Nero v. MosbyNero v. Mosby
- Reporters:
- ,
- Before:
- Catherine C. Blake
This is a consolidated civil action arising out of criminal prosecutions against several police officers after the death of Freddie Carlos Gray Jr. (“Gray“) in Baltimore, Maryland. The court has before it Defendant Samuel Cogen‘s Renewed Motion to Dismiss [ECF No. 91],1 which has been fully briefed by the parties. No oral argument is necessary to resolve the motion. Local Rule 105.6 (D. Md. 2016). For the reasons that follow, the motion will be granted.
The court provides only a brief summary of the factual allegations. A full discussion is contained in the Corrected Memorandum and Order Re: Dismissal Motions [ECF No. 54].2
Around 9:15 AM on April 12, 2015, Baltimore City police officers detained and arrested Gray for allegedly possessing an illegal knife under the Baltimore City Code. Corrected Mem. & Order at 47–48. The officers placed him in the back of a police wagon. Id. at 48. At the time of the arrest, Gray was not suffering from any medical emergency. Id.
The police wagon made four stops before reaching the police station. Id. One block south of the arrest location, officers removed Gray from the wagon, switched his handcuffs for flex cuffs, and placed shackles on his legs. Id. at 49. At both of the final two stops, Gray asked for medical assistance. Id. at 49–51. When the wagon arrived at the police station, Gray was unresponsive. Id. He was transported to the University of Maryland Shock Trauma Unit for surgery and died a week later from a spinal cord injury. Id. After the State Medical Examiner ruled his death a homicide, six officers (Caesar Goodson, Edward Nero, Garrett Miller, Brian Rice, Alicia White, and William Porter) were suspended and arrested on charges relating to his death. Id. at 3.
On May 1, 2015, Major Samuel Cogen (“Cogen“) of the Baltimore City Sheriff‘s Office signed the Application for Statement of Charges and corresponding probable cause affidavits for each of the officers charged (collectively, “Application“). Id. at 4 n.6. The Application was
The same day, Marilyn Mosby (“Mosby“), the State‘s Attorney, held a press conference to announce that she had conducted an independent investigation of Gray‘s death and planned to pursue charges against the six officers. Id. at 4–5. She read verbatim from the Application. Id. at 4, 23. She explained that accusations against the six offers were not an indictment of the entire police force and that the case would not harm the working relationship between police and prosecutors in the state. Id. at 5 n.8, n.9. She also called for peace. Id. at 6 n.10.
Following indictments by a grand jury, none of the six officers was convicted of any crime. Three officers proceeded to a bench trial and were acquitted, and one officer proceeded to a jury trial but the jury could not reach a unanimous verdict. Id. at 7. Charges against that officer and two others ultimately were dismissed. Id.
Subsequently, five of the six officers filed lawsuits against Mosby, Cogen, and the State of Maryland in federal court.3 Plaintiffs’ legal theories included false arrest and false imprisonment, malicious prosecution, abuse of process, defamation, false light, conspiracy, Section 1983 violations of the Fourth and Fourteenth Amendments, and violations of the Maryland Declaration of Rights Articles 24 & 26. The cases were consolidated in this court with Nero as the lead case.
Defendants sought dismissal of all claims. Following oral argument, this court dismissed all claims except malicious prosecution (based on Section 1983 violations of the Fourth
Mosby appealed the decision on February 3, 2017. On May 7, 2018, the Fourth Circuit reversed this court‘s decision, holding that all malicious prosecution claims against Mosby were barred by absolute prosecutorial immunity. See Nero v. Mosby, 890 F.3d 106, 119–24 (4th Cir. 2018). The Fourth Circuit also found that Mosby‘s press conference statements were made within the scope of her employment and without malice or gross negligence so that she was entitled to statutory immunity under the Maryland Tort Claims Act (“MTCA“) for the defamation and false light claims. Id. at 126–31.
The Fourth Circuit did not address any of the claims relating to Cogen or the State of Maryland.4 Following this decision, Cogen moved to dismiss all remaining claims against him.
ANALYSIS
When ruling on a motion under
Following the Nero decision, Cogen is the remaining defendant in this case. The only pending claims against him are the malicious prosecution claims (based on Section 1983 violations of the Fourth Amendment, the Maryland Declaration of Rights, and state common law) and the defamation and false light claims. Corrected Mem. & Order at 46, ECF No. 54.
