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Freddie Gray: Cops Go On Offensive, Sue Prosecutor Mosby

Freddie Gray: Cops Go On Offensive, Sue Prosecutor Mosby

Sergeant Alicia White and Officer WIlliam Porter sue Mosby for defamation, invasion of privacy

It looks like at least two of the Freddie Gray defendants have decided to go on the offensive.

According to reporting by the Baltimore Sun, Sergeant Alicia White and Officer William Porter have each filed suit against State’s Attorney Marilyn Mosby for defamation and invasion of privacy.  Also named in the suit is Major Sam Cogen with the Baltimore Sheriff’s Office and the State of Maryland itself.

The Baltimore Sun report notes:

Mosby, who announced the charges one day after receiving the official police investigation into the incident, said that she had conducted her own independent investigation with the help of the sheriff’s office. Cogen signed and filed the initial charging documents in the case, outlining the state’s probable cause.

Attorneys for the officers have expressed skepticism about that investigation, saying evidence submitted to them through discovery provided little proof that any such investigation occurred.

Both White and Porter are charged with involuntary manslaughter (punishable by up to 10 years in prison), second-degree assault (10 years), reckless endangerment (5 years), and misconduct in office (indeterminate sentence).

White Porter

The suit was apparently filed on May 2.  The delay in it being made public may be a result of the attorneys for White and Porter requesting that the suit be sealed, to avoid any impression that they are seeking to violate the gag order put in place by Judge Barry Williams, who is overseeing the Freddie Gray trials.  This motion has been denied by another judge.  Attorneys for the officers explained that they could no longer delay filing this civil suit because of statute of limitations concerns.

The suit alleges that Mosby and Cogen made false statements against the officers in the course of filing charges against them, and that “[t]hese among other statements were made not for the purpose of prosecuting crimes that had allegedly been committed by White and Porter, but rather for purposes of quelling the riots in Baltimore.”

Civil attorneys interviewed by the Baltimore Sun were skeptical that the civil suit was likely to succeed. The sun quotes civil attorney A. Dwight Pettit as noting that prosecutors enjoy broad immunity from civil suit for conduct undertaken in the course of their official duties, “unless you can show some sort of malicious intent, which is a very steep burden.  … [The officers] would have to prove that they were frivolous and without substance and that she knew the charges could not stand, and none of that has developed.”

Despite the attorneys for the officers protestations to the contrary, one cannot help but wonder if the filing of the civil suit is, in fact, a strategy to get around the gag order imposed by Judge Barry Williams.  In the absent of the suit being sealed, which has already been denied, all filings in the civil suit will be public record.

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Ok. The big question for now is what is meant by “malicious”?

Remember in libel law it does not mean what you think it would mean–with hurtful intent. Closer is something like–wanton disregard for the facts.

    Bruce Hayden in reply to RodFC. | May 26, 2016 at 10:02 am

    Some of the charges appear to be in wanton disregard of the facts. The position all along by the police is that the charge against Grey was for violating a Baltimore city knife ordinance. This is the of fence that he was initially charged with, as is obvious from the arrest paperwork filed maybe a week before his death. False arrest and most everything else, up to when Grey was put in the van revolves around this. From the first, Mosby has been claiming the arrest was not justified based on the knife not violating MD law. Ignoring that this is irrelevant, and presumably knowing so, still maintaining the charges despite knowing this, I think rises to the level of legally malicious intent.

casualobserver | May 26, 2016 at 9:49 am

I fully expect the media to twist and turn to find the “racism” angle on this. Perhaps one of the officers’ attorneys is white and can be assigned an evil and coercive trait that led to this.

As we have moved from 2009 to 2016, that “root cause” for opposition to Obama is being claimed more routinely. So why stop at this level?

I doubt that either of these two causes has any legs. Malice in this context would include actual intent to do wrong to someone; not stupid or careless, not for the wrong reasons (i.e., to pour oil on troubled waters), and not even for political purposes.

It’s a very high bar, especially here where Mosby has the obvious defense of just being a lousy lawyer.

