Freddie Gray is not Trayvon Martin or Michael Brown

Freddie Gray died in police custody after a fairly lengthy multi-stop van ride in restraints. At the time of his death, according to media reports, he had a severed spinal cord and a crushed larynx. The Baltimore Police Department has acknowledged that the officers involved violated its own procedures, at a minimum, by (1) not calling for medical assistance earlier; (2) not securing Gray while he rode in the back of the van. Does this amount to criminal conduct, and was it the cause of Gray’s death? No one knows at this stage, and the officers are entitled to a presumption of innocence. But it certainly appears that, at best, the officers violated policy or engaged in some negligent conduct. The worst-case scenario — given the absence of adequate information about what happened during the van ride, which ended in death — is obvious.

Moreover, Freddie Gray’s death occurred while he was in police custody. This was not a matter of a split-second, life-or-death decision to use deadly force in response to a perceived threat (as was the case with Officer Wilson), where the law appropriately provides a lot of deference to officers in a situation none of us would want to be in. A review of successful federal criminal civil-rights prosecutions for excessive force demonstrates that the DOJ is much more likely to be able to prove a federal civil-rights violation when the victim is in custody, which greatly diminishes any argument that use of force was an appropriate response to a threat. In short, the question of whether the Freddie Gray case could potentially result in an indictment answers itself: It could (of course it may not), and it is the type of case that has resulted in charges in the past.