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Freddie Gray officers appeal dismissal of lawsuit against sheriff’s office member

Two of the officers prosecuted for Freddie Gray’s arrest and death are appealing the dismissal of their lawsuit against the member of the Baltimore Sheriff’s Office that signed the application for charges against them.

Officers Edward Nero and Garrett Miller filed a notice of appeal Monday.

The 4th U.S. Circuit Court of Appeals ruled in May that Maj. Samuel Cogen’s co-defendant, Baltimore City State’s Attorney Marilyn J. Mosby, is immune from the five officers’ lawsuits, Cogen — who did not appeal the trial judge’s decision on immunity — renewed his motion to dismiss and argued the same logic used by the 4th Circuit applied to his case.

U.S. District Judge Catherine C. Blake agreed last month and dismissed the remaining claims against Cogen, finding the 4th Circuit’s decision “leaves little room for doubt that probable cause existed to bring charges against the Plaintiffs” and Cogen is entitled to qualified immunity.

The plaintiff officers are already planning to appeal the 4th Circuit’s ruling on Mosby’s immunity to the Supreme Court. Their petition is due Oct. 4.

The officers alleged Mosby and Cogen violated their constitutional rights by arresting them without probable cause and presenting false or misleading information in the process. They also claimed Mosby 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.

The lawsuits were filed in state and federal court and eventually consolidated in U.S. District Court. Mosby and Cogen moved for dismissal because they claimed immunity from lawsuits stemming from actions that were part of their jobs.

The trial judge dismissed the bulk of the claims but preserved defamation, malicious prosecution and Fourth Amendment causes of action.

The case was stayed after Mosby noted an interlocutory appeal and the 4th Circuit ruled the decisions to investigate and bring charges “fall squarely under the umbrella of absolute immunity” because they are within her role as an advocate.

“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. “Those laws clearly bar the type of retaliatory suits that the Officers brought here.”

The case is Edward Michael Nero et al. v. Marilyn Mosby et al., 1:16-cv-01288.

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