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4th Circuit affirms Mosby’s right to fire prosecutor who backed opponent

‘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)

Baltimore City State’s Attorney Marilyn J. Mosby was within her rights to fire a prosecutor who had campaigned for her opponent in the 2014 election, a federal appellate panel held Tuesday.

The 4th U.S. Circuit Court of Appeals unanimously affirmed the dismissal of a lawsuit brought by Keri L. Borzilleri, finding “(to) hold otherwise would undermine the public mandate bestowed upon the victor of a hard-fought election and would needlessly interfere with a state official’s managerial prerogative.”

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

Mosby, in seeking to dismiss the lawsuit, said an elected prosecutor may demand loyalty and a shared vision from her assistant state’s attorneys, who serve as policymakers and her “alter ego.”

Senior U.S. District Judge J. Frederick Motz ruled last year Borzilleri’s asserted free-speech right to support Mosby’s predecessor was trumped by Mosby’s right to assemble a team of prosecutors she could rely on to carry out her policies.

On appeal, Borzilleri said Motz erred in his application of the balancing test for the free speech of government employees because she was not a policymaker from whom Mosby could demand absolute loyalty.

But Judge J. Harvie Wilkinson III, writing for the unanimous three-judge panel, determined “Borzilleri’s complaint leaves no room for doubt” that assistant state’s attorneys are policymakers because they “make discretionary decision of real consequence.” Assistant prosecutors oversee investigations, prosecute crimes and negotiate plea deals, and there is room for political disagreement in how to prioritize resources, Wilkinson wrote.

The responsibilities of line attorneys “are laden with ideological intent” and “far from ministerial,” Wilkinson added. Borzilleri was one of three “community prosecutors” who prosecuted complex crimes and served as a liaison between the office, community and police, which directly implemented policies, according to the opinion.

It was proper for Mosby, the panel concluded, to determine if she had confidence in her assistants to implement her policies and reasonable to suspect those who served in the prior regime may resist change.

Borzilleri’s firing also did not unconstitutionally burden her free speech because of the strong interest in maintaining harmony between an elected prosecutor and policymaking subordinates, Wilkinson wrote.

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

Borzilleri worked as a city prosecutor for nearly a decade and tried “hundreds of cases,” including “some of Baltimore’s most violent and serious crimes,” according to her complaint. She moved on to the Prince George’s County state’s attorney’s office and is now with the Federal Emergency Management Agency.

Her complaint alleged her termination was was one of several such retaliatory firings of prosecutors, all of which have diminished the quality of state’s attorney’s office.

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