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Judge tosses Mosby lawsuit, says prosecutors can be fired for political reasons

A federal judge tossed a lawsuit against Marilyn Mosby, saying prosecutors can be fired for political reasons

A U.S. District Court judge has dismissed a federal lawsuit against Baltimore State's Attorney Marilyn Mosby, saying prosecutors can be fired for political reasons.

The lawsuit was brought in December by former Assistant State's Attorney Keri Borzilleri, who alleged she was wrongly fired by Mosby because she had supported her opponent, former State's Attorney Gregg Bernstein.

Though prosecutors are "at-will" employees, Borzilleri argued that she had an "exemplary record" and was exercising her rights.

U.S. District Judge J. Frederick Motz dismissed Borzilleri's lawsuit this week. In a 19-page opinion, Motz sided with attorneys for Mosby who said prosecutors are representatives of the state's attorney and can be fired for having a different viewpoint.

"Borzilleri occupied a position for which political affiliation was an appropriate requirement," Motz wrote. "Accordingly, Mosby, as a newly elected official, was within her rights to terminate Borzilleri to ensure decisive and faithful implementation of her policies."

Mosby's office declined to comment, but has previously called the lawsuit "frivolous" and has declined to comment on personnel moves.

Borzilleri's attorney, Stacey Grigsby, said she and her client were disappointed that the court sided with Mosby's "extreme position."

"The court's ruling chills the political expression of all career government employees, who now risk losing their jobs by supporting a political candidate or cause that is disfavored by an elected official under whom they serve," Grigsby said. "The First Amendment demands much more."

Motz dismissed the first three counts, which included First Amendment retaliation for expressive speech and violation of protections against termination based on political affiliation. He also dismissed two other counts — a violation of free expression and abusive discharge — but suggested they could go forward in state courts.

Grigsby said she was reviewing whether to appeal Motz's ruling or file the state law claims in Circuit Court.

Borzilleri was a Baltimore prosecutor for 10 years, and was hired by the Prince George's County State's Attorney's Office. Her lawsuit claimed that her firing came amid a wave of departures in the Mosby administration that upended cases and could be contributing to a spike in violent crime.

She claimed six attorneys were fired soon after Mosby took over, and dozens more had left. Those numbers did not include top Bernstein officials who left on their own, and departures of line prosecutors have continued in the months that followed.

Borzilleri's attorney maintained it was illegal to fire people for reasons such as race, gender, or political views.

Motz said assistant state's attorneys are "crucial to the efficacy of the office of their boss and play a 'special role' in shaping their agenda."

"Borzilleri's exercise of prosecutorial discretion as a line prosecutor would have had a direct impact on Mosby's performance as State's Attorney," Motz wrote. "Even routine decisions, such as which crimes to charge or what plea deal to offer, would reflect on the performance of the entire SAO and would carry with them potential political consequences."

"One improvident choice or misstep … could seriously affect the public's perception of Mosby's performance and hinder her ability to implement her agenda," he said, agreeing with Mosby's attorneys from the Attorney General's Office that prosecutors are "alter egos" of their boss.

Borzilleri claimed that the First Amendment protected "career government employees from being fired during a political transition by a state official merely because of their support for the incoming state official's political rivals." Motz said she failed to show that line prosecutors are analogous to government employees.

Borzilleri worked as one of three "community prosecutors," serving as a liaison between the state's attorney's office and the community and police. In that role, she also worked with the Operation Ceasefire program. She hosted a "meet and greet" for Bernstein and said she was asked by Mosby's staff about that support the day before she was fired without explanation.

Cristie Cole, a research analyst, sent an office-wide email after she was fired in which she also said she was fired for supporting Bernstein. Bernstein's ex-wife, Terry Schafer, was also terminated.

Other Bernstein supporters continue to work in the office. And Mosby's top hire, Chief Deputy Michael Schatzow, who is trying the Freddie Gray cases, contributed nearly $4,000 to Bernstein's campaign.

jfenton@baltsun.com

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