A federal judge asked lawyers on both sides of a civil suit brought by officers charged in connection with the death of Freddie Gray against Baltimore City State’s Attorney Marilyn J. Mosby to “address some difficult questions” Thursday as he weighed whether to dismiss the case.
Senior U.S. District Judge Marvin J. Garbis did not rule after three hours of arguments, acknowledging “the significance of the case” and the “possible appellate rights whichever way I go.”
Garbis did not indicate when he would release his written opinion.
The officers allege Mosby violated their constitutional rights by arresting them without probable cause and presenting false or misleading information in the process. They also claim she defamed them in statements made at a May 2015 press conference announcing the charges.
But Garbis asked attorneys for Lt. Brian Rice, Sgt. Alicia White and Officers Edward Nero, Garrett Miller and William Porter to point to the information Mosby presented to Baltimore City Sheriff Maj. Samuel Cogen when seeking charges — and then repeated at her press conference — that was false and caused the arrest warrant to be issued.
Andrew J. Toland III of Mallon & McCool LLC in Baltimore, representing Nero and Miller, told Garbis that both Mosby and Cogen, who signed the application for statement of charges, were aware of more facts than were included in the application and intentionally presented a misleading picture to the District Court commissioner who signed off. (Cogen is also named as a defendant in the officers’ lawsuits.)
Mosby had an improper motive in seeking charges outside of simply seeking justice: she wanted to quell the riots in the city and keep the peace, added Tony Garcia, an attorney for White and Porter.
“I think you see that in the” press conference, said Garcia, of Bates & Garcia LLC in Baltimore.
Garcia quoted Mosby saying, “I have heard your calls for no justice, no peace” as evidence of her motive for charging the officers.
Attorneys for Mosby and Cogen, in response, pointed to the complex factual issues that required trials to flesh out and could not have been resolved at the early stage of applying for charges.
Assistant Attorney General Karl A. Pothier, representing Mosby, countered the “trigger point” for a malicious prosecution claim should be the initiation of proceedings against the party alleging their rights were violated.
“That’s the only common sense thing I can think of,” he said.
The court should then evaluate the existence of probable cause at the time the prosecution commenced, according to Pothier.
Mosby has also claimed the fair reporting privilege to the officers’ defamation allegations, saying she was merely reading the statement of charges to the public. She did not attend Thursday’s hearing.
A portion of the hearing was dedicated to parsing out when Mosby acted as an investigator and when she became a prosecutor advocating for the state, the latter role triggering her absolute immunity for actions taken to do her job no matter the intent or harm caused.
If Mosby was acting as an investigator, the parties agree she is entitled to qualified immunity, which she loses if she violated a clearly established right.
“This is the problem when somebody tries to wear two hats and then goes and states [publicly] that it was her investigation,” Garbis said.
Pothier said conveying information for use in applying for charges was an inherently prosecutorial act covered by absolute immunity regardless of any misstatements.
Garbis spent time focused on the knife Freddie Gray possessed at the time of his arrest and whether it violated city code, which contradicts the allegation in the statement of charges that it was legal, as well as whether Mosby’s determination that it was legal constituted a legal conclusion protected by absolute immunity from civil suit.
Pothier declined to answer Garbis’ inquiry into as to whether it can now be if Gray’s knife were legal.
“You don’t want to answer,” Garbis said. “That’s fine, your silence speaks volumes.”
Garbis also questioned whether probable cause could have existed even with false statements in the record or for one charge but not all, which Toland admitted was possible. The plaintiffs’ attorneys have maintained no probable cause was present for any charges.
Attorneys for Cogen asserted that he was presented the results of the prosecutor’s investigation and was reasonable to rely on it in seeking charges.
At the close of the hearing, Cogen’s lawyer, Jason Robert Foltin of the city’s Law Department, said the arguments presented showed Mosby was the investigator, not his client.
“It’s become apparently clear that there are not facial allegations against Mr. Cogen,” Foltin said.