Baltimore Cops to Sue Prosecutor Mosby For Malicious Prosecution

WASHINGTON - June 7, 2016 - PRLog -- Two of the Baltimore police officers charged with crimes as a result of the death in police custody of Freddie Gray will reportedly be bringing civil suits against Baltimore State's Attorney Marilyn Mosby, and Maj. Sam Cogen of the Baltimore Sheriff's office, for malicious prosecution, false arrest, false imprisonment, and violation of the Maryland declaration of rights, article 24 and 26.

        The officers may also bring a separate federal action for deprivation of their constitutional or federal statutory rights under 42 USC 1983, generally known as the civil rights statute.

        Ordinarily, prosecutors enjoy legal immunity from such law suits, but they may lose that immunity if they step outside their narrow role of acting as prosecutors and making strictly prosecutorial decisions, says public interest law professor John Banzhaf who teaches this concept.

        Banzhaf made the same legal argument regarding a law suit against Durham County, NC, District Attorney Michael Nifong for his wrongful prosecution of several Duke students for an alleged rape.  Shortly after the arguments were widely reported in the media, Nifong dropped the charges.

        In the famous prosecutorial misconduct case called Imbler v. Pachtman, the Supreme Court distinguished between "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate" [that is, as a prosecutor]. It is only as a prosecutor that a D.A. has absolute immunity.  If he - or in this case she - steps out of that limited role, the immunity may be stripped away, says Banzhaf.

        The same officers, Sgt. Alicia White and Officer William Porter, filed suit against Mosby and Cogen on May 2nd for defamation and invasion of privacy, but many legal experts think that they may have little likelihood of prevailing on those civil causes of action.

        One or more of these new charges may have a better chance of succeeding, says Banzhaf, because they are the kinds of civil actions more typically brought where law enforcement official allegedly exceed their power and/or act for improper illegal reasons.

        The two police officers plan to argue that Mosby stepped outside her proper role as prosecutor when she allegedly filed charges, not necessarily because they were legally warranted, but rather to help prevent rioting and looting by a very angry public.

        Her statement that "I heard your calls for, 'No Justice, No peace,' . . . Your peace is sincerely needed as I work to deliver justice on behalf of this young man," show that, they will argue.  Many legal observers agree that these statements were at the very least unusual and perhaps inappropriate.

        Sometime the best defense is a strong offense, Banzhaf notes, suggesting that such suits by defendants may be filed for many possible purposes.  In addition to simply putting pressure on law enforcement authorities, they might pressure one defendant to turn on the other and reveal valuable information as a condition for dismissing the law suit against him.

         A civil action, especially if pre-trial discovery is not delayed, can also help uncover documents or other information helpful to the defendants in their criminal trials.

        The concept of holding Nifong personally liable for violating the civil right of the defendants was first advanced by law professor Banzhaf, who has successfully orchestrated legal actions against several major governmental figures, including former Vice President Spiro T. Agnew, who it was also widely believed could not be held civilly liable for his wrongdoing.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/  jbanzhaf@law.gwu.edu  @profbanzhaf