The death of Freddie Gray made national news for more than a year, as Baltimore County State’s Attorney Marilyn Mosby went from bringing charges against six police officers, to overseeing their tumultuous prosecution and finally, earlier this month, giving up on the case. Gray’s death and the legal fallout that followed in its wake have been discussed as signal events in the recent debate over police violence and how society ought to deal with it.
But a much less intensely scrutinized police misconduct case out of Baltimore, in which an officer stood accused of gratuitously firing his gun at an unarmed burglar after he was already incapacitated, arguably says more about the kinds of police behavior our criminal justice system will and will not tolerate.
The officer at the center of the case, a 13-year veteran of the force named Wesley Cagle, was found guilty of assault, and not guilty of first or second degree attempted murder on Thursday. The verdict, as reported by Baltimore Sun reporter Alison Knezevich, reflects an apparent belief on the part of the jury that, while the officer wasn’t trying to kill the burglar he was apprehending, he did shoot at him without having a good reason to do so. According to Knezevich’s interview with the jury foreman, it appears that the jurors also felt Cagle had not told the truth when he claimed, at trial, that he had felt fear for his life when he made the decision to fire his weapon.
The incident that led to Thursday’s verdict took place at around 4:30 a.m. on Dec. 28, 2014, when police were called to Baltimore’s Madison-Eastend neighborhood with reports of a burglary in progress at a corner store. According to the account provided by prosecutors when they announced charges in the case, the burglary suspect was wearing a ski mask, and was observed moving from his position near the cash register toward a side exit.
Two of the officers on the scene, Keven Leary and Isiah Smith, pursued the suspect and issued verbal commands for him to show his hands. When the suspect ignored those commands, and instead appeared to reach for his waistband, Leary and Smith opened fire based on the belief that he was armed and was preparing to take out a weapon. But the story doesn’t end there.
According to the prosecutors’ account, the alleged burglar—whose name is Michael Johansen—fell to the ground after he was hit, and landed such that his body was partly inside the store and his feet were hanging out the side exit. It was then that Cagle, who had split up from his fellow officers in order to cover the alley behind the store, made his approach.
Johansen, who is 46 years old and white, says that he was processing his wounds when he saw Cagle standing over him. “What did you shoot me with, a beanbag?” he remembers saying, before Cagle responded, “No, a .40-caliber, you piece of shit.” Immediately afterwards, Johansen testified in court, Cagle shot him in the groin.
The aftermath of the incident could have gone very differently than it did. For one thing, Leary and Smith—whose decision to fire on Johansen when he reached for his waistband was deemed legal by prosecutors—could have said Cagle had acted reasonably in deploying deadly force because, despite being seriously hurt and lying on the ground, Johansen continued to represent a mortal danger.
But that didn’t happen. Instead, when Cagle was charged last August with attempted murder and assault, the officers agreed to serve as witnesses for the prosecution. Even the leader of the local police union declined to support Cagle with any vigor, telling the press last year that the officer would “have his day in court,” and that “the judicial system will properly determine guilt or innocence.”
In court, Cagle’s lawyers ran the same argument that is almost always used to defend police in deadly force cases—namely, that their client had acted out of a desire to protect himself and his fellow officers, and was under the impression that the suspect was armed and dangerous.
“He could’ve shot me,” Cagle said on the witness stand, after testifying that he saw a “shiny silver object” that could have been a weapon. “I then discharged my weapon at the threat.”
But the other officers on the scene declined to lend their credibility to this version of events. As Leary testified last week, “The threat was over.”
Thursday’s verdict—that Cagle was guilty of assault, as well as use of a handgun in a crime of violence—represents a victory over violent policing, and should give hope to anyone who believes that, thanks to the infamous “code of silence,” police officers will always be wiling to provide cover to one another’s bad decisions. As the Baltimore Police Department put it in a statement released after Thursday’s verdict, “This case is an example of our absolute capacity to hold police officers accountable and serves as a reminder to our community that police officers in Baltimore are willing to step up when they see something they know is wrong.”
The outcome of the case should be instructive for anyone trying to understand the logic behind why some police shootings are considered “clean” and others (OK, a very small number of others) are not. After all, prosecutors didn’t accuse Leary and Smith of attempted murder for shooting at Johansen—only Cagle. Why? Because those first shots were taken at a point in time when the officers had very little information to go off of, and every reason to fear that their suspect was armed. Cagle, on the other hand, entered the picture after the potential threat that Johansen posed had been neutralized, and he made the decision to shoot him with what should have been a clear and well-informed state of mind.
One could argue that it sets the bar too low to applaud the conviction of a police officer who stood over a wounded, unarmed man and fired on him out of nothing more than apparent sadism. On the other hand, the bar is low. And while it may be true, as I argued after the Freddie Gray charges were dropped, that criminal trials stemming from police misconduct can’t be the only vehicle for advancing the cause of police reform, the verdit here can only be a good thing. In a case where a police officer tried to justify his malicious use of deadly force by saying he was in fear for his life, the criminal justice system—from the officers who chose not to back him up, to the prosecutors who chose to charge him, to the jurors who chose to convict him—dared not to buy it.
