Freddie Gray’s knife, Part Two

The prosecutor in the Freddie Gray case contends that it was not unlawful for Gray to be carrying his knife — a “spring-assisted, one-hand-operated” device — and that therefore it was improper to arrest him. I argued here that the prosecutor is likely wrong because Baltimore city law makes it unlawful to “possess any knife with an automatic spring or other device for opening and/or closing the blade. . . .”

But Bill Otis points out that the main issue isn’t really whether Gray’s knife was illegal. To be sure, if Gray violated city law by possessing the knife, the prosecutor cannot base her false arrest charge on the theory that possessing the knife was lawful.

The police, however, needed only have had “probable cause” to arrest Gray. Probable cause does not require that Gray’s knife be illegal. Instead, the probable cause requirement is satisfied if the police had probable cause to believe the knife was illegal. Under United States v. Sokolow, 490 U.S. 1 (1989), the officers had probable cause if they had a fair reason to believe Gray had an illegal knife, whether or not they turn out to have been correct.

If there is uncertainty as to whether Gray’s knife meets Baltimore’s definition of the kind that’s banned, then the officers presumably had a fair reason to believe Gray possessed an illegal knife — in other words, “probable cause.” At a minimum, the prosecutor will not be able to prove the contrary beyond a reasonable doubt.

As Bill concludes, “Ms. Mosby’s case will not necessarily unravel if the police are determined to have had probable cause, but it will start off with one foot in a deep bucket.”

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