    Bruce Hayden in reply to Ragspierre. | May 26, 2016 at 10:11 am

    As I point out above, her legal claims of illegal arrest, false imprisonment, assault, mostly depend on ignoring that Grey was charged for violating a Baltimore ordinance, and not the MD law she kept citing. She either never read the arrest report (that we have all seen here), or ignored it. It was her legal duty to know this sort of thing. If she had dismissed charges after this being brought to her attention, she would have been fine – everyone is human and makes mistakes. But the charges remain, and her people are planning to try the five remaining officers despite that knowledge on her part.

    Milhouse in reply to Ragspierre. | May 26, 2016 at 11:26 am

    That’s why they’re alleging that her claim to have conducted an independent investigation was a lie. That would be a conscious wrong, done with the intent of harming the plaintiffs. That it was done in order to calm the rioters rather than out of actual ill-will to the plaintiffs, i.e. they were collateral damage, shouldn’t be relevant; the “actual malice” standard doesn’t mean hatred, it means conscious or reckless disregard of the facts, which would be the case here. She knew she was harming them, and didn’t care.

    David Jay in reply to Ragspierre. | May 26, 2016 at 11:45 am


    Rick in reply to Ragspierre. | May 26, 2016 at 3:48 pm

    I have some of this wrong:
    Many months ago some of us got into a spirited debate about the admissibility in the policemen’s criminal trials of evidence of prosecutorial misconduct. I did not pay sufficient attention to the evidence offered in the first two trials, so I don’t know if any such evidence was offered, and if so, whether it was admitted.
    In any event, it seems that evidence of the misconduct we were arguing about may be admissible to support the claims made in the subject lawsuits.

      Ragspierre in reply to Rick. | May 26, 2016 at 4:19 pm

      It certainly COULD, and it might change the calculus of civil claims entirely.

      Obviously, it would depend on the nature of the evidence. For instance, “pressuring the ME to change from ‘accident’ to ‘homicide'” could range from “How sure are you of your conclusion?” to “If you want to keep your job, you have to conclude ‘homicide'”. And points in between.

legacyrepublican | May 26, 2016 at 9:53 am

Could the lawsuit be being used as an instrument of dropping the charges?

    stevewhitemd in reply to legacyrepublican. | May 26, 2016 at 10:21 am

    I was wondering about that. First trial is a hung jury, second trial is an acquittal. Mosby can’t be too happy right now. Her chances for obtaining a guilty verdict against any of the remaining officers are very slim. But if she just drops the charges she’ll take some serious blowback from some parts of the “community”.

    So what to do? Ah yes, a settlement! She had to, you know, it was a trade, now it’s all over, sorry, “community” but the lawyers told us we had no choice.

    I could see that play out in the next couple of months.

    Bruce Hayden in reply to legacyrepublican. | May 26, 2016 at 10:25 am

    Initially, I thought No. Timing is very different between criminal and civil cases. And, indeed, one of the things that you find in civil litigation is that your long awaited civil trial may be again preempt end by criminal cases being tried by the same judge. In CO, you are supposed to have criminal trials within maybe 90 days (and hence the preemption), while you may wit a year or two or three for a jury trial in a civil matter.

    But then, I realized that at some point, the judge is going to probably dismiss a lot of charges based on the point I made above about Grey having been charged under the Baltimore ordinance, and not MD law. At that point, Mosby, et al, will probably be collaterally estoppel from claiming that the arrest was illegal. That makes the job of proving actual legal malice that much easier.

    That said, I don’t think that Mosby and her crew are that smart, and are trying these cases for short term political advantage. I think that deep down, they know that they are going to lose most, if not all of their cases. And yet, they persist. If ultimately getting sanctioned for the political use of the judicial system doesn’t deter them, I don’t think civil liability years down the road will either.

      Criminal trials within 90 days? Be still my beating heart!!!