A. Section 1983 Claim
The court will dismiss Plaintiffs’ Section 1983 claim because the Fourth Circuit decision leaves little room for doubt that probable cause existed to bring charges against the Plaintiffs. Furthermore, Cogen is entitled to qualified immunity.
1. Probable Cause & Lack of Malice
A “malicious prosecution” claim brought under
Probable cause exists when “facts and circumstances within the officer‘s knowledge ... are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed ... an offense.” Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir. 1998) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). Probable cause is “‘a probability or substantial chance of criminal activity, not an actual showing of such activity,’ and it is assessed based on the totality of the circumstances.” Nero, 890 F.3d at 130 (quoting Illinois v. Gates, 462 U.S. 213, 230, 243 n.13 (1983)).
There is no doubt that the Plaintiffs received favorable terminations of their criminal proceedings, either by acquittal or dismissal of charges. As to the third prong, however, the Fourth Circuit in Nero strongly suggested—if not explicitly stated—that the Application signed by Cogen was supported by probable cause. Id. at 129–30.5
“The gravamen of the Officers’ complaints is that Mosby and her office conducted an investigation into Gray‘s death, and despite finding no evidence of criminal wrongdoing, Mosby either instructed Cogen to file false charges or erroneously advised him that probable cause supported the charges.” Id. at 118. However, when discussing allegedly false statements in the Application, the Fourth Circuit explained that “the Officers offer no facts to support their
[The alleged factual omissions] do not negate probable cause, let alone establish that the Officers had no knowledge of Gray‘s condition. Probable cause is “a probability or substantial chance of criminal activity, not an actual showing of such activity,” and it is assessed based on the totality of the circumstances .... [W]e do not see how the Officers’ proffered facts preclude “a probability or substantial chance” the Officers knew Gray needed medical attention and failed to act.
Id. at 130 (citation omitted). See also id. at 131 (Plaintiffs’ “allegations, accepted as true, do not even negate that Mosby had probable cause to charge them“). This court sees no reason to apply a different probable cause analysis to Cogen, who played a lesser role in the events and whose only “hook” for liability is the Application itself.
Plaintiffs also fail to show that Cogen‘s drafting or signing of the Application was motivated by malice. Judge Garbis already found “no plausible claim that either Defendant had actual personal malice toward any Plaintiff.” Corrected Mem. & Order at 13. Although the court left open the possibility that malice could be inferred from the lack of probable cause, see DiPino v. Davis, 354 Md. 18, 55, 729 A.2d 354, 374 (1999) (“malice, though a separate element of the tort, may be inferred from the lack of probable cause“), Nero precludes such a finding. 890 F.3d at 129–30.
Accordingly, the court finds that the amended complaints fail to state a claim of malicious prosecution against Cogen.
2. Qualified Immunity
The
Two inquiries aid a court in determining whether a public official is entitled to qualified immunity. Although the Supreme Court‘s decision in Saucier v. Katz, 533 U.S. 194 (2001) directed a rigid approach to the inquiries involved, the requirement that the two-prong analysis must be “considered in proper sequence,” id. at 200, has since been revised. Courts are now “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
The first prong is whether “[t]aken in the light most favorable to the party asserting the injury ... the facts alleged show the officer‘s conduct violated a constitutional right[.]” Saucier, 533 U.S. at 201. The second prong is whether the right was “clearly established” at the time of the events at issue. Id. If the right was not clearly established, the qualified immunity doctrine shields the defendant officer from liability. Pearson, 555 U.S. at 243–44.
Plaintiffs also contend that the Application contained false statements and material omissions. See, e.g., ECF No. 33-1 ¶¶ 65, 67 in 16-1288, ECF No. 39-2 ¶¶ 34, 36 in 16-1304, ECF No. 31 ¶¶ 73, 76, 85–88 in 16-2663 (alleging that the Application included false statements about the legality of the knife, Gray‘s medical condition, and the officers’ efforts to provide him medical aid); ECF No. 31 ¶¶ 85–87, 89–93, 98–100 in 16-2663 (alleging that the Application omitted material facts about the officers’ duty to restrain Gray in a seatbelt and about Gray‘s medical condition at various points of the wagon ride). However, the Nero Court rejected these arguments in the defamation and false light context. 890 F.3d 129–30.
