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Law of Self Defense: Will US Supreme Court Allow Cops’ Suit Against Marilyn Mosby?

Law of Self Defense: Will US Supreme Court Allow Cops’ Suit Against Marilyn Mosby?

Baltimore officers suing Mosby petition US Supreme Court for certiorari

The Baltimore police officers who are suing State’s Attorney Marilyn Mosby for maliciously investigating and defaming them when she criminally charging them over the death of Freddie Gray while he was in police custody have appealed the 4th Circuit’s dismissal of their case to the US Supreme Court, according to the Baltimore Sun.

A copy of the officers’ petition for certiorari to the US Supreme Court is embedded at the bottom of this post. In addition, you can find my extensive coverage of the Freddie Gray cases over at Legal Insurrection by clicking here.

The Freddie Gray case isn’t technically a self-defense case, in that none of the officers raised the legal defense of self-defense in response to the criminal charges against them. Rather, their defense was that they simply used no unlawful force on Gray at all. As a result this case would not normally be the subject of coverage by Law of Self Defense.

This case is, however, akin to many high-profile self-defense cases in the news in recent years since it’s another example of very serious criminal charges, premised on a claimed unlawful use of force, in the absence of any actual evidence to support such charges.

Freddie Gray’s Arrest, Injury, and Death

So, let’s review the facts. On April 12, 2015, several Baltimore police officers participated in the arrest of small-time street-corner drug dealer Freddie Gray as part of a sweep of an open-air drug market in the city. Gray was arrested, placed in the back of a police van, transported for processing, and upon arrival was found with a serious neck injury. He died of that injury several days later.

Mosby Brings Criminal Charges Based on Her Own Investigation

Despite zero evidence of unlawful force upon Gray by the officers involved, and in particular no evidence that they had used any force against Gray’s neck, Maryland State’s Attorney for Baltimore Marilyn Mosby brought murder charges and other lesser charges against six of the officers. These charges were based on an “independent” investigation conducted by Mosby’s office, independent of the investigation already underway by the Baltimore PD.

At trial all of the officers were ultimately acquitted or the prosecution ended up dismissing charges against them. A departmental review afterwards also cleared all the officers of wrongdoing.

The officer’s suit alleges that Mosby 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.”

Cleared Officers Sue, Challenge Mosby’s Absolute Immunity

Several of the cleared officers then brought a lawsuit against Mosby for misconduct in the matter. Suing a prosecutor for their official actions is an uphill battle because prosecutors generally have absolute immunity from civil suit for their official actions. Here, however, the officers argue that Mosby engaged in actions outside of a prosecutor’s normal function, and therefore should not be entitled to absolute immunity for those extra-prosecutorial activities.

Claim: Mosby’s Investigation Outside Scope of Absolute Immunity

Specifically, the officers argue that Mosby engaged in investigatory activities traditionally assigned to police officers and detectives, to whom only qualified rather than absolute immunity is granted, and thus her alleged misconduct based on those investigational activities should at most be similarly entitled to only qualified immunity. If so, the officers face a substantially lower barrier to dragging Mosby into civil court.

District Court Allows Suit, but 4th Circuit Dismisses Based on Immunity

The officers had initially sued Mosby in Federal District Court, where Mosby’s assertion of her claim of absolute immunity in support of her motion to dismiss the case was rejected. Mosby then appealed that decision to the 4th Circuit, which reversed the District Court and dismissed the officer’s suit on the basis that Mosby’s conduct qualified for absolute immunity.

Officers Apply for Certiorari to US Supreme Court

This week, the officers have applied for certiorari on the matter to the US Supreme Court. (Certiorari is an order by which a higher court reviews a decision of a lower court.) In their motion the officers once again argue that their claims of misconduct by Mosby are grounded in her investigatory activities, not her prosecutorial activities, and that the 4th Circuit misapplied existing case law in dismissing their suit on the basis of absolute immunity.

Bad Prosecutors Could Use Some Adult Supervision

Relatively few cases are granted certiorari by the US Supreme Court, so the prospects for this matter being heard (including by our newest Associate Justice Brett Kavanaugh) are slim.

