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Fired Baltimore prosecutor appeals dismissal of free-speech claim against Mosby

‘She walked on the edge, but I am going to give her the benefit of the doubt,’ one criminal defense lawyer says of Baltimore City State’s Attorney Marilyn J. Mosby, seen at a press conference earlier this month, pursuing charges against six police officers in connection with the death of Freddie Gray. But another lawyer says Officer Edward Nero’s acquittal shows Mosby ‘is a prosecutor who is bent on promoting herself rather than the city.’ (Maximilian Franz/The Daily Record)

Baltimore City State’s Attorney Marilyn J. Mosby (Maximilian Franz/The Daily Record)

A former prosecutor has appealed a federal judge’s dismissal of her lawsuit alleging Baltimore City State’s Attorney Marilyn J. Mosby violated her constitutional rights by firing her for having backed Mosby’s political rival and predecessor, Gregg L. Bernstein.

In papers filed Tuesday with the 4th U.S. Circuit Court of Appeals, Keri L. Borzilleri claims she had a First Amendment, free-speech right to support Bernstein’s re-election without fear of retribution. Mosby’s subsequent firing of Borzilleri, just days after taking office Jan. 5, 2015, violated Section 1983 of the 1871 Civil Rights Act, which prohibits state officials from violating an individual’s constitutional rights, the appeal states.

The dismissal of Borzilleri’s lawsuit “stands in tension with the most basic tenets of our democratic society, namely that all citizens, even those who are employed by the government, retain the right to speak and participate in our political process,” Borzilleri’s lead attorney, Stacey K. Grigsby, wrote in the appeal.

In dismissing the lawsuit in May, Senior U.S. District Judge J. Frederick Motz sided with Mosby in concluding that Borzilleri’s asserted free-speech right was trumped by Mosby’s right to have assistants on whose loyalty and support she could rely in carrying out her policies.

“Furthermore, Borzilleri’s exercise of prosecutorial discretion as a line prosecutor would have had a direct impact on Mosby’s performance as state’s attorney,” added Motz in his written opinion. “Even routine decisions, such as which crimes to charge or what plea deal to offer, would reflect on the performance of the entire [state’s attorney’s office] and would carry with them potential political consequences. One improvident choice or misstep – like a poorly thought-out trial strategy – could seriously affect the public’s perception of Mosby’s performance and hinder her ability to implement her agenda.”

Appealing Motz’ dismissal, Grigsby argued Borzilleri is a career prosecutor uninvolved in the formulation of the state’s attorney’s policy but duty bound to carry it out in the interest of achieving justice. Thus, Borzilleri’s constitutionally protected support for political candidates — even those who opposed Mosby — is not relevant to her duties as assistant state’s attorney, Grigsby wrote.

“Under the district court’s logic, any incoming politically elected or appointed prosecutor could, consistent with the First Amendment, immediately fire any career attorney simply because they belonged to a different political party or supported a disfavored political candidate,” Grigsby wrote in the appeal to the 4th Circuit. “Sanctioning the politicization of prosecutors’ offices at the line attorney level could have profound – and dangerous — implications for the integrity of the nation’s criminal justice system.”

Grigsby was joined on the appeal by co-counsel Ryan Y. Park and Nafees Syed, all from the law firm Boies, Schiller & Flexner LLP in Washington and New York.

‘Adequate justification’

Borzilleri’s lawsuit, filed Dec. 9, states she “did not hide her support for Mr. Bernstein during his unsuccessful re-election campaign” in 2014, as she hosted a meet-and-greet at her home she publicized with emails touting his accomplishments. Borzilleri also placed a Bernstein campaign sign in front of her home and attended a Baltimore campaign event at which she spoke with prospective voters.

Though Mosby defeated Bernstein in the Democratic primary, Borzilleri said she had no fear for her job of nine years until Jan. 8, 2015, when an aide to Mosby allegedly asked her about her past support for Bernstein, which Borzilleri acknowledged, according to the complaint.

The next day, Borzilleri said she was called into a conference room where she was told of her termination – effective immediately – and escorted by an armed officer while she collected her belongings and left the building.

Mosby, in court filings asking Motz to dismiss the lawsuit, told the district court that she had “adequate justification” to fire her.

The city’s elected chief prosecutor may demand loyalty and a shared vision from her assistant state’s attorneys, who serve as policymakers and her “alter ego,” Mosby stated. Toward that end, a state’s attorney may fire assistants who showed allegiance and preference to the policies and vision of her vanquished opponent, Mosby added.

Mosby is represented by lawyers from the state attorney general’s office.

The appeal pending before the 4th Circuit is Keri L. Borzilleri v. Marilyn J. Mosby, No. 16-1751.