By Mike Hellgren

BALTIMORE (WJZ) — For the first time, attorneys for State’s Attorney Marilyn Mosby are responding to the lawsuit that five of the six officers charged in the arrest and death of Freddie Gray filed against her.

The officers allege Mosby filed charges against them for political motives, and defamed their character, causing mental and physical pain and suffering. The only officer not suing Mosby is van driver Caesar Goodson, Jr.

But Mosby, who is being represented by the Attorney General’s office, says the suit should be thrown out because of her job.

In a new filing, her legal team wrote, “A prosecutor’s decision to move forward with criminal charges is exactly the kind of conduct that is absolutely immune from a civil claim for damages in state or federal court.”

Legal analyst Adam Ruther says, whatever happens, the suit has been a thorn in Mosby’s side.

“Forgetting about the actual merits of these claims, Ms. Mosby is immune to these lawsuits from the very beginning. That is the argument the State is presenting,” said Ruther. “Even if this case is dismissed, it’s a hassle, it’s a difficulty.”

The officers claim Mosby defamed them in several statements she made during the initial press conference announcing the charges against them. Her lawyers argue she did little more than read the charging documents, and they believe the officers are fair game as public officials.

“The plaintiffs have to prove that Ms. Mosby acted with actual malice in making defamatory statements about these officers, and that’s an extremely high burden,” Ruther said.

Ultimately, it will be up to federal judge Marvin Garbis. He will decide whether or not to throw out the suit.

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  1. Public Interest Law Professor John Banzhaf says:

    Lawyers for Baltimore State’s Attorney Marilyn Mosby have filed a motion seeking dismissal of the civil law suits brought by five of the six police officers she charged with crimes related to the death of Freddie Gray, arguing that, as a prosecutor, she enjoys absolute immunity.

    However, there are well recognized exceptions to this prosecutorial immunity, argues public interest law professor John Banzhaf, whose analysis of a similar situation helped bring down Mike Nifong and his prosecution of Duke lacrosse player-students for rape.

    But, to best take advantage of these exceptions, the officers should probably amend their civil complaints to include counts of malicious prosecution and abuse of process. Remember that Nifong was sued (and driven into bankruptcy) by the defendants against whom he wrongly continued prosecutions. He was also disbarred.

    Mosby – who has called “Nifong in a Dress” – might well face the same fate, since, in addition to the civil suits, two formal disbarment complaints are now under investigation by Maryland’s Bar Counsel.

    Under a series of Supreme Court cases, prosecutors lose their absolute immunity if they step outside their limited role as prosecutors; e.g., if they take part in the investigation as well as the prosecution.

    Here, Mosby not only conducted her own investigation, but allegedly lied about a so-called independent investigation, allegedly obtained indictments by misrepresentation, and, according to the judge’s own findings, violated the constitutional rights of the defendants.

    For these, and for many other actions, she is stripped of her absolute immunity from civil suits, concludes Banzhaf, whose bar-disciplinary complaints and threatened complaints apparently helped pressure two Baltimore prosecutors into refusing to continue, thereby ending the string of prosecutions.

    In seeking dismissal of the civil claim for false imprisonment, Mosby argues that “probable cause” for the charges and for the arrest were validated by a District Court commissioner, by a grand jury, and by the trial judge who refused to dismiss the criminal cases.

    “It is undisputed that other persons and entities within the criminal justice system repeatedly found probable cause after the filing of the” charges, her attorneys wrote.

    But the civil claim of abuse of process focuses not on whether there was initially enough probable cause to validate the charges, but rather whether Mosby continued with the prosecutions after it became abundantly clear that she could not reasonable believe that all elements of the charges could still be proven, especially after the judge ruled that her legal theories had no validity, and that there was simply “no evidence” to prove many of the crucial facts.

    Like Nifong, who initially had sufficient probable cause to arrest and charge the students with rape, and who later saw the foundations of his case washed away from under him but nevertheless continued prosecuting, Mosby abused the legal process not so much by initially bringing the cases, but more so by refusing to dismiss them once it became clear to virtually every legal observer that she no longer had any viable cases. This is also, by itself, grounds for her disbarment.


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