Freddie Gray officers’ malicious-prosecution suit moves forward

January 24, 2017

Baltimore City State's Attorney Marilyn Mosby (C) leaves the courthouse after the first day of pretrial motions for six police officers charged in connection with the death of Freddie Gray in Baltimore, Maryland, U.S. on September 2, 2015. Baltimore's top prosecutor on July 27, 2016 dropped remaining charges against police officers tied to the death of black detainee Freddie Gray, after failing four times to secure convictions in a case that inflamed the U.S. debate on race and justice. REUTERS/Bryan Woolston/File Photo

Baltimore City State’s Attorney Marilyn Mosby (C)

Five Baltimore police officers cleared of criminal wrongdoing in connection with the death of Freddie Gray may proceed with some of their claims against state officials arising from the officers’ arrests and prosecutions.

U.S. District Judge Marvin J. Garbis of the District of Maryland found that questions of fact precluded dismissal of three claims in the suits against State’s Attorney Marilyn Mosby and Maj. Samuel Cogen of the Baltimore City Sheriff’s Office.

The officers’ claims of malicious prosecution, defamation and invasion of privacy survived the defendants’ motion to dismiss all three suits.

The judge said the complaints’ allegations that officials lacked probable cause to arrest and prosecute them were sufficient to support the malicious-prosecution claims.

However, the judge dismissed claims for false arrest and imprisonment and civil conspiracy against Mosby and Cogen, as well as federal constitutional claims against the state.

The officers say the defendants prepared a misleading application for statement of charges.

They also claim that Mosby defamed them by making false statements at a press conference and allege under 42 U.S.C.A. §1983 that their arrests and detentions violated their Fourth Amendment rights.

In their motion to dismiss, Mosby and Cogen argued the officers could not prove they were arrested and charged without probable cause.

The defendants also asserted they were immune from the suits for their official actions.

Criminal charges against officers

According to Judge Garbis’ opinion, Baltimore police officers arrested Freddie Gray, a 25-year-old man, on April 12, 2015, and transported him to the police station, making four stops along the way.

Gray, who needed medical care upon his arrival at the station, died from a spinal cord injury one week later, the opinion said.

The police transport vehicle’s driver, Caesar Goodson, and five other involved officers, Edward Nero, Garrett Miller, Brian Rice, Alicia White and William Porter, were subsequently arrested and charged in connection with Gray’s death.

According to the opinion, Porter was tried by a judge and jury that failed to agree on a unanimous verdict, and Nero and Rice were acquitted following a non-jury trial. Mosby dropped all charges against the others.

Alleged facts support the claims

According to Judge Garbis, the complaints sufficiently alleged Mosby improperly advised Cogen that probable cause existed for the officers’ arrests, and that both defendants created a false and misleading application for statement of charges to support the malicious-prosecution claims.

The judge also refused to grant the defendants’ motion to dismiss the defamation and invasion of privacy claims. He found the officers plausibly alleged facts that Mosby’s public statements during a press conference on Gray’s arrest and the “working relationships” between police and prosecutors were made with knowledge or reckless disregard that they were false.

Mosby claimed her public statements — particularly her reading of the application for statement of charges — were protected by the fair-reporting privilege, which protects reports and restatements of legal proceedings.

But the plantiffs plausibly claimed that an exception to the privilege applies to Mosby’s statements, Judge Garbis said. The “self-reported statement exception” applies to cases in which the reporter of the defamatory information also created it.

Because Mosby was involved in the investigation of the officers and co-wrote the application she quoted at the press conference, the fair-reporting privilege does not protect Mosby and the defamation and invasion of privacy claims survive the motion to dismiss, the judge said.


Judge Garbis also rejected Mosby’s argument that she was shielded by absolute prosecutorial immunity.

In Section 1983 cases, “a state prosecutor is entitled to absolute immunity in taking actions pursuit to her functional role as an advocate for the state,” the judge said, citing Buckley v. Fitzsimmons, 509 S.Ct. 259 (1993).

It was unclear from the facts, however, whether Mosby was acting as a prosecutor or investigator when she provided legal advice to Cogen, the judge said.

The judge also refused to dismiss the § 1983 claims based on qualified immunity.

The defense of qualified immunity “is not clear on the face of the complaint and a firm conclusion on the reasonableness of the probable cause determination requires greater factual development,” he said.

Nero et al. v. Mosby et al., No. 16-cv-2663, 16-cv-1288, 16-cv-1304, 2017 WL 68643 (D. Md. Jan. 6, 2017).