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Nero v. Mosby

United States District Court, D. Maryland

January 6, 2017

EDWARD MICHAEL NERO, et al. Plaintiffs
MARILYN MOSBY, et al. Defendants BRIAN SCOTT RICE Plaintiffs
MARILYN MOSBY, et al. Defendants ALICIA WHITE, et al. Plaintiffs
MARILYN MOSBY, et al. Defendants


          Marvin J. Garbis United States District Judge

         The Court has before it the following motions to dismiss[1] with the materials submitted relating thereto:

In MJG-16-1288:
. Defendant Samuel Cogen's Motion To Dismiss [ECF No. 12].
. Defendant Marilyn Mosby's Motion to Dismiss [ECF No. 25].
In MJG-16-1304:
. Defendant Samuel Cogen's Motion To Dismiss [ECF No. 8].
. Defendant Marilyn Mosby's Motion to Dismiss [ECF No. 24].
In MJG-16-2663:
. Defendant Samuel Cogen's Motion To Dismiss [ECF No. 11].
. Defendant Marilyn Mosby's Motion to Dismiss [ECF No. 22].
The Court has held a hearing and has had the benefit of the arguments of counsel.


         At about 9:15 in the morning of April 12, 2015 (“April 12”), Baltimore City Police Officers detained Freddie Carlos Gray, Jr. (“Gray”), a 25-year-old black man, and found on him a knife that had a spring or other device for opening or closing the blade (the “Knife”). Considering possession of the Knife to be a crime, [3] the police arrested Gray, obtained a police vehicle to transport him to the police station, and placed Gray in the vehicle.

         After making four stops along the way, the police vehicle arrived at the station and Gray was observed to be in need of medical care. A medical unit was called and took Gray to the University of Maryland Shock Trauma Unit where he underwent surgery. A week later, on April 19, [4] Gray died from a spinal cord injury sustained in the course of the events of the morning of April 12.

         On April 21, six of the Baltimore City Police Officers who had interacted with Gray on April 12 (collectively referred to as “the Six Officers”) were suspended with pay. They were the driver of the vehicle, Caesar Goodson (“Goodson), Edward Nero (“Nero”), Garrett Miller (“Miller”), Brian Rice (“Rice”), Alicia White (“White”), and William Porter (“Porter”).

         On April 27, Gray's funeral was held. After the funeral there was substantial unrest in Baltimore City including riots, declaration of a state of emergency, deployment of the National Guard, and a curfew.

         On May 1, an Application for Statement of Charges (“the Application”)[5] against the Six Officers was filed in the District Court of Maryland for Baltimore City. Based thereon, a state court commissioner issued warrants, and the Six Officers were arrested.

         On May 1, State's Attorney Marilyn Mosby (“Mosby”) held a press conference, announced that she had filed charges against the Six Officers, and read from the Statement of Charges. In addition, Mosby stated that her staff had conducted an investigation independently from the Police Department that resulted in the charges against the Six Officers, [6] that the accusations against the Six Officers were not an indictment of the entire police force, [7] and that the actions of the Six Officers would not harm the working relationship between police and prosecutors.[8]

         Mosby further called upon the public, including those who, themselves, “had experience[d] injustice at the hands of police officers” to be peaceful as the Six Officers were prosecuted.[9] Mosby also said:

Last, but certainly not least, to the youth of the city. I will seek justice on your behalf. This is a moment. This is your moment. Let's insure we have peaceful and productive rallies that will develop structural and systemic changes for generations to come.

Transcript at 5 [ECF No. 23-1 in 16-1304].

         On May 21, a Baltimore City grand jury indicted the Six Officers, charging:

. Goodson with second degree depraved heart murder, involuntary manslaughter, second-degree negligent assault, manslaughter by vehicle by means of gross negligence, manslaughter by vehicle by means of criminal negligence, misconduct in office by failure to secure prisoner, and failure to render aid.
. Rice with involuntary manslaughter, assault in the second degree, assault in the second degree [sic], misconduct in office, and false imprisonment.
. Miller with intentional assault in the second-degree, assault in the second-degree negligent, misconduct in office, and false imprisonment.
. Nero with assault in the second degree intentional, assault in the second degree negligent, misconduct in office, and false imprisonment.
. White with manslaughter, involuntary manslaughter, second-degree assault, and misconduct in office.
. Porter with involuntary manslaughter, assault in the second degree, and misconduct in office.

