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Freddie Gray officers must pierce Mosby’s immunity for civil suits to continue

From left, Officer Edward Nero, Sgt. Alicia White, Lt. Brian Rice and Officers Garrett Miller and William Porter have filed civil lawsuits against Baltimore City State’s Attorney Marilyn J. Mosby seeking unspecified damages for false arrest and defamation, among other counts. Mosby on Thursday will ask a federal judge to dismiss the claims, arguing she cannot be held civilly liable for any actions she takes as a prosecutor. (Photo illustration by Maximilian Franz/The Daily Record)

From left, Officer Edward Nero, Sgt. Alicia White, Lt. Brian Rice and Officers Garrett Miller and William Porter have filed civil lawsuits against Baltimore City State’s Attorney Marilyn J. Mosby seeking unspecified damages for false arrest and defamation, among other counts. Mosby on Thursday will ask a federal judge to dismiss the claims, arguing she cannot be held civilly liable for any actions she takes as a prosecutor. (Photo illustration by Maximilian Franz/The Daily Record)

The Baltimore police officers involved in Freddie Gray’s arrest and transport who are now suing the city’s top prosecutor have aired a litany of grievances about the way the criminal cases against them were conducted.

But before they can have their day in civil court, they must prove Baltimore City State’s Attorney Marilyn J. Mosby can be held liable in the first place.

Mosby has cited the privileges and immunities afforded to her as a prosecutor as a defense to the officers’ claims. In other words, she cannot be sued for doing her job.

A hearing on motions to dismiss filed by Mosby and Maj. Samuel Cogen, the member of the Sheriff’s Office who signed the application for the statement of charges against the six officers, is set for Thursday morning in front of U.S. District Judge Marvin J. Garbis. The focus of the parties’ filings with the court thus far has been a debate of what, if any, immunity applies.

“This is one of those rare cases where the intersection of law and public policy is central and under a microscope,” said Jacob S. Frenkel, a Washington lawyer who has litigated privileges and immunities issues.

The lawsuits were filed in April and May in both state and federal court by Lt. Brian Rice, Sgt. Alicia White and Officers Edward Nero, Garrett Miller and William Porter. They were later consolidated for procedural purposes in U.S. District Court. Officer Caesar Goodson has not made any public filings to date. The officers are seeking unspecified damages for defamation, false arrest, false imprisonment and violations of the state and federal constitutions.

Absolute protection

Mosby has claimed absolute immunity, which is when a prosecutor is acting in her role as an advocate for the government by initiating prosecution and presenting the state’s case regardless of any bad faith or violations of the law, according to cases cited in the parties’ filings.

Chad Curlett, a Baltimore attorney who has litigated lawsuits against officers and prosecutors where immunity defenses were raised, says the absolute immunity enjoyed by a prosecutor is very broad and widely accepted by courts. Baltimore City State’s Attorney Marilyn J. Mosby has raised the argument in seeking to dismiss civil lawsuits brought by five officers charged in connection with the death of Freddie Gray. ‘I think Ms. Mosby can take comfort in that argument and is likely to be successful,’ he says.

Chad Curlett, a Baltimore attorney who has litigated lawsuits against officers and prosecutors where immunity defenses were raised, says the absolute immunity enjoyed by a prosecutor is very broad and widely accepted by courts. (File photo)

“The absolute immunity enjoyed by a prosecutor is very broad and very hard to penetrate,” said Chad Curlett, a Baltimore attorney who has litigated lawsuits against officers and prosecutors where immunity defenses were raised. “It’s a very broad protection and courts have gone to great lengths to explore the policy considerations.”

The purpose of absolute immunity is to allow prosecutors to do their jobs freely without fear of being dragged into civil court by everyone they charge.

“I think Ms. Mosby can take comfort in that argument and is likely to be successful,” said Curlett, of Levin & Curlett LLC in Baltimore.

But Mosby is not entitled to absolute immunity when she and her office were acting as investigators, which she explicitly stated was her role when she announced the charges in a May 2015 press conference.

“What’s so interesting in this case is… Ms. Mosby went to great lengths to declare publicly that her office was conducting its own independent investigation separate and apart from the investigation that was being undertaken by the police,” Curlett said.

By making that claim, he continued, Mosby may have exposed herself for actions taken prior to the initiation of the prosecutions. For those actions, she will only have qualified immunity, which protects an official from liability for claims only arising from conduct that does not violate a clearly established right.

Mosby argues it would not have been obvious to her that filing criminal charges and announcing them publicly would violate a clearly established right because it “fits squarely within the ordinary functions and responsibilities of a prosecutor.” Quoting a 2003 case, Mosby’s motion to dismiss states qualified immunity “protects all but the plainly incompetent or those who knowingly violate the law.”

But the officers argue in part prosecutors made material factual omissions to the grand jury as well as false statements, so the later indictment of the plaintiffs does not prove probable cause existed.

Access denied

Warren S. Alperstein, a former prosecutor who followed the criminal trials, said it’s “problematic” for the state to argue the grand jury indictment shows probable cause “if it is proven that prosecutors presented misleading evidence at these critical stages of the prosecution.”

The officers and their attorneys have not been granted access to transcripts from the grand jury despite requests during the criminal proceedings after one of the lead police investigators raised concerns about how the process was conducted.

Baltimore City Circuit Judge Barry Williams reviewed the transcripts and found no indication of improper behavior.

Mosby also claims she has public official immunity because she was acting in furtherance of her official duties without actual malice or gross negligence, according to filings. The plaintiffs counter that the misleading statements in the application for the statement of charges “reflect a conscious disregard for the Plaintiffs’ rights and an improper motive.”

Curlett said the plaintiffs’ arguments were weakened once a charging decision was made. That decision precedes the grand jury presentation and, by then, Mosby was acting as a prosecutor. Courts have held the appropriate remedy for prosecutors for misconduct before a grand jury is a referral to bar counsel, not civil liability.

The Attorney Grievance Commission neither confirms nor denies the existence of investigations nor comments on ongoing investigations.

Defamation defense

Mosby has also claimed the fair reporting privilege for her statements at the War Memorial Building announcing the charges. According to her motion, Mosby was making comments on a matter of legitimate public interest.

Moreover, Mosby alleges the plaintiffs did not point to a specific false statement in what she said. The plaintiffs, in court filings, refer to her claim that the arrest of Gray was illegal. The officers also point to Mosby’s saying, “I have heard your calls for ‘No justice, no peace,’ however your peace is sincerely needed as I work to deliver justice on behalf of Freddie Gray,” as evidence of a political motive for filing the charges.

Criminal defense attorneys for the officers last year pointed to Mosby’s statements as a reason the indictments should be dismissed because they prejudiced the potential jury pool. Williams called Mosby’s words “troubling” but found they did not violate the officers’ right to fair trials.

Alperstein, of Alperstein & Diener P.A. in Baltimore, said the scrutiny of Mosby’s press conference is why prosecutors frequently speak in generalities when making public statements about ongoing cases.

“This should be a lesson to all prosecutors,” he said. “You have to be very careful in the comments you publicly make, particularly in a high-profile case, about the alleged actions of individuals. The more a prosecutor says, the more they risk being accused of defaming a defendant and when a defendant is acquitted, or their case is dismissed. It only legitimizes a potential plaintiff’s claim.”


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