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4th Circuit hears appeal of ruling denying Mosby immunity

(The Daily Record / Maximilian Franz)

Baltimore State’s Attorney Marilyn J. Mosby. (The Daily Record / Maximilian Franz)

A federal appeals court will determine if Baltimore State’s Attorney Marilyn J. Mosby is immune from a lawsuit by five police officers who claim she maliciously prosecuted them in the death of Freddie Gray.

Maryland Assistant Attorney General Karl Pothier told a three-judge panel of the 4th U.S. Circuit Court of Appeals on Wednesday that  Mosby has immunity as a prosecutor from suits brought by five of the six officers charged in connection with Gray’s arrest and death.

“A prosecutor’s protective cloak of absolute immunity is not so easily removed,” Pothier said.

Lawyers for the officers, however, contended that Mosby was acting as an investigator, not a prosecutor, and does not have immunity from suit.

Mosby claimed absolute immunity as a prosecutor acting in her role as an advocate for the government and qualified immunity for actions taken as an investigator, which protects her from liability for claims arising from conduct that does not violate a clearly-established right. Mosby also claimed public official immunity because she was acting in furtherance of her official duties without actual malice or gross negligence.

A trial court judge found Mosby was not absolutely immune and partially denied her motion to dismiss the lawsuits.

Three of the officers were acquitted at bench trials before the remaining criminal cases were dropped. Five filed suit in state and federal court last year, claiming violations of the Fourth Amendment as well as false arrest, false imprisonment, malicious prosecution, abuse of process, invasion of privacy, conspiracy and defamation. The cases were later consolidated in U.S. District Court in Baltimore.

Senior U.S. District Judge Marvin J. Garbis preserved defamation and malicious prosecution claims as well as Fourth Amendment claims, ruling in January that the officers made plausible claims there was no probable cause to arrest and prosecute them and that Mosby’s remarks at a press conference in May 2015 announcing the charges were defamatory.

Garbis also found the plaintiffs had refuted Mosby’s argument she was acting as a prosecutor during the relevant time period sufficiently to survive a motion to dismiss but emphasized that later evidence may show she is entitled to that immunity.

On Wednesday in Richmond, Virginia, 4th Circuit Judge J. Harvie Wilkinson III grilled the officers’ lawyers about why they should be allowed to sue Mosby for bringing criminal charges against them and holding a news conference to announce the charges.

“What we’re talking about here is muzzling prosecutors who have publicly expressed grounds for prosecuting police officers,” said Wilkinson, who repeatedly raised his voice while questioning the officers’ lawyers.

The 4th Circuit stayed proceedings in the trial court while Mosby filed an interlocutory appeal on the immunity issue. She argued she will suffer irreparable harm if she is required to participate in extensive and intrusive discovery.

The 4th Circuit did not indicate when it would rule.

The U.S. Department of Justice in September declined to bring federal civil rights charges against the six officers — three white and three black — meaning none would be held criminally responsible for Gray’s death. In recent weeks, the police van driver and the highest-ranking officer in Gray’s arrest also were cleared of any administrative wrongdoing by a police panel. Police Commissioner Kevin Davis subsequently decided to scrap a final trial board.

The consolidated appellate case is Edward Nero v. Marilyn Mosby, 17-1166.

The Associated Press contributed to this report.