After a decisive lower-court ruling in favor of Baltimore City State’s Attorney Marilyn J. Mosby, five of the officers charged in connection with the arrest and death of Freddie Gray are appealing their right to sue her to the Supreme Court.
Attorneys filed a petition for writ of certiorari Thursday, arguing the 4th U.S. Circuit Court of Appeals misapplied precedent in determining Mosby was immune from the officers’ lawsuits, which were filed in 2016 and eventually consolidated.
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. A U.S. District Court judge had preserved some claims in partially granting a motion to dismiss.
“(W)hen a prosecutor undertakes an investigation,” the petition to the high court states, “and then provides the results of that investigation to a law enforcement officer… for evaluation, the prosecutor acts not as a prosecutor, but as a person whose actions are indistinguishable from those of a law enforcement officer.”
Baltimore attorney Catherine Flynn is the attorney of record on the certiorari petition. She joined the case in July when the plaintiffs needed a member of the Supreme Court bar to represent them.
Flynn did not respond to requests for comment Friday.
The officers, in the underlying lawsuit, 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.
But the 4th Circuit panel held prosecutors enjoy absolute immunity from suit for actions taken in their role as advocates.
“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,” Chief Judge Roger L. Gregory. “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.”
The officers’ petition also claims Mosby’s advice to law enforcement about whether probable cause existed is not covered by absolute immunity and the 4th Circuit’s opinion conflicts with those in other circuits.
David Ellin, an attorney representing Lt. Brian Rice, said Friday he believes the Supreme Court will consider the case because it is unique compared to previous cases dealing with prosecutorial immunity.
”I do think ours is a bit different,” he said. “I don’t think anyone has quite the fact pattern we do.”
While acknowledging the unique circumstances could also be a reason for the high court not to take the case, Ellin said the court ultimately should want to see justice served.
“I certainly feel very passionate about this matter,” Ellin said. “I think that initially Judge (Marvin J.) Garbis made the current ruling. I think we should be able to have our day in court.”
The case is docketed at the Supreme Court as Edward Michael Nero et al. v. Marilyn Mosby.