WASHINGTON, D.C. (May 1,  2015): The charges against six Baltimore Police officers in the case of a death caused by an alleged “80 percent severed” spine may go too far, and some are likely to be dismissed by a judge and/or fail if there is ever a trial, says public interest law professor John Banzhaf, because of at least two important factors: causation and divided responsibility.

Baltimore Police Overcharged, Likely to be Dismissed

To convict someone of second degree murder or many of the other homicide charges, it is not enough to simply show that the Baltimore Police officers acted improperly (e.g., failing to use a seat belt) or even criminally (e.g., making an illegal arrest).  In addition, it must be proven beyond any reasonable doubt that each such action or inaction was in fact a direct cause or a major factor in the death.

Baltimore police: How or when the fatal injury occurred?

Since the statement of probable cause read by Baltimore lead prosecutor Marilyn J. Mosby did not include any explanation of exactly how or when the fatal injury occurred, it may be difficult to establish that any of the alleged wrongful acts or omissions was in fact the cause of the death.  In other words, prosecutors may not be able to establish beyond any reasonable doubt that the injury would not have occurred if he had been seat belted after the third, fourth, etc. stop, or that rendering medical assistance at any particular stop would have definitely prevented the death from occurring.

It is reasonably clear, says Banzhaf, that had Freddie Gray not been arrested in the first place, none of this would have happened to him.  So, in some sense, the arrest – allegedly illegal – was a cause of Grey’s death.  However, the intervening actions of a number of other Baltimore Police officers who took over after the initial arrest occurred, and had a role in transporting the victim, are likely to be seen an intervening causes – breaking the chain of legal causation so that the false arrest is no longer a direct cause.  If not, then officers who falsely arrest someone would be criminally liable for anything which happens thereafter – e.g., even if he died in a hospital from malpractice, or was beaten to death in jail by another inmate.

Baltimore police: Issues raised by divided responsibility

Closely related to the problem of proving causation are the issues raised by divided responsibility, since to convict any particular officer, the prosecutor must prove beyond a reasonable doubt that his or her action or inaction was a direct cause of Grey’s death,  Thus, if officer X had for example suggested that the wagon be stopped, and that medical assistance be brought to the location of the transport vehicle, but other and perhaps more senior officers would likely have disagreed, it’s hard to be believe – much less to prove beyond a reasonable doubt – that the silence of office X was a direct cause of Grey’s death.

Moreover, it’s not completely clear that it was wrongful, or even negligent, for Baltimore Police officers to continue to transport a prisoner simply because he complains of pain, problems of breathing, etc.

The Baltimore Police will probably put on experts who will testify that such complaints are all too frequent, and usually false or at least exaggerated, so that a fixed rule requiring that transport vehicles always be halted in such cases would result in enormous wastes of time and much less efficient policing.  It may also be true that it is better to continue to transport the prisoner to the booking station, since the medical treatment available there may be better than in any ambulance which might be called if the transport vehicle is stopped in the street.

It’s quite possible that the prosecutor “overcharged” at least to some extent in this situation.  Prosecutors frequently overcharge to pressure defendants to testify against others, etc.

But, regardless of the reasons behind charges which seem far reaching in the apparent absence of a clear statement of exactly how and when the fatal injury occurred, it may well be that some will be dismissed by a judge, and that others will fail at trial, 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)

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