Edward Nero v. Marilyn Mosby
890 F.3d 106
4th Cir.2018Background
- Freddie Gray died from a neck injury after being arrested, shackled, and transported in a Baltimore police van; the State Medical Examiner ruled the death a homicide.
- Major Samuel Cogen swore applications for Statements of Charges against six officers; State's Attorney Marilyn Mosby publicly announced the charges and read the statements of probable cause at a press conference.
- A grand jury later indicted the officers; prosecutions did not result in convictions (one mistrial, two acquittals, remaining charges dismissed).
- Five officers sued Mosby in federal and state claims alleging § 1983 malicious prosecution, state-law malicious prosecution, defamation, and false light based on her investigation, charging decisions, and press-conference statements.
- The district court allowed malicious-prosecution and press-conference tort claims to proceed; Mosby appealed asserting absolute prosecutorial immunity (federal and Maryland common law), Maryland Tort Claims Act (MTCA) immunity, and other privileges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mosby is entitled to absolute prosecutorial immunity for the § 1983 malicious-prosecution claim | Mosby investigated the case and thus lost absolute immunity for later charging decisions and drafting/reading the statement | Mosby’s drafting of charging documents, determination of probable cause, advice to file charges, and public reading were advocative acts entitled to absolute immunity | Reversed: Mosby entitled to absolute prosecutorial immunity for the § 1983 malicious-prosecution claim |
| Whether Maryland common-law absolute immunity bars state malicious-prosecution claims | State claims should proceed because Mosby’s investigative role stripped immunity | Maryland law adopts same functional absolute-immunity doctrine; acts intimately associated with judicial phase are absolutely immune | Mosby entitled to absolute prosecutorial immunity under Maryland common law for state malicious-prosecution claims |
| Whether Mosby has MTCA immunity for defamation and false-light claims arising from the press conference | Press-conference statements were outside her scope or made with malice/gross negligence, so MTCA immunity should not apply | Press-conference statements were within the scope of her duties as State's Attorney and plaintiffs pleaded no facts showing malice or gross negligence | Reversed: MTCA bars the defamation and false-light claims; Mosby acted within scope and no pleaded facts show malice or gross negligence |
| Appellate jurisdiction to review denials of immunity (collateral-order/pendent jurisdiction) | Denial of state-law immunity is not immediately appealable under Maryland collateral-order doctrine, so appellate review is improper | Federal collateral-order doctrine and pendent appellate jurisdiction permit review because immunity from suit is at stake and federal/state immunity questions are intertwined | Court had jurisdiction under the federal collateral order doctrine and exercised pendent appellate jurisdiction to resolve state-law immunity issues |
Key Cases Cited
- Imbler v. Pachtman, 424 U.S. 409 (1976) (establishing absolute prosecutorial immunity for functions "intimately associated with the judicial phase" of prosecution)
- Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (distinguishing advocative prosecutorial acts entitled to absolute immunity from investigative acts that are not)
- Kalina v. Fletcher, 522 U.S. 118 (1997) (prosecutor's drafting and certification of probable-cause materials and decision to file charges entitled to absolute immunity)
- Burns v. Reed, 500 U.S. 478 (1991) (advising police during investigative phase is not absolutely immune; functional approach required)
- Springmen v. Williams, 122 F.3d 211 (4th Cir. 1997) (Assistant State’s Attorney entitled to absolute immunity for reviewing police-prepared charging application and advising sufficiency to file)
- Gill v. Ripley, 724 A.2d 88 (Md. 1999) (Maryland Court of Appeals adopts federal prosecutorial-immunity doctrine and recognizes immunity protects prosecutors from suit)
- Franks v. Delaware, 438 U.S. 154 (1978) (probable-cause affidavit challenge requires showing inclusion of false statements knowingly or with reckless disregard for the truth)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (public officials suing for defamation must show actual malice — knowledge of falsity or reckless disregard for truth)