Moreover, even if the probable cause determination was “mistaken,” Cogen‘s actions were “nevertheless objectively reasonable” under the facts of this case. Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016). Although Cogen followed Mosby‘s instructions and legal advice when drafting and filing the Application and statement of probable cause, doing so was objectively reasonable because there is no evidence that those statements were false or contained material omissions in the first place. Nero, 890 F.3d 129–30 (finding that none of the allegedly false statements were shown to be false and that none of the omitted facts identified in the complaints is material). “So long as the application includes all material facts, a prosecutor need not also present the defendant‘s defense.” Id. at 130 (emphasis in original). Cogen did all that was required of him under the circumstances to enjoy qualified immunity.
B. State Law Claims
The Maryland Tort Claims Act (“MTCA“) provides in relevant part:
“State personnel ... are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence[.]”
“Consistently, the MTCA ‘provides that a State employee acting within his or her scope of employment and without malice or gross negligence is immune from suit.‘” Cooper v. Rodriguez, 443 Md. 680, 708, 118 A.3d 829, 845 (2015). “Malice” for MTCA purposes “requires a showing that the official intentionally performed an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately injure the plaintiff.” Talley v. Farrell, 156 F. Supp. 2d 534, 545 (D. Md. 2001) (internal quotations omitted) (quoting Green v. Brooks, 125 Md. App. 349, 377, 725 A.2d 596, 610 (1999)). “Gross negligence” in this context has been defined as “an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them.” Cooper, 443 Md. at 686, 118 A.3d at 832–33 (quoting Barbre v. Pope, 402 Md. 157, 187, 935 A.2d 699, 717 (2007)). Plaintiffs must point to specific facts that raise an inference of gross negligence because “conclusory allegations are not enough[.]” Barbre, 402 Md. at 188, 935 A.2d at 717.
The court finds that the MTCA analysis for Cogen is substantially the same, and that the Nero decision requires the dismissal of the remaining state law claims against him.
1. State Law Malicious Prosecution Claims
As sheriff of Baltimore City, and under the facts of this case, Cogen is treated as “State personnel” for MTCA purposes, see
Allegations of malice by Cogen are wholly unsupported by facts. See Corrected Mem. & Order at 13 (“There is no plausible claim that either Defendant had actual personal malice toward any Plaintiff.“); id. at 41 (“There is no allegation that Defendants’ actions were motivated
2. Defamation and False Light
The defamation and false light claims against Cogen also must be dismissed.8 The dispositive question is whether Cogen acted with gross negligence or reckless disregard for any allegedly false statements or material omissions in the Application. Applying an analysis similar to the Franks test, the Fourth Circuit found no support for the claim that the Application contained false statements or material omissions. Nero, 890 F.3d at 128–30. Indeed, the Circuit noted that “the Officers’ narrative of the events of April 12, 2015, is so similar to that described in the application for Statement of Charges that it almost confirms the accuracy of the information Mosby reported.” Id. at 129. Moreover, some of Plaintiffs’ arguments were rejected as legal issues, not factual statements that could be proven true or false. Id. at 129 (“The lawfulness of the knife is a legal question—not a discrete fact that can be proven true or false.“).
Likewise, Cogen also enjoys MTCA immunity for these tort claims because he did not act with malice or gross negligence. Cogen wrote and signed the same Application that Mosby read verbatim at the press conference, and the “only statements that the Officers challenge as tortious are those Mosby read from the application for Statement of Charges.” Id. at 128. The court declines to accept Plaintiffs’ argument that Cogen‘s written statements in the Application should be treated differently.
These claims also will be dismissed for failure to meet required elements for defamation and false light. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (“‘[A] public official [cannot] recover[] damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.‘“); Furman v. Sheppard, 130 Md. App. 67, 77, 744 A.2d 583, 587 (2000) (a claim for false light requires that the actor “had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the [plaintiffs] would be placed“).
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Finally, Plaintiffs ask for leave to amend their pleadings. See Pls.’ Opp. at 7, ECF No. 96. However, they have neither stated a basis for amendment nor demonstrated how they would overcome the deficiencies that warrant dismissal of these claims.
For the reasons stated above, the court will grant Defendant Samuel Cogen‘s Renewed Motion to Dismiss [ECF No. 91].
A separate Order follows.
Date 8/23/18
Catherine C. Blake
United States District Judge