Nero v. Mosby

Decision Date07 May 2018
Docket Number No. 17-1168,No. 17-1166, No. 17-1169,17-1166
Citation890 F.3d 106
Parties Edward Michael NERO; Garrett Edward Miller, Plaintiffs-Appellees, v. Marilyn J. MOSBY, Defendant-Appellant, and Major Samuel Cogen, Defendant. Brian Scott Rice, Plaintiff-Appellee, v. Marilyn J. Mosby, Defendant-Appellant, and Major Samuel Cogen, Defendant. Alicia White ; William Porter, Plaintiffs-Appellees, v. Marilyn J. Mosby, Defendant-Appellant, and Major Samuel Cogen; State of Maryland, Defendants.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Karl Aram Pothier, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant. Andrew James Toland, III, TOLAND LAW, LLC, Sparks, Maryland; Brandy Ann Peeples, LAW OFFICE OF BRANDY A. PEEPLES, Frederick, Maryland, for Appellees. ON BRIEF: Brian E. Frosh, Attorney General, Michael O. Doyle, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant. Joseph T. Mallon, Jr., MALLON & MCCOOL, LLC, Baltimore, Maryland, for Appellees Edward Michael Nero and Garrett Edward Miller. David 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.

Before GREGORY, Chief Judge, WILKINSON and HARRIS, Circuit Judges.

Reversed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Harris joined. Judge Wilkinson wrote a concurring opinion.

GREGORY, Chief Judge:

Freddie 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 convicted.

Five of the charged officers—Officer Edward Michael Nero, Officer Garrett Edward Miller, Lieutenant Brian Scott Rice, Officer William Porter, and Sergeant Alicia White ("Officers")1 —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.


Because 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).

The 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.

A 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 patrol duties.

Shortly 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.

Meanwhile, 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 station.

At the 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.

On May 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.

A 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.

Later 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.

During 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.

J.A. 32-33.

On May 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....

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