Baltimore Two Legal Issues Present Almost Insurmountable Barriers

WASHINGTON, D.C. (December 16, 2015): As public interest law professor John Banzhaf predicted months ago, a jury has refused to convict a Baltimore police officer of homicide for allegedly killing Freddie Gray.

As Banzhaf explained then, any such case presents at least two almost insurmountable barriers:

(1) proving the officer’s criminal state of mind, a much higher standard than in civil negligence case, and

(2) proving that it was the inaction of this particular officer, and not that of others, which was a cause of the death – in other words, that Gray would almost certainly be alive today if the officer had acted.

Establishing either could be incredibly difficult, says Banzhaf, because each must be proven beyond any reasonable doubt, and the evidence is very far from crystal clear.

To be guilty of a crime, it is not enough that an officer acted negligently and/or that he failed to follow a new police policy.

Instead, it must be shown that he acted with “depraved indifference,” “wanton disregard,” a “gross deviation” from a clear standard, etc., depending on the specific charge.

But since many police departments still do not belt subjects into vans, and Baltimore until recently didn’t do it, it’s hard even to conclude that it was negligence, much less wanton indifference.

The same can be said of Officer Porter’s alleged failure to call for an ambulance, since there was testimony that this police practice was not uncommon, since prisoners often faked injuries, and demanded unnecessary medical attention, for a variety of reasons.

Moreover since Porter, like Gray, is African American, it is much harder to argue that Porter’s alleged misconduct was animated by racial animus, much less hatred, noted Banzhaf.

Even if Porter’s failure to act (rather than any affirmative action) constituted the legally required criminal intent, the prosecutor must still prove, beyond any reasonable doubt, that had Porter done what he is charged with failure to do, it is clear that Gray would be alive today.

Since the testimony is far from crystal clear exactly how and when Gray sustained his injury, and even more unclear if somewhat earlier medical intervention would have saved his life after suffering a severed spine, this may prove to be an almost impossible evidentiary burden.

Pinning Gray’s death on Baltimore police may be impossible

In short, even if it is clear that Gray’s injuries were caused by police misconduct such that Baltimore would be liable in a civil action – where the need to prove the specific responsibility of individual officers does not exist – pinning Gray’s death on any one specific officer may be impossible, says Banzhaf.

Although Porter presumably may be retried, and the cases of the other officers may be different in some respects, these two same major issues may prove impossible burdens, says Banzhaf.

While what happened to Gray may cry out for some kind of justice and police reform, both may be accomplished – and far more easily – through a civil suit against Baltimore, suggests Banzhaf.

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418 [email protected] @profbanzhaf

As Predicted, Baltimore Jury Refuses To Convict Cop