Richmond, VA - The attorney for Maryland State's Attorney Marilyn Mosby claimed she had immunity, and asked a federal appeals court on Wednesday to dismiss a malicious prosecution lawsuit.
In January, U.S. District Judge Marvin J. Garbis ruled that claims including malicious prosecution, defamation, and invasion of privacy could proceed against Mosby and sheriff who wrote the statement of probable cause.
The lawsuit was brought against Mosby by five Baltimore police officers who said they were maliciously prosecuted by her for the death of Freddie Gray, after he was arrested and transported in a police van on April 12, 2015.
Gray died on April 19, 2015, from a fatal spinal injury incurred inside the police van. Angry protesters rioted, and burned parts of Baltimore, in the wake of his death.
Five of the six Baltimore police officers involved in the incident - Lieutenant Brian Rice, Sergeant Alicia White, and Officers Garrett Miller, Edward Nero, and William Porter - sued Mosby and Baltimore City Assistant Sheriff Samuel Cogen in April of 2016 for filing false charges against them.
The Maryland state's attorney attempted to prosecute all six of the Baltimore police officers involved in the incident that resulted in Gray’s death. However, three officers were acquitted in bench trials, forcing Mosby to drop the criminal charges against the rest.
Next, the Baltimore Police Department brought administrative charges against five of the same officers. Two of the officers pleaded guilty, accepted minor discipline, and went back to work, The Baltimore Sun reported.
A police disciplinary review board found Lt. Rice, the supervisor during the incident, and Officer Caesar Goodson, the van’s driver, not guilty.
Baltimore Police Commissioner Kevin Davis dismissed the administrative charges pending against the fifth officer.
In the lawsuit, the five officers said that Mosby 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.
The officers 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.
Assistant Attorney General Karl Pothier told the three-judge panel that as a prosecutor, Mosby has immunity from the lawsuit filed by officers who were charged, but later cleared, in the arrest and death of Gray.
Lawyers for the police officers argued that Mosby acted as an investigator in their case, rather than as a prosecutor. As such, she is not immune from the lawsuit, they said.
Judge J. Harvie Wilkinson III questioned the officers' lawyers on Wednesday, "repeatedly raising his voice," about why they should be allowed to sue Mosby for bringing criminal charges against them, and holding a news conference to announce the charges, the Miami Herald reported.
"What we're talking about here is muzzling prosecutors who have publicly expressed grounds for prosecuting police officers,” Wilkinson said.
Andrew Toland III, one of the officers' attorneys, said that Mosby acted as a police officer in doing an independent investigation of Gray's death, and gave "incomplete or misleading" information to Assistant Sheriff Cogen.
Sheriff Cogen said he signed the application for the officers' arrest based on the summary of events provided by Mosby.
The 4th Circuit Court has not indicated when it will issue its ruling.