EDWARD MICHAEL NERO v. MARILYN J. MOSBY
U.S. Court of Appeals for the Fourth Circuit, Gregory, May 7, 2018,
Prosecutor Immunity – Participating in a criminal investigation does not deprive a prosecutor of absolute immunity for a subsequent charging decision
Facts from the opinion:
On April 12, 2015, Freddie Gray was arrested for possession of a switchblade knife. Gray was placed inside of a transport wagon and, when the wagon arrived at the district after making more stops, Gray was found unconscious. Gray later died.
The Office of the State’s Attorney for Baltimore City, led by State’s Attorney Mosby, conducted an investigation into Gray’s death.
As a result of this investigation, the State’s Attorney’s Office had Major Cogen of the Baltimore City Sheriff’s Office file criminal charges against six Baltimore Police Department officers and supervisors.
In his application for Statement of Charges, Cogen wrote that “the blade of the knife was folded into the handle. The knife was not a switchblade knife and is lawful under Maryland law.” His application further stated that the officers failed to seatbelt Gray contrary to General Order, that no medical assistance was obtained for Gray in a reasonable time, and that insufficient efforts were taken to determine if Gray needed medical attention.
On the day charges were filed and approved by the Court Commissioner, State’s Attorney Mosby held a press conference where she announced that her office conducted its own investigation into the death of Gray and led it to believe there was probable cause. She then read the Statement of Probable Cause. At the end, she announced that “To the people of Baltimore and the demonstrators across America: I heard your call for ‘No justice, no peace.’ Your peace is sincerely needed as I work to deliver justice on behalf of this young man…”
The Grand Jury indicted, but each of the officers was either acquitted at trial or had their charges dismissed.
Five of the charged officers filed suit against State’s Attorney Mosby for a variety of claims including malicious prosecution.
After a hearing, the district court dismissed a number of claims but ruled that the three malicious-prosecution claims, the defamation claim, and the false-light claim could proceed to trial.
The district court held that, although Mosby was entitled to absolute immunity for her conduct before the grand jury, she was not entitled to absolute immunity for any of her actions prior to convening the grand jury. The district court further concluded that the Officers had pled sufficient facts to overcome Mosby’s qualified immunity and MTCA-immunity defenses to the malicious-prosecution claims at the motion-to-dismiss stage. And the district court determined that Mosby was not entitled to any conditional privileges for the defamation and false-light claims. The district court did not expressly address Mosby’s immunity defenses to these latter two claims.
Mosby appealed, arguing that she had absolute immunity from suit because she was acting in her role as an advocate for those remaining claims.
Held: The 4th Circuit agreed with Mosby, holding that, regardless of her motivation, her decisions were part of the “advocacy” function of a prosecutor.
The “1983 Suit”:
Civil Action for Deprivation of Rights – “1983” suit- A government official can be sued for depriving someone of their federal constitutional rights. This is commonly referred to as a “1983” suit since it comes from 42 USC 1983.
Immunity – 1983 Suit – Prosecutors have absolute immunity for actions taken as an “advocate” but only qualified immunity (same as a police officer) for “investigative” and “administrative” actions.
Immunity – Absolute Immunity is a complete bar to a lawsuit without looking at anything else. Qualified Immunity only bars a lawsuit if the official acted in good faith.
Absolute Immunity – 1983 Suit – Prosecutors – A prosecutor generally has absolute immunity for actions “intimately associated with the judicial phase of the criminal process.” These actions are those taken by the prosecutor as an “advocate.”
Absolute Immunity – 1983 Suit – Prosecutors – A prosecutor has absolute immunity for “advocate” actions such as: evaluating evidence assembled by the police, deciding to seek an arrest warrant, filing charging documents, participating in a probable cause hearing, and presenting evidence at trial.
Absolute Immunity – 1983 Suit – Prosecutors – A prosecutor’s immunity from suit for instructing a police officer to file charges is “absolutely immune regardless of its motivation.”
Absolute Immunity – 1983 Suit – Prosecutors – A prosecutor has absolute immunity for “selection of the particular facts to include in the certification” of probable cause, “her drafting of the certification, her determination that the evidence was sufficiently strong to justify a probable-cause finding, her decision to file charges, and her presentation of the information to the court.” A prosecutor also has absolute immunity for advising an officer that the facts were strong enough to apply for an arrest warrant.
From the Case: Even “assuming Mosby helped write the application here, both her characterization of the facts and her decision to provide some facts while omitting others,” including those that might cut against a finding of probable cause, fall within her “advocacy” role for which she has absolute immunity.
Qualified Immunity – 1983 Suit- Prosecutors – A prosecutor has only qualified immunity for actions that are not “intimately associated with the judicial phase of the criminal process.” These actions are those where the prosecutor is acting as an investigator or administrator.
Qualified Immunity – 1983 Suit- Prosecutors – A prosecutor has only qualified immunity for “investigative” or “administrative” actions such as: giving legal advice to police during an investigation, investigating a case before a probable cause determination, and personally vouching for the truth of a statement of probable cause.
From the Case: The Court noted an allegation by the officers that the State’s Attorney’s Office “manipulated evidence to facilitate the indictments,” that “Mosby created false facts and omitted material facts,” and that she “conducted a bogus and sham investigation.” While these might have gotten past her qualified immunity, the Court found that the officers did not provide any “specific supporting facts” for these allegations.
From the Case: In support of the immunity given to prosecutors, the Court wrote that “most jurisdictions, including Baltimore, charge prosecutors with independently investigating cases of criminal behavior by police.” Opening a prosecutor to liability for charging because she participated in the investigation “would effectively eliminate prosecutorial immunity in police-misconduct cases.”