Transcript at 4 [ECF No. 23-1 in 16-1304].

         None of the Six Officers was convicted of any crime. Three proceeded to trial. First, Porter was tried by a judge and jury that failed to agree upon a unanimous verdict. Second, Nero and Rice were tried separately by Judge Williams of the Circuit Court of Baltimore City without a jury, and both Officers were acquitted. On July 27, 2016, Mosby dismissed all charges against Goodson, Miller, Porter, and White.

         Five of the Six Officers[10] (collectively referred to as “Plaintiffs”) have filed the instant lawsuits against Mosby and Cogen:[11]

. Nero and Miller, (MJG-16-1288)[12]
. Rice, (MJG-16-1304)[13]
. White and Porter (MJG-16-2663).[14]

         By the instant motions, Mosby and Cogen seek dismissal of all claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6).


         A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6)[15] tests the legal sufficiency of a complaint. A complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). When evaluating a 12(b)(6) motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. However, conclusory statements or a “formulaic recitation of the elements of a cause of action” will not suffice. Id. A complaint must allege sufficient facts to “cross ‘the line between possibility and plausibility of entitlement to relief.'” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).

         Inquiry into whether a complaint states a plausible claim is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Thus, if the well-pleaded facts contained within a complaint “do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

         Generally, a motion to dismiss filed under Rule 12(b)(6) cannot reach the merits of an affirmative defense. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). However, affirmative defenses are appropriate to consider at the Rule 12(b)(6) stage “when the face of the complaint clearly reveals[16]the existence of a meritorious affirmative defense.” Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013)(emphasis added)(quoting Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011)).


         While the three Complaints are not absolutely identical, there is essentially commonality of the factual allegations and claims. Moreover, the Court will, if necessary, grant Plaintiffs leave to file amended complaints consistent with the instant decision. Therefore, the claims and defenses presented in all three cases shall be discussed collectively. Plaintiffs assert the following claims:

1. Common Law Claims
a. False Arrest & False Imprisonment[17]
b. Malicious Prosecution[18]
c. Abuse of Process[19]
d. Defamation & Invasion of Privacy[20]
e. Conspiracy[21]
2. Constitutional Claims
a. 42 U.S.C. § 1983 - Violation of the Fourth and Fourteenth Amendments[22]
b. Violation of Maryland Declaration of Rights, Articles 24 and 26[23]
3. Claims Against the State of Maryland[24]

         Defendants assert immunity from suit on certain of Plaintiffs' claims. Mosby claims absolute prosecutorial immunity from suit. Mosby and Cogen both claim public official immunity, statutory immunity, and qualified immunity.

         The Court shall address Plaintiffs' claims and Defendants' immunity assertions in turn.

         A. Common Law Claims

         1. False Arrest & False Imprisonment The Court stated in the October 11, 2016 Order issued in each case:

Absent a showing to the contrary, I shall dismiss the claims for false imprisonment and false arrest but consider claims for malicious prosecution.

[ECF No. 44 in 16-1304].

         There has been no showing to the contrary.

         In Maryland, when an individual is arrested pursuant to an arrest warrant, no claim for false arrest or false imprisonment lies against “either the instigator or the arresting officer where the plaintiff is not detained by the instigator.” Montgomery Ward v. Wilson, 664 A.2d 916, 927 (Md. 1995). “Rather, to the extent that the instigator acts maliciously to secure the warrant for the plaintiff's arrest, the plaintiff's cause of action against the instigator is malicious prosecution.” Id.

         All claims of false arrest and false imprisonment are dismissed.

         2. Malicious Prosecution

         To establish a malicious prosecution claim, [25] a plaintiff must prove that:

1. A criminal proceeding was brought against plaintiff,
2. The case terminated in the plaintiff's favor,
3. The absence of probable cause, and
4. Malice, meaning “a primary purpose in instituting the proceeding other than that of bringing an offender to justice.”

