John Helms, Dallas criminal lawyer answers the question could the Freddie Gray police officer assault prosecution happen in Texas?
Recently, a Baltimore police officer named Edward Nero was found not guilty of assault in connection with the arrest and death of Freddie Gray. Mr. Gray died of injuries while in police custody during a ride in a Baltimore police van, points out Dallas criminal lawyer John Helms.
The prosecution’s legal theory was very unusual. They claimed that the police did not have probable cause to arrest Freddie Gray, that they were therefore not authorized by law to arrest Gray, and that the arrest of Gray was therefore an assault. One of the prosecutors told the judge that the State believed that a police officer commits assault by arresting someone without probable cause even if the officer reasonably believed he had probable cause for the arrest. Officer Nero’s criminal defense attorneys said that they couldn’t find any Maryland case in which this theory has been used.
Top criminal lawyer Helms poses this question: “Could this legal theory work in Texas? That is, if a police officer arrests someone without probable cause in Texas, does that mean that the officer could be charged with assault?”
The answer is that Maryland and Texas have very different legal frameworks when it comes to the crime of assault. In Maryland, a statute passed by the state legislature, called the Maryland General Assembly, defines the crime of assault.
However, there is no statute that defines defenses to assault, such as self-defense. Instead, a Maryland law says that Maryland allows any legal defense recognized by its courts. See, Maryland Code, Title 3, subtitle 2, section 3-209. This leaves it up to judges to define defenses to assault.
As far as assaults by police officers during an arrest, there are few, if any, Maryland cases that deal with the standard of conduct involved in an arrest. This leaves the playing field open for an unusual theory like the one used in Officer Nero’s case.
Texas does it differently. Our laws specifically define a law enforcement officer’s defense to an assault charge when making an arrest. Section 9.51 (a) of the Texas Penal Code provides that a “peace officer…is justified in using force against another when and to the degree [the officer] reasonably believes the force is immediately necessary to make or assist in making an arrest or search, if…(1) [the officer] reasonably believes the arrest or search is lawful…and (2) before using force, the [officer] manifests his purpose to arrest or search and identifies himself as a peace officer…unless he reasonably believes his purpose and identity are already known by or cannot reasonably be made known to the person to be arrested.”
In other words, in Texas, even if an officer lacked probable cause to make an arrest, the officer does not commit an assault if the officer believed he had probable cause and his belief was reasonable. Maryland law simply does not have this kind of clarity, adds attorney Helms.
I believe that the prosecution of Officer Nero would not have occurred if Maryland law was as clear as Texas law. Instead, an officer was put through the incredible stress of a criminal trial only to be found not guilty, and members of the community that wanted a guilty verdict to avenge the death of Freddie Gray were given unrealistic expectations and let down by a not guilty verdict.
Prosecutions of police officers can be emotional and polarizing. I know. I successfully represented former Dallas Police Officer Mark De La Paz in the first “Fake Drugs” trial in Dallas. The not guilty verdict in that federal trial was met with both relief from some and anger from others. I will never forget, though, what it felt like to hug Mark and his wife when the jury found him not guilty on all counts.
If you or a loved one have been charged with assault or other crime, such as drug possession, fraud or even DWI call Dallas criminal lawyer John Helms at 214-666-8010 or contact him through his website.