From the Case: “Mosby’s absolute-immunity defense plainly defeats the Officers’ § 1983 claim. Holding otherwise would require us to rewrite the doctrine of absolute prosecutorial immunity. This we will not do.”
Note: For those wondering why a claim of “malicious prosecution” can’t be brought against a prosecutor, the claim of “malicious prosecution” comes from before there were public prosecutors. In the 1700s and into the 1800s, a private person was allowed to bring a criminal charge. “The availability of the malicious prosecution action has been curtailed with the growth of the office of the public prosecutor.” By the time the 1983 suit became available, public prosecutors generally had immunity from suits brought against them for improper charging.
Note: In one of the Supreme Court cases upon which this opinion is based, the Supreme Court noted that: “To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor’s immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” The Court noted, however, that the prosecutor is not protected from criminal charges or disbarment in the event that he/she commits misconduct.
Maryland Common Law and Maryland Declaration of Rights:
Prosecutor Immunity – “Absolute prosecutorial immunity is the same under federal law and Maryland law”
From the Case: Because the Officers’ § 1983 malicious-prosecution claim and their state malicious-prosecution claims rest on the same facts, “we also hold that Mosby is entitled to absolute prosecutorial immunity for the Officers’ state malicious-prosecution claims under Maryland common law.”
The Maryland Tort Claims Act (MTCA):
Immunity- The MTCA protects “State personnel” from suit unless their action:
(i) Is not within the scope of the public duties of the State personnel; or
(ii) Is made with malice or gross negligence
MTCA – State Personnel – State Personnel includes “a sheriff or deputy sheriff of a county or Baltimore City” as well as “a State’s Attorney of a county or Baltimore City, or an employee of an office of a State’s Attorney”
Scope of Employment- An individual operates within the “scope” of their duties when they perform work “of the same general nature as that authorized” or “incidental to the conduct authorized.”
Scope of Employment – The head of an executive agency acts “within the scope” of employment when “she shares with the public information about the agency’s activities to further the agency’s mandate”
From the Case: “Applying these principles here, Mosby’s press-conference statements clearly fell within the scope of her employment. As Baltimore City’s State’s Attorney, Mosby was elected by the people of Baltimore to lead the city’s State’s Attorney’s Office, a key agency in Maryland’s state government.” “At the press conference, Mosby informed the public that her Police Integrity Unit had conducted an investigation into Freddie Gray’s death, found probable cause to believe that the Officers had committed numerous crimes, and initiated criminal prosecutions against them… Mosby also called for peace in Baltimore as she prosecuted the Officers. Such an appeal to the public to comply with the law was certainly ‘incidental,’ if not directly related, to her role as the chief law enforcement officer in the city.”
From the Case: “That Mosby may gain some future career advantage for doing her job well does not take her actions outside the scope of her employment”
Malice – For MTCA purposes, malice is “conduct characterized by evil or wrongful motive, intent to injure, knowing and deliberate wrongdoing, ill-will or fraud.”
Malice – To establish malice, a plaintiff must show that the government official “intentionally performed an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff.”
From the Case: Nothing in the complaints even suggests that Mosby spoke at the press conference out of “hate” or “to deliberately and willfully injure” the Officers.
Gross Negligence – A government official commits gross negligence “only when he or she inflicts injury intentionally or is so utterly indifferent to the rights of others that he or she acts as if such rights did not exist.”
From the Case: “The only statements that the Officers challenge as tortious are those Mosby read from the application for Statement of Charges. Specifically, the Officers allege that Mosby intentionally included false facts and omitted material facts in the application such that when she read it to the public at the press conference, she knowingly publicized inaccurate and defamatory information about them.” With regard to this claim, the Court noted that, “according to the Officers, the knife was in fact illegal, Porter and White did not
observe that Mr. Gray was in any distress, and White called for medical assistance as soon as she learned Gray was unconscious.”
Gross Negligence – Gross negligence involves “reckless disregard for the truth or reckless disregard as to whether the omissions rendered the statements materially misleading”
From the Case: “The Officers’ mere disagreement with Mosby as to whether the knife found on Gray qualified as an illegal switchblade, or how to interpret the law, does not show that Mosby recklessly disregarded their rights.”
Note: While noting the “disagreement” regarding the initial arrest, the Fourth Circuit did not directly address the question of whether a prosecutor is required to look beyond his/her personal beliefs and consider whether an officer had probable cause to believe that a crime had occurred prior to charging that officer with false arrest or assault in the pursuit of that arrest.
Statement of Probable Cause – The affiant of a Statement of Probable Cause acts with reckless disregard when she “fails to inform the judicial officer of facts she knew would negate probable cause.”
Statement of Probable Cause – A Statement of Probable Cause is not “required to include every piece of exculpatory information.” So long as the application includes all material facts, it “need not also present the defendant’s defense.”
Practice Note: The question of whether or not a fact is “material” is going to be up to a judge to decide. While you do not have to include every fact that helps the defendant, you should include any facts that are significant enough that they could defeat a finding of probable cause. If there’s a question, you should probably include it.
From the case: “Here, because none of the omitted facts identified in the complaints is material, the Officers cannot show that Mosby acted with reckless disregard when she omitted them.”
From the Case: “In conclusion, none of the Officers’ claims can survive the motion-to-dismiss stage. That the Officers disagree with Mosby’s decision to prosecute—as most defendants do— or with the information in the application for Statement of Charges—which inherently contains defamatory information—does not entitle them to litigate their disagreement in court, and much less recover damages.”