articulate that I believe that the apprehension is bad.
COLBERT: Right. And really what the police are saying is that if I go into an inner city neighborhood where people have arrest records, and if you’re looking at me right now and oh my God, that’s a furtive look you’re giving me, I am so suspicious.
JAY: Look and run.
COLBERT: Look and run. Oh, well, you see–so you, there are building blocks that could reach reasonable suspicion. But it’s not looking at a person, being in a high crime area and running. There’s got to be something more. There’s got to be evidence of criminal activity somewhere.
JAY: So how do you take this another step, then? Assuming both you gentlemen are correct, this is completely contrary to what all the police believe they should be doing and are allowed to do. I mean, I’ve talked to lots of them. They have, I don’t know what the Supreme Court case is, they’re quoting a case that says in a high crime area, if somebody runs you can chase.
COLBERT: It’s one of the factors. It’s one of the factors. It’s what’s called totality of circumstances. You can build the blocks. You can have one, two, three, four, five seemingly innocuous reasons. But when you put them together with the police officer’s experience you can then say, I had reasonable suspicion.
JAY: Okay. Well, what are the, how complicated can this get? Because a cop is going to say, look, I got a millisecond to decide if I’m chasing or not.
COLBERT: But there’s nothing in the report that I saw that would indicate that this was the basis for the police chasing Freddie Gray.
JAY: Well, not just Freddie Gray. This is also about going forward. Like, right now what should be and is the legality of the policy? Somebody needs to–and see, as good a job as I think Marilyn Mosby did, she didn’t really clarify this. What she said is you can’t arrest somebody for nothing. You know, she didn’t say you couldn’t chase them. What she said is, once you caught this guy and he didn’t have any drugs, and he didn’t have an illegal weapon, you have to let that guy go. You can’t rough him up, throw him in a van, and so on.
And that, I’m not minimizing that because in Baltimore that’s a big deal to say what she said. But she really didn’t say anything about whether they’re allowed to have chased him in the first place.
PETTIT: And I don’t think you can chase him unless you can articulate that independent action that is, that you believe to be criminal.
JAY: Okay. So if you guys are right, how do you–what needs to be done to make that policy? To actually get this, that the police department agree this is the legality?
COLBERT: One of the places, maybe the worst place where perjury takes place, is during a suppression hearing. It’s what’s called testilying. And the ACLU has documented so many instances where police officers will embellish their testimony to meet the legal standard. There’s a certain, almost a code, almost a way, a formula for how you can testify to meet the 4th Amendment constitutional objection. I’m not saying that every police officer’s perjuring themselves. But that’s the place where the most perjury takes place.
And so Ms. Mosby would not have any reason to reference other ways in which the police are conducting their affairs on the street.
JAY: But she could have said, in this particular situation, he has a right to run. And she didn’t say that.
DESVARIEUX: She didn’t.
COLBERT: Yeah. I don’t thin it would be her place to say it, and I think–.
PETTIT: I don’t think she wants to lock herself in too much on the evidence at this point in time.
COLBERT: But the other thing, just keep in mind that most of the people who are arrested, they never challenge their arrest. They’re in jail because they can’t afford bail. That’s enough punishment. If the police officer knows that I can arrest you and keep you in jail for 30 to 40 days because you don’t have the bail money, I’ve gotten my message across. If I want something from you, like if I want you to work for me, I’ll simply say look, we can play the same game again. So I want you to go out and set up Mr. Pettit here, and I want you to wear a wire next time. That’s policework. I don’t know how many people in the community are or have been informants, but that’s a very important part of the police investigation.
It’s all tied together to Freddie Gray because the Freddie Grays of this world, that’s exactly what will take place on the street. There’ll be some–there was something that happened between these officers and Mr. Gray. There’s some prior involvement here. I don’t even know how they apprehended him. I’m really interested and waiting. Did he just stop and say, I surrender? Or did they tackle him? I don’t know what happened. But somehow he came back from that, he was no longer able to walk.
DESVARIEUX: All right. Gentlemen, riveting conversation. Thank you all for joining us. And thank you for joining us on The Real News Network.
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