Freddie Gray case: Judge allows malicious prosecution lawsuit against Mosby to proceed

Federal judge allowing malicious prosecution lawsuit against Marilyn Mosby in Freddie Gray case to continue.

A federal judge is allowing key parts of a lawsuit against Baltimore State's Attorney Marilyn J. Mosby, brought by five of the six police officers charged in the death of Freddie Gray, to move forward.

U.S. District Judge Marvin J. Garbis ruled that claims including malicious prosecution, defamation, and invasion of privacy can move forward against Mosby and Assistant Sheriff Samuel Cogen, who wrote the statement of probable cause.

Mosby's attorneys had said she has absolute prosecutorial immunity from actions taken as a state's attorney. But Garbis noted that her office has said it conducted an independent investigation.

"Plaintiffs' malicious prosecution claims relate to her actions when functioning as an investigator and not as a prosecutor," Garbis wrote.

Other counts, such as false arrest, false imprisonment and abuse of process, were dismissed, as Garbis had signaled he would do at an October hearing. All claims against the state were also dismissed.

The Maryland attorney general's office, which is representing Mosby, declined to comment on the 65-page ruling, saying officials needed time to review it.

Three of the officers charged in the April 2015 arrest and death of Gray were found not guilty of all charges by a judge, and prosecutors dropped charges against the remaining three officers last July.

David Ellin, an attorney representing Lt. Brian Rice, said that barring a reversal on appeal, the ruling means the officers' attorneys will begin the discovery stage, which includes deposing Mosby and others involved in the investigation.

"We're looking forward to the depositions and learning about what really happened," Ellin said. "We think the discovery process will really allow us to flesh out many things."

Ellin said he expected that Mosby's attorneys will appeal. He said he wouldn't be surprised if the case reached the U.S. Supreme Court because of the questions it poses for prosecutors who take a more active role in investigations.

"The ramifications of this case are huge, and nationwide," Ellin said.

Gray, 25, suffered a broken spine while in police custody and died a week later. Mosby charged six officers involved in his arrest and transport with criminal counts including manslaughter and second-degree murder. The charges alleged the arresting officers had no grounds to detain Gray, and that the others ignored department rules requiring them to secure him with a seat belt in the police van and seek prompt medical attention.

Officers Garrett Miller, Edward Nero, and William Porter, Sgt. Alicia White and Rice have sued Mosby and Cogen in federal court, alleging they knowingly brought false charges.

Mosby and Cogen deny the allegations.

Officer Caesar Goodson, who was driving the arrest van in which the medical examiner's office said Gray suffered his injuries, did not join the lawsuit.

At this early stage in the proceedings, Garbis noted that he must view the allegations in the light most favorable to the plaintiffs. He said the plaintiffs' allegations provided enough support for the lawsuit to move to the next stage.

"Viewed in the light most favorable to the Plaintiffs, they present allegations that present a plausible claim that the defendants made false statements or omissions either knowingly or with reckless disregard of their truth or falsity," Garbis wrote.

Garbis said he was "not definitively deciding" that Mosby and Cogen would not still enjoy immunity. "Rather the court is determining that the existence of this affirmative defense 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 wrote.

The fact that prosecutors said they conducted an investigation that was independent from police also played a role in the criminal trials, with Circuit Judge Barry Williams ruling that they had to turn over documents that would normally be protected from the evidence discovery process.

The plaintiffs are arguing in the civil case that prosecutors overlooked key facts in pushing the criminal charges forward, such as omitting the city code when charging that the knife Gray was initially arrested for possessing was illegal under state law.

He also said that based on the officers' assertions, "no reasonable person could conclude that Plaintiffs failed to seat belt Gray due to gross or criminal negligence under the circumstances."

"Rather, as Plaintiffs allege, the [rule on using seat belts] was new, they needed to quickly move the wagon to avoid growing crowds, Gray was physically uncooperative making it hard to position him in the wagon, and they did not know Gray was hurt," Garbis wrote. "Plaintiffs have alleged facts adequate to present a plausible Fourth Amendment claim."

Cogen's attorneys said last fall that he did not have firsthand knowledge of the evidence in the case, and only looked at documents presented to him by Mosby's office. Mosby's attorneys say the material that ended up in the charging documents was Cogen's responsibility.

jfenton@baltsun.com

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