It would, however, be nice to see some adult supervision applied to check the abusive conduct demonstrated by a small minority of out-of-control prosecutors. Prosecutors do need a great deal of discretion in order to do their jobs, but no government official’s discretion should be without limits, and conduct beyond their official functions and duties would seem to fall outside the bounds of the protections they enjoy through such doctrines as absolute immunity.

And should Mosby in particular end up being the Court’s nail in this matter, it couldn’t happen to a nicer gal.

Here’s that petition for certiorari:


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Oh, please! Let it be granted! (But I highly doubt it. Sad face.)

    JusticeDelivered in reply to Anonamom. | October 10, 2018 at 6:31 pm

    Another person in the transport vehicle clearly stated that Freddie Gray was intentionally injuring himself. And it turned out that he had collected on at least one other ghetto lottery bid.
    His problem was that he overdid it. In the end he was just another dumb piece of crap. He should get the Darwin award.
    The rest of these schemers need to held accountable, they have no respect for rule of law. Even when educated, they still consistently break the law and embrace corruption.
    persecution of these police officers is one more example of these issues.

    MattMusson in reply to Anonamom. | October 11, 2018 at 9:37 am

    Affirming immunity means endorsing prosecution for purely political purposes. Rejecting it means making a lot of Democrats angry. So, my guess is the Court will Side Step this one faster than Bruce Derning in Best Little Whorehouse in Texas.

    But, we all know what the Founding Fathers would do.

Normally I would say that absolute immunity is absolutely impossible to overcome. But we have a newly minted United States Supreme Court Justice who fully understands the nature of false charges.

Ever notice how dems loves blacks as long as they don’t look too black?

    JusticeDelivered in reply to Anchovy. | October 10, 2018 at 6:53 pm

    Reality is that there is degree of blackness discrimination among blacks. Lighter skin blacks have higher social status, something which darker blacks resent. The truth is that lighter skin in blacks is generally related to something between a third and up to two thirds or so white linage.

    The Friendly Grizzly in reply to Anchovy. | October 11, 2018 at 3:02 pm

    Or, move next door.

Not an applicable comparison – kavanaugh was accused by the senate democrats. False accusations are a tort, not a criminal offense, (the senators also have immuity while on senate floor), but not prosecuted by the state.

The application of qualified immunity is also fact based, so the plaintiff has to show that the prosecution knew the evidence did not support the prosecution (clearly established law standard). I havent explored the 4CA opinion, but I would suspect the record at the trial court was not well developed which also greatly reduces the likelihood of cert grant.

Are there previous district or other circuit court decisions on this issue, or this the first time that a district attorney has had their absolute immunity challenged on the basis alleged in the officers’ lawsuit? That could affect the court’s decision whether to accept.

This does seem to be a case where the usual liberal-conservative divide might not apply, except that is is a consequence of the Freddie Gray case, which became highly politicized. Still…

    countrylaw in reply to civil truth. | October 11, 2018 at 9:26 am

    The Seventh Circuit Court of Appeals has some cases on prosecutorial immunity. Fields Wharrie and Kelly; and BUCKLEY v. FITZSIMMONS et al..

    These cases hold that acts outside a prosecutors normal duties, such as the act of investigating a crime are not covered by absolute immunity. But the Seventh Circuit is not the Fourth Circuit and they are entitled to different case law.

    BUCKLEY v. FITZSIMMONS et al. was later affirmed by the Supreme Court.

    If indeed the Supreme Court feels that BUCKLEY v. FITZSIMMONS et al. prevails the matter would likely be disposed of in a per-curium ruling.

We all need to be carefulo what we wish for vis a via immunity. Because you know that Ds and their antifa and other allies will file suit against every criminal charge.

Good question. Personally, I would absolutely allow this case, if i was on the Court. The problem with Mosby’s claim of absolute immunity is that it is ludicrous, for two reasons.

The first reason is because Mosby’s officer, under her direction, did the investigation upon which she based her charges. Traditionally, a prosecutor is granted immunity because he, or she, does not directly control the investigation, but relies upon another agency for that.

