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Freddie Gray officers have until October to petition for Supreme Court review

Five of the officers arrested in connection with the death of Freddie Gray will have until October to ask the Supreme Court to consider whether Baltimore City State’s Attorney Marilyn J. Mosby is immune from the civil lawsuits they filed against her in 2016.

The 4th U.S. Circuit Court of Appeals held in May the officers could not pursue any of their claims against Mosby because she is protected by absolute and qualified immunity for actions taken within the scope of her role as prosecutor.

The deadline to petition for review in the Supreme Court was Sunday, but a request for an extension was granted July 31, giving the officers until Oct. 4 to file. The extension was requested because none of the attorneys representing the plaintiffs are members of the Supreme Court bar and they spent considerable time looking for someone to take the case at that level, according to court filings.

Catherine Flynn, a Baltimore attorney who represented Officer Garrett Miller in criminal proceedings stemming from Gray’s death, recently agreed to represent the petitioners, according to the extension request.

The lawsuits, filed in state and federal court then eventually consolidated in U.S. District Court in Baltimore, alleged Mosby violated the officers’ constitutional rights by arresting them without probable cause and presenting false or misleading information in the process. They also claimed she defamed them in statements made at a May 2015 press conference announcing the charges, which Mosby dropped a year later after several officers were acquitted.

The three-judge appellate panel found Mosby’s decision to bring charges falls under the umbrella of absolute prosecutorial immunity and the defamation claims were barred by the Maryland Tort Claims Act because she was a state employee acting within the scope of her employment.

“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 in overturning a lower-court ruling. “Those laws clearly bar the type of retaliatory suits that the Officers brought here.”

The case is Edward Michael Nero et al. v. Marilyn J. Mosby, No. 18A101.

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