The criminal cases brought by Marilyn Mosby in the Freddy Gray matter have all been dismissed. Not one was successful.
Now Mosby is in the dock. She is the defendant in a civil action brought by five of the six accused police officers. Casear Goodson, driver of the police van in which Gray was injured and the only defendant to be charged with homicide, did not join the case.
Yesterday, a federal judge rejected a motion to dismiss the case. Judge Marvin Garbis ruled that claims including malicious prosecution, defamation, and invasion of privacy can move forward against Mosby as well as Assistant Sheriff Samuel Cogen who wrote the statement of probable cause.
Mosby’s argument was that as a prosecutor, she has absolute immunity from actions taken as a state’s attorney. Normally, such an argument might have worked.
However, Mosby, by her admission (if not boast), conducted her own investigation of the Freddy Gray case. Thus, Judge Garbis found that “Plaintiffs’ malicious prosecution claims relate to her actions when functioning as an investigator and not as a prosecutor.”
Judge Garbis did not definitively rule out a defense based on prosecutorial immunity. Rather, he found that “the existence of this affirmative defense is not clear on the face of the complaint and a firm conclusion on the reasonableness of the probable cause determination requires greater factual development.”
Judge Garbis did dismiss the officers’ claims of false arrest, false imprisonment and abuse of process. However, Mosby remains in the dock. She can, of course, appeal Garbis’ decision, and the plaintiffs’ lawyers expect that she will.
Barring an appellate ruling that blocks them, plaintiffs will proceed with discovery. The discovery will include depositions of Mosby and others involved in the investigation of the officers.
It should all be very interesting.
The issue on the merits isn’t whether Mosby brought weak cases against the defendants, which she surely did. Rather, in essence, it is whether Mosby and/or her co-defendant made and/or based the prosecution on false statements or omissions, either knowingly or with reckless disregard of their truth or falsity.
Mosby’s rush to judgment against the six officers in an attempt to show protesters that “I heard your call for ‘no justice no peace'” certainly increased the likelihood that she would make and rely on false statements with reckless disregard of their truth or falsity.
Judge Garbis did not decide this issue. He simply found that plaintiffs’ allegations provide enough support for the lawsuit to proceed to discovery.