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Marilyn Mosby announcing criminal charges against officers in the Freddie Gray case in May 2015.

Cops Win Another Round Pursuing the Prosecutor Who Pursued Them

A judge rules against Marilyn Mosby in the Freddie Gray case.

When Freddie Gray died in Baltimore in April 2015, the city’s chief prosecutor, Marilyn Mosby, wasted no time in doing what prosecutors in other police-related deaths of African Americans had been slow to do: She went after the cops.

Within two weeks, Mosby rushed ahead of a grand jury to charge six officers in Gray’s death. After her decision, days of rioting and looting came to an end. The Black Lives Matter movement cheered her assertiveness. Trials began within the year.

But then things went wrong for Mosby. The criminal cases, which included second-degree murder and manslaughter charges, collapsed. In some, the police officers were acquitted; in others, the charges were dropped. And as Mosby’s tough approach disintegrated, the officers turned the tables — they took her back to court and sued her for something prosecutors are traditionally protected from: malicious prosecution.

Surprisingly, the U.S. District Court judge who is hearing their case, Marvin J. Garbis, has so far rejected Mosby’s arguments against the multimillion-dollar lawsuit, allowing it to move toward trial. In January, he quashed her effort to dismiss the case altogether. And on Monday, in rejecting her motion to stay the discovery process, he ordered that even as a prosecutor she must turn over her emails and be deposed under oath about a sensitive case.

The judge’s ruling was jolting, but not just for Mosby: In the U.S. justice system, lawsuits against prosecutors, let alone successful ones, are nearly unheard of. As the State’s Attorney for Baltimore, Mosby is supposed to have “absolute” immunity from being sued for doing her job. If she didn’t, the logic goes, she would be so concerned about potential litigation that she might not have the backbone to make tough charging decisions, especially against powerful defendants like organized-crime bosses — or cops.

“I’m not aware of any lawsuits like this — against a prosecutor — that have been successful, whether it’s police officers bringing it or people who have been wrongfully convicted or anyone else,” said Larry H. James, general counsel for the National Fraternal Order of Police and an expert on litigation involving law enforcement.

“We felt ours was the one-in-a-thousand case,” said Michael E. Glass, attorney for William Porter and Sgt. Alicia White, two of the officers suing Mosby.

That it may be, given Garbis’s latest ruling.

Garbis has ruled that Mosby could yet be entitled to normal prosecutorial immunity — but not until the court has explored her approach to the Gray case, which she and her office investigated on their own, going outside the normal role of prosecutor. Mosby has said she did that precisely because she felt the police were not willing or able to investigate themselves; the Baltimore police department allegedly failed to execute search warrants on its officers’ cell phones.

The officers also criticized Mosby for moving to charge them before the grand jury could investigate. She did so, according to accounts of her thinking at the time, because she had recently watched grand juries decline to indict police officers for Michael Brown’s death in Ferguson, Mo., and Eric Garner’s in Staten Island, N.Y.

The lawsuit, filed by Porter, White, Lt. Brian Rice, and officers Garrett Miller and Edward Nero, has reopened the dispute over the murky circumstances of Freddie Gray’s death. Gray, who was 25 and had a minor criminal record, was arrested for carrying a knife, handcuffed and put in a police van. But after the vehicle made multiple stops, he was found in a coma with his spinal cord severed. He died a week later, triggering the disturbances across Baltimore, which led to a state of emergency and caused injury to 130 police officers over several days.

Three of the officers in the Gray case were later acquitted, and cases against the others were dropped last July. By then, they had already filed the lawsuit against both Mosby and assistant sheriff Samuel Cogen, who wrote the charging documents.

In permitting the suit to go forward, Garbis ruled that the officers can plausibly make claims not only of malicious prosecution — the theory that a prosecutor targeted you for a purpose other than justice and without any probable cause — but also for defamation, invasion of privacy, and violations of their civil rights.

Mosby and Cogen deny the accusations. The Maryland Attorney General’s office, which is representing Mosby, said it does not comment on pending litigation.

Of course, a prosecutor who does her own investigation instead of relying on the officers involved, who does not rely on the grand jury process, and who is willing to risk her co-dependent relationship with beat cops in the process, is exactly what many activists have been demanding. But it’s precisely because Mosby took each of those atypical steps that she is a defendant now.

“What scares me about this case is that it’s a pretty strong signal from the police that prosecutors across the country should be careful about bringing charges when it comes to police misconduct... which most of them already are!” said Daniel S. Medwed, a law professor and expert on prosecutors and wrongful convictions at Northeastern University School of Law.

“Usually, we think prosecutorial immunity is bad, and this case is a fly in the ointment to that view,” he said. “What’s challenging is that a lot of us would normally want prosecutors to be held more accountable for their charging decisions, but when it comes to making the brave decision to bring charges against police, maybe not.”

A survey of news reports in recent years turned up just one other, similar lawsuit by a police officer: an Atlantic City, N.J., cop who had been accused of killing his wife. Prosecutors dropped the case in 2002, shortly before trial, when new forensic evidence suggested the wife had died of natural causes. Nevertheless, the officer, James L. Andros III, tried to sue, asserting that he had been wrongfully charged. But in 2009, the U.S. Supreme Court refused to let the suit go forward, saying it was within a prosecutor’s discretion to make a charging decision.

Lawsuits against prosecutors brought by ordinary citizens, not police officers, appear to be equally rare. The only partially successful one that most legal experts can name is the Duke University lacrosse case, which bears some key similarities to the suit against Mosby.

Three of the school’s varsity lacrosse players, all of them white, were charged with raping a black stripper who had been hired for a party. It turned out eventually that the woman had mostly lied. But the local prosecutor, Mike Nifong, finding himself in the national spotlight overseeing a racially charged case, failed to conduct a full investigation before bringing charges against the students. Nifong was later held in contempt of court, spent one night in jail and paid $1,000 as part of a settlement with the players.

“Prosecutors can intentionally convict someone they know to be innocent, and still have immunity,” said Chad N. Curlett Jr., a longtime attorney in the Baltimore area and chair of the criminal law section of the Federal Bar Association. “It’s kind of an extraordinary thing.”

Despite today’s decision, Mosby’s team will have another chance — after the depositions and the evidence-gathering process — to get the lawsuit against her dismissed, through a motion for “summary judgment.”

But as William Baude, a law professor at the University of Chicago Law School and formerly a clerk for Chief Justice John Roberts of the U.S. Supreme Court, put it, “If the case against Marilyn Mosby ends up going to trial, then something really unusual is going on here.”