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4th Circuit to hear fired Baltimore prosecutor’s appeal

A former prosecutor who was fired by Baltimore City State’s Attorney Marilyn J. Mosby after backing Mosby’s election opponent will have her case heard by the 4th U.S. Circuit Court of Appeals on Thursday.

A federal judge dismissed Keri L. Borzilleri’s lawsuit last year, concluding that Borzilleri’s asserted free-speech right to support Mosby’s predecessor, Gregg L. Bernstein, was trumped by Mosby’s right to assemble a team of prosecutors she could rely on to carry out her policies.

Borzilleri claimed she had a First Amendment right to support Bernstein’s reelection without fear of retribution but was fired five days after Mosby took office in January 2015. In her appeal, Borzilleri contends she never attacked Mosby but rather supported the sitting state’s attorney and, once Bernstein lost, expressed her desire to serve under Mosby.

“There is therefore no evidence that Ms. Borzilleri was ever ‘disloyal’ to Ms. Mosby,” she stated in a brief last year.

But even if she was disloyal, Borzilleri argues Senior U.S. District Judge J. Frederick Motz erred in his application of the balancing test because a line attorney is not a policymaking employee from whom an elected prosecutor can demand absolute loyalty.

Motz determined Borzilleri’s “exercise of prosecutorial discretion as a line prosecutor would have had a direct impact on Mosby’s performance as state’s attorney.”

Borzilleri, on appeal, counters a prosecutor “is not more or less likely to practice law in a particular manner because of her personal support, during a primary, for one Democratic candidate instead of another.”

An assistant prosecutor who disagrees with a policy must still adhere to it, though they could undermine it in practice, she added in court filings. But the same risk applies to any government position and does not necessarily indicate that the person is a policymaker, according to court filings.

In a brief filed last week, Mosby asserted that assistant state’s attorneys are policymaking employees because they have “significant discretion” in performing their duties and can create policies through their decisions, comparing them to a deputy sheriffs, a position previously held to be a policy-making one.

“In essence, whenever an Assistant State’s Attorney steps into a courtroom to represent the State, he or she is exercising the powers of, and serving as a proxy for, the elected State’s Attorney,” the brief states.

Motz also held that Mosby is entitled to qualified immunity, which Borzilleri argues was incorrect because the complaint plausibly alleged that Mosby violated a clearly established First Amendment right.

Borzilleri is represented by Stacey K. Grigsby, Ryan Park and Nafees Syed of Boies, Schiller & Flexner LLP in Washington D.C.

The case is Keri L. Borzilleri v. Marilyn J. Mosby, No. 16-1751.

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