Federal appeals court puts lawsuit against Marilyn Mosby on hold

A federal appellate court has put on hold a lawsuit against Baltimore State's Attorney Marilyn Mosby brought by five of the officers charged in the arrest and death of Freddie Gray, pending the outcome of her appeal of the case.

The officers sued Mosby in April 2016 for malicious prosecution, and a federal district judge had ordered that discovery and depositions should go forward as Mosby appealed the suit.

On Friday the 4th U.S. Circuit Court of Appeals ordered a stay of the district court proceedings until Mosby's appeal has been decided.

Mosby, who is being represented by the Maryland attorney general's Office, is arguing that as a prosecutor she has immunity from civil claims. Her attorneys said she has a "strong likelihood of success on appeal" and shouldn't have to go through the discovery process.

"The public ... has a substantial interest in having Ms. Mosby's immunity assertions resolved as efficiently, expeditiously, and fairly as possible, which is served by her unfettered presentation of those defenses to the appellate court," Assistant Attorney General Karl A. Pothier wrote in a March motion.

Lt. Brian Rice, Sgt. Alicia White, and Officers Garrett Miller, Edward Nero and William Porter have sued Mosby and Assistant Sheriff Samuel Cogen, alleging they brought false charges, which Mosby and Cogen deny. Cogen filled out the statement of probable cause charging the officers.

Rice and Nero were acquitted by a judge in bench trials last year, along with Officer Caesar Goodson, who is not part of the lawsuit. In July, Mosby dropped the remaining charges against Miller, Porter and White.

U.S. District Judge Marvin Garbis allowed key parts of the lawsuit to move forward, including claims of malicious prosecution, defamation and invasion of privacy.

Garbis said Mosby does not enjoy immunity in the case because her office acted as independent investigators and not simply prosecutors.

Mosby's opening brief to the appellate court judges is due June 13, with a response from the officers' attorneys due July 13. The court said a reply to that response could be filed 14 days after the response brief is submitted.

Pothier wrote that while Mosby said at a May 1, 2015, news conference that her office had conducted an independent investigation, the officers' claims relate to her evaluation of evidence and not any investigative work.

"The relevant alleged acts and omissions relate to the assessment and evaluation of evidence and the drawing of legal conclusions, which necessarily involve the exercise of professional judgment of the prosecutor as advocate," Pothier wrote.

Mosby's attorneys note that a grand jury also found probable cause for the charges, and that the trial judge, Barry Williams, rejected attempts during the trials to have the charges dismissed.

"A public official may be liable only when he or she transgresses a bright line," Pothier wrote.

The case is the second involving Mosby that will be argued before the 4th Circuit. Also pending is an appeal by Keri Borzilleri, a former assistant state's attorney who argued she was wrongly fired because she supported Mosby's opponent in the 2014 election. A federal judge dismissed the lawsuit, saying prosecutors are "at-will" employees and can be fired for having a different viewpoint. Borzilleri now works as a special assistant U.S. attorney.

The court hears arguments from September through May.

jfenton@baltsun.com

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