Nero v. Mosby
233 F. Supp. 3d 463
D. Maryland2017Background
- On April 12, 2015 Freddie Gray was arrested by Baltimore officers after a knife was found; during transport he became injured and later died. Six officers were charged after an SAO investigation led by State’s Attorney Marilyn Mosby; none were convicted. Five officers sued Mosby and Major Samuel Cogen alleging false arrest/imprisonment, malicious prosecution, abuse of process, defamation/false light (press conference), conspiracy, and §1983 claims.
- Plaintiffs allege Mosby and Cogen caused an Application for Statement of Charges to include false statements and omit exculpatory facts (e.g., misleading description of the knife, omissions about Gray’s conduct and medical presentation), causing arrests and indictments.
- Mosby held a May 1, 2015 press conference reading from the Application and emphasizing an independent SAO investigation; plaintiffs assert some statements were false and defamatory and made with actual malice.
- Defendants moved to dismiss under Rule 12(b)(6), asserting absolute prosecutorial immunity (Mosby), qualified immunity, statutory/state-agent immunity, public-official immunity, and limitations and conditional-privilege defenses for press statements.
- The court (Garbis, J.) accepted plaintiffs’ well-pleaded allegations as true for present purposes and dismissed certain claims while allowing others to proceed to discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| False arrest / false imprisonment (common law) | Arrests were procured by false/misleading Application; plaintiffs injured. | Arrests were pursuant to warrants and thus bar false arrest/ imprisonment claims. | Dismissed — where arrest is pursuant to a warrant, instigator not liable for false imprisonment; malicious prosecution remains. |
| Malicious prosecution (common law) | Plaintiffs: proceedings lacked probable cause; malice may be inferred from lack of probable cause. | Defendants: probable cause existed (commissioner/grand jury); immunity defenses. | Survives dismissal — plaintiffs plausibly plead lack of probable cause and malice sufficient to proceed. |
| §1983 malicious prosecution / Fourth Amendment claim | Defendants caused seizure by legal process unsupported by probable cause (Franks theory). | Defendants: magistrate and grand jury findings establish probable cause; qualified immunity applies. | Fourth Amendment §1983 claims survive dismissal (probable cause is fact issue); Fourteenth Amendment claims dismissed as duplicative. |
| Defamation / false light (press conference) | Mosby’s public statements (reading Application and commentary) contained falsehoods and were made with knowledge or reckless disregard. | Mosby: one-year statute ran (argues limitations); fair-reporting and fair-comment conditional privileges; absolute immunity. | Survives dismissal — limitations not a bar; conditional privileges may be defeated by self-reporting exception or mixed-opinion theory; absolute prosecutorial immunity does not cover press comments. |
| Absolute prosecutorial immunity (Mosby) | N/A (defense) | Mosby: actions were prosecutorial functions entitled to absolute immunity. | Partial denial — absolute immunity applies to grand-jury presentation and core advocacy acts, but not to investigative acts, legal advice to police, or press statements; claims based on grand-jury presentation dismissed. |
| Statutory / qualified immunity (Mosby & Cogen) | N/A (defense) | Defendants: §5-522 immunity and qualified immunity bar claims absent malice/gross negligence or clearly established law violation. | Denied at motion stage — plaintiffs plausibly allege malice or gross negligence, and qualified immunity is not clearly established on the face of the complaints; discovery required. |
| Abuse of process; civil conspiracy (standalone) | Plaintiffs allege ulterior motive and concerted action. | Defendants: process used normally; conspiracy not an independent tort. | Dismissed — abuse of process not plausibly pleaded (no post-process willful act); conspiracy cannot stand as independent claim (may be used to impose vicarious liability). |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must show plausibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (legal conclusions insufficient on a 12(b)(6) review)
- Franks v. Delaware, 438 U.S. 154 (two-prong test for false statements/omissions in warrant affidavits)
- Imbler v. Pachtman, 424 U.S. 409 (absolute immunity for prosecutors in advocacy functions)
- Buckley v. Fitzsimmons, 509 U.S. 259 (distinguishes advocacy from investigative or media acts; press comments not absolutely immune)
- Kalina v. Fletcher, 522 U.S. 118 (distinction between absolutely immune advocacy acts and non-immune actions of a complaining witness)
- Miller v. Prince George’s Cty., MD, 475 F.3d 621 (magistrate’s issuance does not shield when affidavit contains deliberate/reckless misstatements or omissions)
- New York Times Co. v. Sullivan, 376 U.S. 254 (public-official defamation standard: actual malice)
- DiPino v. Davis, 354 Md. 18 (malice may be inferred from lack of probable cause in malicious prosecution)
- Rosenberg v. Helinski, 328 Md. 664 (elements of defamation under Maryland law)
- Piscatelli v. Van Smith, 424 Md. 294 (fair comment and conditional-privilege analysis in Maryland)