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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