The second reason is because there was obvious prosecutorial misconduct involved in these cases. Mosby did not have sufficient evidence to even gain an indictment, let alone a conviction. And, as her office did the investigation upon which the charges were made, she should have known that.

This case should be allowed to proceed and Mosby can explain to a trier of fact exactly WHY she pursued charges which were virtually non existent.

    DaveGinOly in reply to Mac45. | October 11, 2018 at 12:25 am

    What she did created a conflict of interest. There are more “separations of power” and “checks and balances” than those we were taught in junior high school.

    “The first reason is because Mosby’s officer, under her direction, did the investigation upon which she based her charges.”

    It’s actually not at all clear that Mosby conducted any investigation whatever. It seems likely that she merely CLAIMED she conducted an independent investigation.

    Mosby initially claimed that her independent investigation was conducted by Baltimore City Deputy Sheriff, Major Samuel Cogen, and he was originally included as a defendant in the suit by the officers.

    When questioned about this purported independent investigation, however, Cogen denied any knowledge or participation. I note that Major Cogen is no longer a defendant in this suit.

    It seems not unlikely that Mosby simply fabricated the entire notion of an independent investigation, and then strong-armed Cogen into filing the charges she wanted, regardless of the facts.


      Well, if she did not conduct any investigation, then we have a clear-cut case of prosecutorial misconduct. It is pretty clear that Mosby fed the information to Cogan so that HE could proffer charges against the officers. Cogan said as much in deposition. And, it has come to light that Mosby allegedly had exculpatory evidence which she did not reveal. If both facts are true, what you have is a strong case that 1) Mosby was the lead investigator in the case and 2) that she withheld exculpatory evidence from the defendants. The first was the basis for the lower court’s ruling that absolute immunity did not apply. And, while the second point was not taken up in court, it would provide a solid basis for an assumption of prosecutorial misconduct which would invalidate an assumption of qualified immunity.

      In many jurisdictions, Mosby’s actions would be taken before a Grand Jury and it is likely that an indictment would be issued. However, this is as unlikely to happen in the Peoples Republic of Maryland as seeing a 20 year old virgin riding a unicorn in Baltimore.

G. de La Hoya | October 10, 2018 at 8:48 pm

Forgot about Mosby. Wasn’t she, at one time, quite the media darling and going to lofty places? 😉

    Not any more. After the stunt she pulled. she now’s radioactive. Nobody wants anywhere near the conniving [insert expletive here], best I am aware, for fear her taint would rub off on them.

Seems what happened to mike nifong would be the template to use here.

    Walker Evans in reply to CKYoung. | October 11, 2018 at 12:24 am

    I concur. These defamed officers should definitely put their “Dukes” up!

    (Sorry – couldn’t resist that one)

I haven’t read the brief yet, so I don’t know if they had argued this but they should.

One thing that I think can be reliably demonstrated is that Mosby benefited outside of her job. I think they could make a case that benefit makes her more then just a state actor.

Ohio Historian | October 11, 2018 at 7:32 am

Why not a criminal malfeasance of office charge instead of a standard suit? I thought that criminal malfeasance had no immunity.

Let us pray. She should join Mike Nifong in a list of disbarred former prosecutors who decided to use innocent men and women as a springboard to higher office.

Paul In Sweden | October 11, 2018 at 9:44 am

As I remember it, the police crackdown in Marilyn Mosby’s husband’s district where Freddie Gray was arrested was done to make her husband look good to his constituents for upcoming elections at Marilyn Mosby’s specific request

A police crackdown, in Balmer, surely you jest.

I miss the old “scandal of the day” atmosphere in mid-90’s Balmer. Old Billy-boy just empowered everyone to push it a bit further.

“No one is above the law!”

When a prosecutor goes outside the law, the prosecutor becomes an “outlaw” and no immunity should apply!

I was the last juror to be qualified to sit on the first trial of the accused police officers, December 2015. My number was way too high to actually serve on the jury, but looking back it gives me satisfaction that when the judge asked me my opinion of the prosecutor I said “I think she’s a disgrace to her profession” – he qualified me anyway!