Baltimore City State’s Attorney Marilyn Mosby is asking a federal appellate court to recognize one or several kinds of immunity afforded to her as a prosecutor, which would prevent five of the six officers charged in connection with the death of Freddie Gray from pursuing their lawsuits against her.
Mosby filed her opening brief in the 4th U.S. Circuit Court of Appeals Tuesday and expanded on arguments rejected by a trial judge in January. The officers’ lawsuits, filed more than one year ago, have been placed on hold while the immunity issue is appealed.
Lt. Brian Rice, Sgt. Alicia White and Officers Edward Nero, Garrett Miller and William Porter allege Mosby “rushed to judgment” and sought charges to calm citizens rather than because probable cause existed. Senior U.S. District Judge Marvin J. Garbis preserved most of the officers’ claims following a motion to dismiss by Mosby and co-defendant Major Samuel Cogen of the Baltimore City Sheriff’s Office.
Porter’s case ended in a mistrial when a jury could not reach a verdict, and Rice and Nero were acquitted after bench trials in front of Baltimore City Circuit Judge Barry Williams. Officer Caesar Goodson, who has not filed a lawsuit, was also acquitted after a bench trial.
For the claims of unlawful arrest and malicious prosecution, Mosby has argued she is absolutely immune from suit because the claims arise from actions she took in her role as prosecutor. The immunity extends beyond initiating a prosecution and presenting the state’s case to preliminary actions like evaluating the evidence and preparing the case.
“The relevant alleged acts and omissions contained in plaintiffs’ complaints relate squarely to Ms. Mosby’s role as an advocate, because they involve her assessment and evaluation of evidence and drawing of legal conclusions in deciding whether to prosecute the plaintiffs,” Tuesday’s filing states.
Garbis rejected this argument because he found the officers sufficiently argued Mosby was not acting as a prosecutor throughout the relevant time period.
Mosby also alleges the officers’ state law claims of wrongful arrest, malicious prosecution, defamation and invasion of privacy are barred by statutory immunity because the plaintiffs did not allege facts to show Mosby acted with malice or gross negligence. The immunity arises from the Maryland Local Government Tort Claims Act, which protects state personnel from suit for actions in the scope of their public duties.
The officers also allege Mosby deprived them of their rights under the Fourth Amendment, but she argues her qualified privilege because filing criminal charging documents does not violate a clearly established right.
The officers were arrested pursuant to warrants, and they have not shown that Mosby made false statements, whether deliberately or recklessly, to obtain the warrants, according to the filing.
The plaintiffs’ response in the appeal is due July 13.
The consolidated appellate case is Edward Nero v. Marilyn Mosby, 17-1166.