      Here in El Paso, the Court system is so over-loaded that we’re lucky if we get to trial in a YEAR. One of the Misdemeanor Courts here is setting cases in October/November of 2017 for initial trial settings, and in that Court, you never go on your first setting, which means you get reset another 8 to 12 months out, and you might not go then.

      If the defendant is incarcerated, that usually pushes them to the front of the pile, but as an example, I had a “specially set” (for the 3rd time) trial on an Assault Family Violence case that had been sitting around for 16 months already, and another attorney tried to bump my setting by the fact that her client had already been sitting in jail for 12 months waiting for trial, and couldn’t be released because there was a Parole hold waiting for the current charge to be resolved before Parole would decided to violate him or not.

    Ragspierre in reply to legacyrepublican. | May 26, 2016 at 10:58 am

    It could.

    It could also cement everyone into a posture of defending their actions.

    I suspect these causes are so weak, they won’t do either. I believe they were pled (if the story is correct) as place-holders in a “plead it or lose it” civil procedural setting in light of the reported statues of limitation.

Could this lawsuit be an opportunity for conservative justice warriors to deal justice to the racist persecuted Mosby?

Mosby is using the law to play in a political arena. I suspect that these two officers are doing the same to move out on offense rather than be pinned down on defense. I think it is brilliant move.

The politics have been completely under Mosby’s control so far. Not anymore. Act II (political trials) now starts even though Act I (criminal trials) is not over. There’s gonna be a fight.

Americans united through common oppression. That sounds vaguely familiar.

The sun quotes civil attorney A. Dwight Pettit as noting that prosecutors enjoy broad immunity from civil suit for conduct undertaken in the course of their official duties, “unless you can show some sort of malicious intent, which is a very steep burden. … [The officers] would have to prove that they were frivolous and without substance and that she knew the charges could not stand, and none of that has developed.”

What does he mean “none of that has developed”? Has he not been following the news? What facts have emerged to sustain any of her charges?

    Ragspierre in reply to Milhouse. | May 26, 2016 at 12:32 pm

    “[The officers] would have to prove that they were frivolous and without substance and that she knew the charges could not stand, and none of that has developed.”

    Nope. Taking the civil cause defense side, it would be hard to prove the charges were “frivolous” and without substance.

    We know from judge Williams’ rulings that two of three elements for each charge were met (typically). No question.

    AND we know that…while it is true that some of the state’s legal positions on the remaining elements of the charges was “novel”…there has been no finding showing them to be “frivolous”. As you know, a good-faith pleading intended to change or expand the law is not, per force, “frivolous”.

    (This does not suggest I have any respect for the state’s positions, as I think I’ve made clear several times.)

    The killer here is “and she knew the charges could not stand”. Again, the first obvious defense is that she’s such a lousy lawyer she had no such knowledge.

    Or, “you can’t be malicious if you’re too stupid/ignorant to understand what you’re doing”.

      Gremlin1974 in reply to Ragspierre. | May 26, 2016 at 1:21 pm

      I am wondering if there is a certain piece of evidence that the defense wants in the public eye and this is just the vehicle for that cause?

      Like maybe someone screwed up and they have an initial coroners report that initially called grays death an accident, which would confirm the rumor that the coroner was pressured to change it to homicide.

      Milhouse in reply to Ragspierre. | May 27, 2016 at 1:03 am

      We know from judge Williams’ rulings that two of three elements for each charge were met (typically). No question.

      Well, yeah, but those were the trivial elements. Along the lines of (1) the defendant is over the age of 18 (2) who took (3) something that didn’t belong to him. If (1) and (3) are undisputed but (2) isn’t, the crime isn’t 67% established, it’s 0% established.

      The killer here is “and she knew the charges could not stand”. Again, the first obvious defense is that she’s such a lousy lawyer she had no such knowledge.

      Generally the standard in such matters is “knew or ought to have known”. For instance if the new seat belt policy had been in place for months or years, was announced at roll call, and the prosecution could show that 90% of cops knew about it and scrupulously kept it, it wouldn’t be a major flaw that it couldn’t prove Nero specifically knew about it.

