RICHMOND, Va. — A lawyer for Baltimore’s top prosecutor asked a federal appeals court Wednesday to dismiss a lawsuit by five police officers who claim she maliciously prosecuted them in the death of a black man gravely injured in custody.
Assistant Attorney General Karl Pothier told the three-judge panel that as a prosecutor, Marilyn Mosby has immunity from the lawsuit filed by officers who were charged but later cleared in the arrest and death of Freddie Gray. Pothier urged the 4th U.S. Circuit Court of Appeals to overturn a judge’s decision to allow parts of the lawsuit to go to trial.
“A prosecutor’s protective cloak of absolute immunity is not so easily removed,” Pothier said.
Lawyers for the officers, however, said Mosby acted as an investigator — not simply as a prosecutor — and is therefore not immune from the lawsuit.
Gray, 25, died on April 19, 2015, from a fatal spinal injury suffered in a police van, prompting days of widespread protests and rioting. While tensions were still smoldering in Baltimore, Mosby charged six officers in Gray’s arrest and death, an announcement that brought celebrations in the streets.
Three were ultimately acquitted and Mosby dropped the remaining cases.
On Wednesday, Judge J. Harvie Wilkinson III grilled the officers’ lawyers about why they should be allowed to sue Mosby for bringing criminal charges against them and holding a news conference to announce the charges.
“What we’re talking about here is muzzling prosecutors who have publicly expressed grounds for prosecuting police officers,” said Wilkinson, who repeatedly raised his voice while questioning the officers’ lawyers.
Five of the officers sued Mosby, alleging that she did not have enough evidence to charge them and that she omitted key information about a witness who had observed that Gray was conscious during much of the ride in the police van. They also said evidence was withheld about another witness who said Gray was banging his head against the wall of the van while he was in custody.
Attorney Andrew Toland III said Mosby acted as a police officer in doing an independent investigation of Gray’s death and gave “incomplete or misleading” information to Major Samuel Cogen of the Baltimore City Sheriff’s Office, who had said he signed the application for the officers’ arrest based on the summary of events provided by Mosby. The officers also named Cogen as a defendant in their lawsuit.
The 4th Circuit did not indicate when it would rule.
The U.S. Department of Justice in September declined to bring federal civil rights charges against the six officers — three white and three black — meaning none could be held criminally responsible for Gray’s death. And in recent weeks, the police van driver and the highest-ranking officer in Gray’s arrest also were cleared of any administrative wrongdoing by a police panel. Police Commissioner Kevin Davis subsequently decided to scrap a final trial board.