Lawsuit Against Marilyn Mosby Could Make Prosecutors More Fearful of Going After Abusive Cops

Marilyn Mosby (Larry French/Getty Images for BET Networks)
Marilyn Mosby (Larry French/Getty Images for BET Networks)

When a federal judge made the unusual move earlier this month to allow key parts of a lawsuit filed by five of the six police officers in the Freddie Gray case to go forward against Baltimore City State’s Attorney Marilyn Mosby (as well as Assistant Sheriff Samuel Cogen, who wrote the statement of probable cause), the decision left some wondering if this was just more backlash for Mosby’s unfaltering pursuit of the case against the officers.


Judge Marvin J. Garbis, in his Jan. 6 ruling, allowed the claims of malicious prosecution, defamation and invasion of privacy to move forward, but he dismissed the claims of conspiracy, abuse of process and false arrest/imprisonment. Mosby, as prosecutors do, has absolute prosecutorial immunity, but Garbis ruled that in this case, because she asked for an independent investigation, her work as an investigator meant she didn’t have absolute immunity.

The implications of the Mosby case could be far-reaching, particularly as “law and order” becomes the new rallying cry under the Trump administration. For cases involving in-custody deaths of unarmed citizens, prosecutors may likely become fearful of pursuing an indictment against police because of the potential for a civil lawsuit.

Advocacy groups like Justice Now, based in Oakland, Calif., have noted that Mosby’s record as a state’s attorney is impeccable, including her 92 percent felony-conviction rate, the establishment of a community-engagement program, the improvement of victim and witness relations, and her advocacy to strengthen laws to better protect communities from repeat sexual offenders.

The case is not headed to trial just yet. The next phase will be the motion to dismiss, where lawyers for the plaintiffs will argue the merits of their case.

The Root talked to J. Wyndal Gordon, a Baltimore-based attorney who has been following the case closely, about some of the implications of the suit against Mosby:

The Root: What would a case like this mean to prosecutors who call for independent investigations in cases of police misconduct?


J. Wyndal Gordon: Independent investigations can still take place, but they must be conducted by an agency independent of the state’s attorney’s office, thereby adding an additional layer of protection from prosecution of law-enforcement officers. Ultimately, law-enforcement officers must be investigated by other law-enforcement officers lest the state’s attorney’s office risk the loss of immunity from civil lawsuits in the event of a failed prosecution. The judge worked very hard to ensure relief to the plaintiffs. I’ve not read an opinion in a long while that was more solicitous to plaintiffs suing a state’s attorney.

TR: I ask that question, in part, because it appears the judge allowed the lawsuit to move forward because Mosby did not have prosecutorial immunity because of her role as an investigator. Is this a dangerous precedent to set? Not just in police-abuse cases, but in any cases for which the prosecutor needs or wants to use independent investigators?


JWG: It certainly kicks wide open the door to prosecutors being charged civilly, whereas before it was merely cracked open. I think prosecuting prosecutors could possibly become mainstream with a case like this, especially for those newly elected to office who are not as adroit as, perhaps, their predecessors when it comes to addressing media.

TR: Proving actual malice in the case of defamation is usually very difficult to prove. Essentially, you have to prove that the defendant had the intent to harm someone—you have to prove his or her state of mind at the time of the incident. But according to the court’s memorandum that details the case, there is a different approach to actual malice if it’s activated by an improper motive—“a purpose other than bringing the plaintiff to justice.” This speaks to Mosby’s critics who say these officers were arrested in order to quell riots and to further her political career. Can you speak on this?


JWG: I still believe that proving malice will be the plaintiff’s biggest hurdle, but the opinion does suggest that it will ultimately be a jury question. It is, however, said by the judge that malice may be inferred by lack of probable cause, which could prove to be dangerous legally for the state’s attorney in this case.

Additionally, the court expanded upon a theory of “gross negligence,” which is written into the law but rarely accepted by the courts in practice, as a viable option for plaintiffs as an additional avenue to get around qualified immunity.


The entire case demonstrates that plaintiffs have the momentum of the court behind them. The case should and will probably be settled. The trial would require a jury because you need a jury to determine malice. In a federal case, jurors would come from jurisdictions that are very conservative.

The city is not required to pay for claims involving malice or gross negligence, but they will cover most other claims. The settlement will not require an admission of liability on the part of the state’s attorney’s office.


However, I expect the case to go through one more round of motions before any talks of settlement take place [motions for summary judgment—where evidence can be assessed for sufficiency]. Discovery needs to proceed to determine whether plaintiffs can meet the malice and gross-negligence standards explained by the court.

I believe that Mosby’s political career will survive this so long as she limits missteps on other cases and remains in the community.


TR: Does a case like this happen frequently?

JWG: It’s not extremely unusual; it does add another barrier to state’s attorneys who wish to address the corrosive problem of bad police officers who murder, violate citizens’ rights and participate in misconduct.


Depending on the police to prosecute the police or face a civil suit is a recipe for disaster and will definitely have a chilling effect on future prosecutors who seek justice on behalf of their constituents against law-enforcement officers who “kill and cover up” all in the name of doing their jobs.

I am an author, journalist and professor. My first book, Love, Peace and Soul, the behind-the-scenes story of the television show, Soul Train, was published in 2013.


Raineyb1013, Misfit Black Girl Island Denizen

How is this lawsuit allowed to continue? If a citizen was falsely arrested and tried and then attempted to sue the prosecutors and the police; the judge would have tossed the case with nary a thought.

Of course, the answer is that there is one law for us and one for the police; and this is being allowed to keep uppity Black women from daring to go after the cops. It is just one more piece of evidence that the justice system exists to serve certain people and has no problem chewing up the rest of is in service of it. Ms. Mosby is being punished for stepping out of line and not toeing the line of making sure cops remain unaccountable for the deaths that happen in their presence.

It is also unfortunate that the citizenry helped make this mess possible by their refusal to convict hold the police responsible for anything.