Mosby again outlines argument that she is immune to civil lawsuit by officers in Freddie Gray case

Baltimore State's Attorney Marilyn J. Mosby again outlined her argument, this time in a full brief to the 4th U.S. Circuit Court of Appeals filed Tuesday, that her role as a prosecutor shields her from the malicious prosecution lawsuit brought against her by five of the six Baltimore Police officers in the Freddie Gray case.

In doing so, she and her attorneys in the office of Maryland Attorney General Brian E. Frosh expanded on arguments already made — and rejected — in a lower federal court.

In the new appellate filing this week, they argued that multiple types of prosecutorial immunity apply in the civil case, and that the attempt by the officers to sue Mosby in the lower court should be blocked. They say her actions — leading an independent investigation into the officers' actions during Gray's 2015 arrest, announcing those charges before a bank of cameras — were within her rights and duties as a prosecutor, and are therefore protected.

The actions in question, they argued, "relate squarely to Ms. Mosby's role as an advocate, because they involve her assessment and evaluation of evidence and drawing of legal conclusions in deciding whether to prosecute" the officers.

Lt. Brian Rice, Sgt. Alicia White, and Officers Garrett Miller, Edward Nero and William Porter sued Mosby and Assistant Sheriff Samuel Cogen in April 2016, alleging Mosby and Cogen had filed false charges against them. Cogen filled out the statement of probable cause charging the officers in Gray's case.

Gray, 25, was arrested in West Baltimore in April 2015 and suffered fatal spinal cord injuries while in police custody in the back of a police van, according to Mosby's office. Gray's death was followed by widespread protests, and a night of rioting, looting and arson. The six officers, including Officer Caesar Goodson Jr., who is not party to the civil case against Mosby, were then charged by Mosby's office with a range of criminal offenses in Gray's arrest and death — from misconduct in office to manslaughter to second-degree murder.

All pleaded not guilty. None was convicted.

U.S. District Judge Marvin Garbis ordered in March that key parts of the officers' lawsuit against Mosby could move forward, including claims of malicious prosecution, defamation and invasion of privacy. That opened the door for the discovery and depositions to begin.

To block that from occurring, Mosby appealed Garbis' decision, again on the grounds that she is immune from such lawsuits. In May, the appeals court ordered a stay of the district court proceedings until Mosby's appeal on the issue of immunity could be decided. It gave Mosby until this week to file an opening brief, which she did Tuesday.

In the new filing, Mosby's attorneys argue that Garbis misapplied the law, and that Mosby is protected by absolute or qualified immunity.

For example, the officers have alleged that, at multiple points, Mosby was acting as an investigator rather than a prosecutor, and as such is not immune from being sued. They cited claims from Mosby that her office had conducted an independent investigation into the actions of the officers, separate from police.

In the new filing, Mosby's attorneys argue that the "purpose of her office's investigation was to determine whether to charge the plaintiffs with crimes, a prosecutorial function for which she enjoys absolute immunity."

Rice and Nero were acquitted by a judge in bench trials last year, as was Officer Caesar Goodson, the sixth charged officer in the Gray case. In July, Mosby dropped the remaining charges against Miller, Porter and White.

A reply to Mosby's brief from the officers' attorneys is due July 13.

krector@baltsun.com

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