Attorneys for Baltimore Police Officer Edward M. Nero are asking a judge to throw out a second-degree assault charge against him in the arrest of Freddie Gray, alleging prosecutors have failed to outline actions that constitute the crime.

Short of dismissing the charge, Nero's attorneys have asked Circuit Judge Barry G. Williams to block prosecutors from mentioning key aspects of their theory, including an alleged lack of probable cause for pursuing and arresting Gray, during Nero's upcoming trial.

They also want to block prosecutors from using key evidence in the case, including citizen video of the arrest and the knife found on Gray.

Gray, 25, died last April, a week after suffering a severe spinal cord injury in police custody. Nero and five other officers have been charged in his arrest and death. All have pleaded not guilty to all charges.

Attorneys for Nero say any suggestion by prosecutors that Nero and the other officers lacked reasonable suspicion or probable cause to stop Gray, that the knife found on Gray was legal, or that police used excessive force would not be grounded in any legal reality, and should therefore not be raised before jurors.

They also ask that prosecutors be barred from discussing the injuries Gray suffered after his arrest. They argue that none of the charges against Nero require “any showing of injury in order for the State to satisfy the elements of the offenses.”

Nero's attorneys made the arguments in a series of motions filed this week. His case is set to go to trial Feb. 22 in Baltimore Circuit Court.

Nero is charged with second-degree assault, misconduct in office and reckless endangerment — all misdemeanors.

Williams has barred defense attorneys and prosecutors from discussing the case with the media.

The new motions provide a glimpse into Nero's defense strategy and highlight how different the case against him is likely to be from the case against Officer William G. Porter.

Porter is the only officer to have stood trial to date of the six charged.

His trial in December on charges of involuntary manslaughter, second-degree assault, reckless endangerment and misconduct in office ended in a mistrial after a city jury deadlocked on all counts. He is scheduled to be retried in June.

During Porter's first trial, prosecutors focused on the stop-and-go, 45-minute transport of Gray in the back of a police van, where prosecutors allege Gray suffered the spinal cord injury.

In Nero's trial, they are expected to focus on Gray's arrest.

Police and witnesses have described the arresting officers using tactical maneuvers to restrain Gray. Cellphone video of the interaction showed Gray screaming in pain, and then his legs dangling beneath him as police took him to the van.

Prosecutors don't contend that Gray was injured during his arrest. But they have said Nero and the other officers lacked the probable cause they needed to stop Gray, and detained him before ever noticing the switchblade knife for which he was arrested.

In charging the officers, prosecutors initially suggested the knife was legal under state law. Police and attorneys for the officers have said the knife is illegal under the city code.

Prosecutors later changed their theory, suggesting the legality of the knife was moot because officers violated Gray's rights before they discovered the knife.

In describing the assault charge in June, prosecutors wrote that Nero had caused “offensive physical contact with and physical harm to” Gray, and that the contact “was the result of an intentional act” and “not legally justified in that the Defendant used force to place Mr. Gray under arrest without probable cause.”

Nero's attorneys have said Nero and his fellow officers were within their rights to pursue Gray after he fled unprovoked from officers in a known drug area targeted for drug enforcement, and that Gray was detained legally and arrested legally after officers found the knife.

krector@baltsun.com

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