It couldn’t happen to a nicer person.

A Federal judge has ruled that Baltimore State Attorney Marilyn Mosby may be civilly sued for malicious prosecution by the police officers she targeted following the in-custody death of Freddie Gray, reports the Baltimore Sun.

Gray’s demise was followed by days of rioting, looting, and arson in the City of Baltimore.  While the riots were ongoing Prosecutor Mosby announced a wide array of charges against six Baltimore officers involved in Gray’s arrest, including charges as serious as murder, based largely on the flimsiest of evidence or no evidence whatever.

We covered the Freddie Gray cases extensively right here at Legal Insurrection.

Five of these six officers prosecuted by Mosby are in the process of suing her in Federal court (the exception is van driver Officer Goodson).  Although several of the claims they brought against her—including false arrest, false imprisonment and abuse of process—have been dismissed, the malicious prosecution claim remains.

The distinction between the dismissed claims and remaining claim appears to be the nature of Mosby’s role with regard to each.  As a prosecutor Mosby enjoys absolute immunity from civil suit for actions taken in the performance of her job.  In the case of the Freddie Gray case, however, Mosby engaged in activities that fall outside the scope of her role as a prosecutor.

Specifically, Mosby claimed to have conducted an investigation independent of and parallel to the investigation undertaken by law enforcement.  It was this extra-prosecutorial activity that apparently pierces her otherwise existing immunity from civil suit. As Federal Judge Marvin Garbis noted in his 65-page ruling, “Plaintiffs’ malicious prosecution claims relate to her actions when functioning as an investigator and not as a prosecutor.”

Notably, Judge Garbis stated that he may later re-consider whether prosecutorial immunity might apply even to this last remaining claim of malicious prosecution.  At the present time, however, Judge Garbis believes that the claim has a sufficient basis to warrant further discovery and “greater factual development.”

Judge Garbis’ ruling opens the door for full-out discovery in this case, including the deposition under oath of Prosecutor Mosby and personnel from her office involved in the independent investigation of the officers.

Of the six officers criminally charged by Mosby, the first resulted in a hung jury and the next two resulted in bench acquittals.  At that point the charges were dropped against the remaining officers.


Andrew F. Branca is an attorney and the author of The Law of Self Defense, 3rd Edition, and a host on The Outdoor Channel’s TV show, The Best Defense.


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