Did the Police Officers in the Freddie Gray Case Act Reasonably?

It depends on whether you think not following department policy is reasonable.

William Porter / Freddy Gray
Officer William Porter arrives at the courthouse in Baltimore, on Dec. 16, 2015. Porter is one of six officers charged in connection with the death of Freddie Gray.

Photo by Algerina Perna/the Baltimore Sun/Pool via Reuters

As Baltimore absorbs the news of a hung jury in the trial of William Porter, one of six police officers charged in connection with the death of 25-year-old Freddie Gray, it’s worth taking a closer look at the complicated legal concept at the center of the case: reasonableness.

Porter, a black officer who joined the Baltimore Police Department in 2012, was accused by prosecutors of criminal negligence and recklessness for declining to provide Gray with medical attention when he said he was hurt, and for allowing him to be transported in the back of a police van without a seatbelt. The judge overseeing the trial told jurors on Monday that in order to find Porter guilty of involuntary manslaughter, the most serious of the four crimes Porter was charged with, they would have to determine that the officer’s conduct on the day Freddie Gray was fatally injured reflected a “reckless or wanton disregard for human life,” and was a “gross departure” from what a “reasonable police officer” would have done in a similar situation.    

But what exactly is a “reasonable police officer”? And how is the jury supposed to know how he or she might behave under hypothetical circumstances?

These difficult questions are, unfortunately, at the very heart of how we adjudicate police misconduct in our legal system. Thanks in large part to a 1989 Supreme Court ruling known as Graham v. Connor, the concept of “reasonableness” is especially key in use-of-deadly-force cases, which require judges and juries to determine whether an officer’s decision to use lethal force was a crime or not by imagining what an objectively reasonable officer would have done in his place.

Of course, how “reasonableness” is defined makes all the difference in such cases. The Porter trial made this abundantly clear, as the prosecution and the defense sparred over what it means to be a reasonable police officer in Baltimore.

The prosecution stressed the police department’s clear and well-publicized rules, laid out in official emails and training booklets, on when to call for medical attention and when to use seatbelts on detainees. A reasonable police officer would have followed those rules, the prosecution argued, and the fact that Porter didn’t do so characterized him as a callous and careless officer. He acted unreasonably, in other words, by flouting the rules set forth by his department.

Lawyers and witnesses for the defense had a different message for the jury: Official department policy doesn’t matter in Baltimore, they suggested, because no one at BPD really knows it by heart or follows it to the letter. Witnesses—including several current BPD officers—testified that a number of rules that exist on paper are, in practice, routinely ignored in the department. Much more important than official rules, according to captain Justin Reynolds, is common sense, which “prevails over everything else” in the BPD, he said—including general orders that it doesn’t always make sense to follow. Mark Gladhill, one of Porter’s fellow officers, testified that the seatbelt rule had traditionally been one of these formal directives that weren’t followed. Having participated in some 75 arrests in his time on the force, Gladhill said, he couldn’t remember once seeing a detainee buckled while being transported in a police van.

The fact that Porter didn’t put a seatbelt on Freddie Gray didn’t make him a criminal, was the point of this testimony—it made him normal. As Porter’s attorney put it in his opening statement, “Officer Porter didn’t even know there was a rule. You can’t hold him accountable for what nobody did.”

As the Baltimore Sun’s Ian Duncan wrote in an excellent piece of analysis, the defense “portrayed a dysfunctional police department that rushes officers to the streets without proper training, forcing them to learn as they go and follow the advice of veterans rather than standards and rules.” In a department where officers are guided in their actions by personal discretion and social norms rather than the rules they learned in the police academy, the defense argued, Porter could not be held criminally responsible for following the example of his peers and superiors.

This is a somewhat frightening notion, suggesting as it does that “other people were doing it” is a plausible defense of misconduct. While it may be true that “everyone” in the BPD routinely violates policies designed to keep the people in their custody safe, that doesn’t mean that doing so is reasonable, or acceptable.

“The … standard is ‘what a reasonable officer would do,’ not ‘what a reasonable police officer with the Baltimore Police Department would do,’ ” said Jeffrey Noble, who served as the deputy police chief in Irvine, California and testifies frequently in cases involving police use of force. “If you have an agency that’s behaving poorly across the board, you can’t say, ‘We all act badly in this department, therefore what we do is OK.’ ”

It’s crucial to note that the case against Porter was complicated for a number of reasons that had nothing to do with reasonableness. For one thing, the prosecution couldn’t say for sure when exactly Gray suffered his lethal injury, except that it was at some point after he was first shackled. Porter wasn’t one of the officers who initiated Gray’s arrest, and thus wasn’t one of the officers who initially put Gray in the back of the police van without a seatbelt. What Porter was being accused of in this trial, in other words, was failing to act: as Justin Fenton, the crime reporter for the Sun, put it on the first day of the trial, it was “a case of police indifference, not brutality.”

That made the prosecution’s job harder. Regardless of what you think a reasonable police officer would or wouldn’t have done in Porter’s situation, proving that someone committed a crime by failing to do something good is harder than proving they succeeded at doing something bad. As University of Pittsburgh law professor David Harris told the Sun, “We’re pretty stingy in this country and this culture with obligating people to do stuff.”

It may also have been the case, however, that the defense managed to convince some of the jurors to consider Porter’s actions not in the context of what the Baltimore Police Department’s official policies say he should have done, but in the way its officers carry out those policies on the street. Whether that’s reasonable or not, it may have been the reason why this trial ended the way it did.