Baltimore Prosecutor Strikes Out on Criminal Charges for Arrest Without Probable Cause


By:  Wes Jackson

Recent high-profile deaths of unarmed black men at the hands of police officers have been met with a clarion call for police reform on multiple fronts. Proposals range from requiring officers to wear body cameras to mandates that individual officers carry professional liability insurance. In this spirit, Baltimore City State’s Attorney Marilyn Mosby responded to the death of Freddie Gray by charging the six officers involved in his arrest with criminal assault and false arrest, in addition to the murder and manslaughter charges she brought against three of the officers. Mosby’s theory for the assault and false arrest charges was that, without probable cause to arrest Gray, the officers not only violated Gray’s civil rights but engaged in criminal conduct as well.

Criminal prosecution of officers who intentionally engage in lawless conduct is nothing new. However, many observers noted that Mosby’s attempt to criminalize arrests without probable cause would significantly lower the bar for what constitutes criminal conduct while policing. As one former Baltimore prosecutor wrote when the charges were first filed, Mosby’s novel prosecution would create the expectation “that police officers who arrest without what she considers to be probable cause (a subjective standard) are subject not just to civil action (the current norm) but criminal action. Mere mistakes, or judgments exercised under duress, can land them in the pokey.”

Indeed, when an officer arrests someone without probable cause, the usual recourse for the arrestee is to seek civil damages from the officer for violating his constitutional rights. The officer, as defendant in this civil case, may be entitled to “qualified immunity” if he can show that he did in fact have probable cause to arrest the plaintiff or, absent actual probable cause, that he at least reasonably—albeit mistakenly—believed there was probable cause for arrest based on the circumstances. Under this framework, an officer’s “mere mistake” or “judgment exercised under duress” will not subject him to civil liability so long as that mistake was reasonable. At most, an unreasonable mistake would only subject the officer to civil liability.

Criminal liability for questionable arrests is perhaps the most severe proposal for heightened police scrutiny on the table. As counsel for one of the officer’s charged for Gray’s arrest stated, “[c]ommon sense dictates that officers would simply not make arrests if they were subject to criminal prosecution if it was later determined that probable cause did not exist.” The theory that increased scrutiny has led or will lead to less active policing, known as the “Ferguson Effect,” is hotly debated. Suffice it to say, the prospect of criminal charges for arrests without probable cause will almost certainly give officers pause before arresting suspects—for better or worse.

Mosby’s novel prosecution of the officers involved in Gray’s arrest, however, was a bust: after one mistrial before a jury and two acquittals before a judge, Ms. Mosby dropped all charges against the remaining officers on July 27, 2016. Criminal prosecutions for arrests without probable cause, then, did not gain much traction in the Freddie Gray cases. That being said, the possibility of criminal prosecutions for arrests without probable cause has been broached, and it remains to be seen how the specter of criminal charges will affect police practices.