EDWARD MICHAEL NERO; GARRETT EDWARD MILLER, Plaintiffs - Appellees,
MARILYN J. MOSBY, Defendant-Appellant, and MAJOR SAMUEL COGEN, Defendant. BRIAN SCOTT RICE, Plaintiff - Appellee,
MARILYN J. MOSBY, Defendant-Appellant, and MAJOR SAMUEL COGEN, Defendant. ALICIA WHITE; WILLIAM PORTER, Plaintiffs - Appellees,
MARILYN J. MOSBY, Defendant-Appellant, and MAJOR SAMUEL COGEN; STATE OF MARYLAND, Defendants.
Argued: December 6, 2017
Appeals from the United States District Court for the
District of Maryland, at Baltimore. Marvin J. Garbis, Senior
District Judge. (1:16-cv-01288-MJG; 1:16-cv-01304-MJG;
Aram Pothier, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellant.
James Toland, III, TOLAND LAW, LLC, Sparks, Maryland; Brandy
Ann Peeples, LAW OFFICE OF BRANDY A. PEEPLES, Frederick,
Maryland, for Appellees.
E. Frosh, Attorney General, Michael O. Doyle, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellant.
T. Mallon, Jr., MALLON & MCCOOL, LLC, Baltimore,
Maryland, for Appellees Edward Michael Nero and Garrett
Ellin, LAW OFFICE OF DAVID ELLIN PC, Reisterstown, Maryland,
for Appellee Brian Scott Rice.
Michael E. Glass, THE MICHAEL GLASS LAW FIRM, Baltimore,
Maryland, for Appellees Alicia White and William Porter.
GREGORY, Chief Judge, WILKINSON and HARRIS, Circuit Judges.
GREGORY, Chief Judge:
Gray, Jr., suffered fatal injuries while handcuffed and
shackled in the custody of the Baltimore City Police
Department. The Baltimore State's Attorney's Office,
led by State's Attorney Marilyn Mosby, conducted an
investigation into Gray's death. After the State Medical
Examiner ruled Gray's death a homicide, Major Samuel
Cogen of the Baltimore City Sheriff's Office criminally
charged six of the police officers involved in Gray's
arrest and detention. The same day, State's Attorney
Mosby announced the charges and read the supporting
probable-cause statement to the public at a press conference.
A grand jury subsequently indicted the officers on
substantially similar counts, but ultimately, none was
the charged officers-Officer Edward Michael Nero, Officer
Garrett Edward Miller, Lieutenant Brian Scott Rice, Officer
William Porter, and Sergeant Alicia White
("Officers")-now seek to make State's Attorney
Mosby stand trial for malicious prosecution, defamation, and
false light invasion of privacy. They claim that her role in
independently investigating their conduct strips her of
absolute prosecutorial immunity and that their bare
allegations of malice or gross negligence overcome
Maryland's statutory immunity protections. We
resoundingly reject the invitation to cast aside decades of
Supreme Court and circuit precedent to narrow the immunity
prosecutors enjoy. And we find no justification for denying
Mosby the protection from suit that the Maryland legislature
has granted her.
this appeal comes to us at the motion-to-dismiss stage, we
recount the facts as alleged by the Officers and must accept
them as true for purposes of this appeal. See Jackson v.
Lightsey, 775 F.3d 170, 173 (4th Cir. 2014).
morning of April 12, 2015, Lieutenant Rice encountered
Freddie Gray, Jr., and another person walking along North
Avenue in Baltimore City. After making eye contact with Rice,
Gray and his companion ran. Rice pursued them and called for
backup. Officers Miller and Nero responded; Miller chased
Gray, and Nero chased Gray's companion. While pursuing
Gray, Miller yelled that he had a taser and instructed Gray
to get on the ground. Gray voluntarily surrendered with his
hands up. Miller brought him to the ground and handcuffed him
in a prone position. When Miller searched Gray, he found a
knife and informed Gray that he was under arrest.
police van arrived to transport Gray to the police station.
Nero, who had failed to apprehend Gray's companion, and
another officer placed Gray inside. Because a crowd of
citizens was forming, the van and the officers-including
Rice, Miller, Nero, and Officer Porter, who had arrived on
the scene-reconvened one block south to complete the
paperwork for Gray's arrest. At this second stop, Rice
and Miller removed Gray from the van, replaced his handcuffs
with flex cuffs, shackled his legs, and placed him back in
the van. The van departed, and the officers returned to their
thereafter, Porter received a call from the van driver
requesting assistance at another location several blocks
away. Porter met the van at this third location, assisted the
driver with opening the van's rear doors, and observed
Gray lying prone on the floor of the van. Gray asked for
medical assistance. Porter informed the driver that Gray
should be taken to the hospital, and then he left.
Miller and Nero returned to North Avenue, where they arrested
another person and called for a police van and additional
units. The van carrying Gray responded to this fourth
location, as did Porter and Sergeant White, who had already
"received supervisor complaints" about Gray's
arrest. J.A. 169. The second arrestee was placed in the van.
Gray again communicated to Porter that he wanted medical
assistance. White separately attempted to speak with Gray,
but Gray did not respond. Porter and White returned to their
vehicles and followed the van to the Western District police
police station, Gray was found unconscious in the back of the
van. An officer rendered emergency assistance, and Porter
called a medic. White confirmed that a medic was en route.
Gray was taken to the University of Maryland Shock Trauma
Unit, where he died due to a neck injury on April 19, 2015.