    Char Char Binks in reply to Milhouse. | May 26, 2016 at 12:35 pm

    It seems like hand-waving to me.

May that smug bozo be as tormented and humiliated and for as long as any of the people she abused.

Disgraced, except to the left.

G. de La Hoya | May 26, 2016 at 1:04 pm

I don’t believe that I have ever seen a more obvious case of a prosecutor playing into the hands of the vigilantes, but I’m just an ignorant hayseed.

I think a civil rights suit would be ideal. The alleged torts were conducted under the color of the Mayor’s official duties. Alas, the Civil Rights Division at DOJ is poorly suited.

Gremlin1974 | May 26, 2016 at 1:59 pm

BTW, how is Mosby’s husband’s campaign for the Mayor’s office going, anyone know?

inspectorudy | May 26, 2016 at 7:02 pm

These suits won’t fly! Years ago I was conned by a home contractor doing a home remodeling for me. It required a steel “I” beam and the contractor required me to pay for it up front since it was a special order. I fell for it and when he never showed up again I called the city attorney to see what my chances were on going to court. He said it was all based on intent. If the contractor was just a “Bad” business man then I could not get any relief. Only if he knew ahead of time that he was going to defraud me and that was all he had planned to do, then I could take him to court. It is a brutal requirement that has a bar so high that it can almost never be overcome. Only if there is written evidence or a witness who heard the person say they were going to screw you can you meet the burden of proof.

    Sorry to tell you, but you got bad legal advice.

    –Andrew, @LawSelfDefense

    Ragspierre in reply to inspectorudy. | May 26, 2016 at 8:05 pm

    It sounds like the city guy was speaking about a criminal case.

    There are several causes of action I would plead in that civil case, depending on more facts as to which. Breach of contract for sure, and fraud definitely. I MAY not be able to prove up the fraud, but I’d still plead it and ask for punitive damages. It centers the mind of the defendant beautifully, and fosters a settlement.

    The trouble is, most broke-dick contractors who pull that kind of crap are not good for a judgment, depending on where you were.

    If you were in Texas, you most definitely got bad legal advice. Also if in Texas, the Prosecutor was a MORON.

    On the Civil side: the Texas Deceptive Trade Practices Act does not ~require~ “intent.” It’s effectively a strict liability statute. Did you do “X?” If yes; violation, pay up. If you did “X” “knowingly” then you can get 3x economic damages, and mental anguish damages. If you did “X” AND you “knowingly” and “intentionally” did “X” at that point you get 3x mental anguish damages in addition to your 3x Economic Damages.

    But, as Rags noted above, the Contractor may be “judgment proof” (i.e. they’ve got a phone to their name, and that’s it). If you’re in a medium to major municipality, the contractor is ~probably~ required to have a “construction bond,” but that may only have a 10K limit.

    On the CRIMINAL side, the Criminal portion of the DTPA ALSO does not ~require~ intent (intentionally, knowingly, recklessly or with criminal negligence) under Texas Penal Code 32.42(b). Criminal Negligence only requires that the actor “ought” to have been aware of the substantial risk of the outcome of his conduct, because the mythical “ordinary person” standing in the actor’s shoes would have been aware of the substantial risk of that outcome.

    When dealing with a contractor requesting payment for a special item “up front”, just make the check payable to the vendor.

    And never deal with an unlicensed contractor. You will have a better, though not a perfect chance to recover for malfeasance. If the individual or company has a license, you at least have the weight of a state government agency to put some pressure on him.

Shouldn’t there be a taxpayer’s law suit seeking to force the officials responsible for a multi-million dollar settlement personally liable?

    You would think that, but it actually doesn’t work that way.

    The “prosecutorial immunity” enjoyed would shield them on one side, and the requirement of a “particularized grievance” would shield them on the other (requirement that an individual injury is particularized, and not of a “general” nature, which a taxpayer suit would most definitely be a “generalized injury.”

    The remedy is a political one: when Mosby comes up for re-election, FIRE her. When each and every member of the city council comes up for election, FIRE THEM. That’s the remedy.