Baltimore City State’s Attorney Marilyn J. Mosby is entitled to immunity from civil lawsuits brought by five of the police officers she charged in connection with the death of Freddie Gray, the 4th U.S. Circuit Court of Appeals held Monday in dismissing the cases.
“Perhaps to the Officers’ chagrin, they must accept that they are subject to the same laws as every other defendant who has been prosecuted and acquitted,” Chief Judge Roger Gregory wrote on behalf of a three-judge panel in overturning a lower-court ruling. “Those laws clearly bar the type of retaliatory suits that the Officers brought here.”
David Ellin, an attorney representing Lt. Brian Rice, said Monday he was disappointed in the ruling but always expected but predicted it was not over yet.
“I kind of saw this as a case that would end up at the Supreme Court,” said Ellin, a Reisterstown solo practitioner. “I think I may end up being proven correct.”
Ellin said he had not spoken with the attorneys representing the other officers as of Monday afternoon but expects they will discuss the appellate court’s opinion and discuss next steps.
Attorneys for the other plaintiffs – Sgt. Alicia White and Officers Edward Nero, Garrett Miller and William Porter – were not immediately available for comment.
“I support the court’s opinion,” Mosby said in a statement, “that the people of Baltimore elected me to deliver one standard of justice for all, and that using the legal system to reach a fair and just resolution to Gray’s death was not a political move, but rather it was my duty.”
The officers alleged 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, which were dropped by Mosby a year later after several officers were acquitted.
Their lawsuits were filed in 2016 and eventually consolidated in U.S. District Court, where Judge Marvin J. Garbis preserved defamation and malicious prosecution claims as well as Fourth Amendment claims after Mosby sought immunity.
But on appeal, the 4th Circuit found Mosby’s decision to bring charges “fall squarely under the umbrella of absolute immunity” because they were within her role as an advocate. The officers had argued Mosby was acting as an investigator and therefore not protected.
“To the extent the Officers ask us to create a new rule that participation in an investigation deprives a prosecutor’s subsequent acts of absolute immunity, we balk at the proposition,” Gregory wrote.
The appellate court said Monday the officers’ theory a prosecutor investigating police misconduct prior to filing charges no longer enjoys absolute immunity “torpedoes the fundamental premise” of that immunity, “ensuring a fair, impartial criminal justice system.”
The so-called “press conference torts” — defamation and false light claims based on Mosby’s statements when she announced the officers’ charges — are barred by the Maryland Tort Claims Act because she was a state employee acting within the scope of her public duties, the 4th Circuit held.
In a concurring opinion, Judge J. Harvie Wilkinson III stressed “the perils of appellees’ defamation claim” which he argued attempts to “dilute the protections of New York Times v. Sullivan,” the 1966 Supreme Court case which established a public official must prove actual malice to prevail in a libel suit.
“By advancing a theory of tort liability for explanations of official acts, the officers here strike at the very heart of the democratic dialogue,” Wilkinson wrote. “Courts must repel such attacks.”
Judge Pamela Harris also joined the majority opinion in the consolidated case, Edward Nero v. Marilyn Mosby, 17-1166.