The State Medical Examiner ruled Gray's death a homicide.
1, 2015, Major Cogen executed an application for Statement of
Charges for each of the five Officers, plus the driver of the
van. Each application contained the same affidavit, sworn by
Major Cogen, reciting the facts supporting probable cause.
The affidavit explained that Rice, Miller, and Nero illegally
arrested Gray without probable cause because the knife found
on him was legal: "The blade of the knife was folded
into the handle. The knife was not a switchblade knife and is
lawful under Maryland law." J.A. 35. The affidavit
further stated that the officers repeatedly failed to
seatbelt Gray in the back of the van, contrary to a Baltimore
City Police Department General Order. It noted that Porter
observed Gray on the floor of the van, but "[d]espite
Mr. Gray's seriously deteriorating medical condition, no
medical assistance was rendered to or summonsed for Mr. Gray
at that time." J.A. 37. And, the affidavit asserted,
"White, who was responsible for investigating two
citizen complaints pertaining to Mr. Gray's illegal
arrest, spoke to the back of Mr. Gray's head. When he did
not respond, she did nothing further despite the fact that
she was advised that he needed a medic. She made no effort to
look, assess or determine his condition." J.A. 37.
Maryland district court commissioner approved the
applications and issued warrants for the Officers'
arrests. Nero and Miller were each charged with two counts of
assault in the second degree, two counts of misconduct in
office, and false imprisonment. Rice was charged with
manslaughter, two counts of assault in the second degree, two
counts of misconduct in office, and false imprisonment.
Porter and White were each charged with manslaughter, assault
in the second degree, and misconduct in office.
that day, State's Attorney Mosby held a press conference
to announce the charges and call for an end to the riots that
had erupted in Baltimore following Gray's death. She told
the public, "The findings of our comprehensive, thorough
and independent investigation, coupled with the medical
examiner's determination that Mr. Gray's death was a
homicide . . . has led us to believe that we have probable
cause to file criminal charges." J.A. 29. She then read
the full statement of probable cause verbatim.
the press conference, Mosby emphasized that she and her
office independently investigated Gray's death:
It is my job to examine and investigate the evidence of each
case and apply those facts to the elements of a crime, in
order to make a determination as to whether individuals
should be prosecuted. . . . [I]t is precisely what I did in
the case of Freddie Gray.
Once alerted about this incident on April 13, investigators
from my police integrity unit were deployed to investigate
the circumstances surrounding Mr. Gray's apprehension. .
. . [M]y team worked around the clock; 12 and 14 hour days to
canvas and interview dozens of witnesses; view numerous hours
of video footage; repeatedly reviewed and listened to hours
of police video tape statements; surveyed the route, reviewed
voluminous medical records; and we leveraged the information
made available by the police department, the community and
family of Mr. Gray.
J.A. 29. Mosby concluded her speech by calling for peace in
Baltimore as she moved forward with the charges:
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. . . .
[T]o the youth of the city[, ] I will seek justice on your
behalf. This is a moment. This is your moment. Let's
insure we have peaceful and productive rallies that will
develop structural and systemic changes for generations to
come. You're at the forefront of this cause and as young
people, our time is now.
21, 2015, a grand jury indicted all six officers on charges
substantially similar to those listed in the Statements of
Charges. Porter was tried before a jury, and after the jury
could not reach a unanimous verdict, the judge declared a
mistrial. Nero and Rice underwent bench trials, and the judge
ultimately found them not guilty on all counts. Thereafter,
Mosby dismissed all outstanding charges against Miller,
White, and Porter.
the criminal charges against all of the Officers were still
pending, the Officers sued State's Attorney Mosby. The
Officers claimed that she violated their rights by bringing
charges without probable cause and defamed the Officers by
making false accusations against them at the May 1, 2015
press conference. The Officers filed three separate
suits-one brought by Nero and Miller in the district court;
one brought by Rice, also in the district court; and one
brought by Porter and White in state court but removed to the
district court. The district court consolidated the three
cases. The Officers alleged, in relevant part, a 28 U.S.C.
§ 1983 claim for malicious prosecution under the Fourth
Amendment, a claim for malicious prosecution under Article 26
of the Maryland Declaration of Rights, and common-law claims
for malicious prosecution, defamation, and false light
invasion of privacy.
moved to dismiss the Officers' claims, asserting various
immunities. She asserted absolute prosecutorial immunity, or
alternatively qualified immunity, for the § 1983
malicious-prosecution claim; absolute prosecutorial immunity
under Maryland common law and statutory immunity under the
Maryland Tort Claims Act (MTCA) for the state
malicious-prosecution claims; and MTCA immunity and
common-law public-official immunity for the defamation and
false-light claims. Mosby further argued that the Officers
failed to state claims on which relief could be granted.
hearing, the district court allowed the three
malicious-prosecution claims, the defamation claim, and the
false-light claim to proceed. Nero v. Mosby, 233
F.Supp.3d 463, 489 (D. Md. 2017). The 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. Id. at 483‒86. The 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. Id. at 486‒88. And
the court determined that Mosby was not entitled to any
conditional privileges for the defamation and false-light
claims. Id. at 478‒ 80. The court did not
expressly address Mosby's immunity defenses to these
latter two claims.
timely appealed. She challenges the district court's
denial of immunity for the § 1983 malicious-prosecution
claim, the denial of immunity for the state
malicious-prosecution claims, and the failure to grant
immunity for ...