Exxon Corp. v. Kelly, 381 A.2d 1146, 1149 (Md. 1978) (quoting Safeway Stores, Inc. v. Barrack, 122 A.2d 457, 460 (Md. 1956)).

         There is no doubt that each Plaintiff was the subject of criminal proceedings that terminated in his/her favor.

         As discussed in Appendix B, accepting as true Plaintiffs' factual allegations, they have pleaded[26] plausible claims that there was no probable cause to arrest and prosecute them.

         There is no plausible claim that either Defendant had actual personal malice toward any Plaintiff. However,

[a]s a substantive element of the tort of malicious prosecution, malice means that the defendant “was actuated by an improper motive, ” a purpose “other than that of bringing [the plaintiff] to justice.” That kind of malice, though a separate element of the tort, may be inferred from the lack of probable cause.

DiPino v. Davis, 729 A.2d 354, 374 (Md. 1999) (quoting Montgomery Ward, 664 A.2d at 925).

         Accordingly, Plaintiffs' malicious prosecution claims are not dismissed.[27]

         3. Abuse of Process

         To establish an abuse of process claim, a plaintiff must prove an ulterior motive, and “a willful act in the use of process not proper in the regular conduct of the proceeding.” Palmer Ford, Inc. v. Wood, 471 A.2d 297, 310-11 (Md. 1984)(quoting W. Prosser, Handbook of the Law of Torts 857 (4th ed. 1971)).

         As discussed in Appendix B, Plaintiffs have alleged facts adequate to establish a plausible claim of an ulterior motive on the part of the Defendants.

         However, to establish an abuse of process there must be a willful act that takes place after the process has issued. That is, “[s]ome definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process.” Id. (emphasis added).

         “[T]here is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.” Id.; see also Berman v. Karvounis, 518 A.2d 726, 729 (Md. 1987) (“Appellants have failed to allege in what manner process was used in some abnormal fashion ‘to coerce/extort money and/or property from' them.”).

         Plaintiffs do not allege that the process was used for other than its regular purpose, i.e., to arrest persons charged with crimes. Thus, Plaintiffs have not alleged facts adequate to present a plausible claim that the Defendants wrongfully misused the arrest warrant after it was issued by the Commissioner.

         Accordingly, all abuse of process claims shall be dismissed.

         4. Press Conference - Defamation and False Light

         Plaintiffs assert claims against Mosby for statements she made[28] during her May 1, 2015, press conference. Plaintiffs claim that Mosby committed the torts of defamation and invasion of privacy (false light).[29]

         As discussed herein, Plaintiffs' press conference-based claims for defamation and invasion of privacy (false light) are not dismissed.

         a. Defamation

         To establish a defamation claim, a plaintiff must prove (1) that the defendant made a defamatory statement to a third person, (2) falsity, (3) legal fault, and (4) harm. Rosenberg v. Helinski, 616 A.2d 866, 876 (Md. 1992). Moreover, when a plaintiff is, as are these Plaintiffs, a public official, a higher degree of legal fault (actual malice) must be proven.

         Plaintiffs have adequately alleged that, in the press conference, Mosby made statements to third parties, i.e., the public. Some of Mosby's statements at the press conference are at least plausibly, if not obviously, defamatory.[30]

         For example, Mosby read from the Application, the statement that

[t]he knife [found on Gray] was not a switchblade and is lawful under Maryland law. . . . Lt. Rice, Officer Miller and Officer Nero failed to establish probable cause for Mr. Gray's arrest as no crime had been committed by Mr. Gray.

Transcript at 2 [ECF No. 23-1 in 16-1304].

         Mosby also read from the Application, statements that:

. Gray exhibited an “obvious and recognized need for medical assistance.” Id. at 3.
. White and Porter observed “Mr. Gray unresponsive on the floor of the wagon.” Id.
. “When [Gray] did not respond, [Officer White] did nothing further despite the fact that she was advised that he needed a medic.” Id.
. Officer White “made no effort to look, assess or determine [Gray's] condition.” Id.

         In addition to reading from the Application, Mosby made statements that are plausibly, in context, defamatory. For example:

To those that are angry, hurt or have their own experiences of injustice at the hands of police officers I urge you to channel that energy peacefully as we prosecute this case. . . .
To the rank and file officers of the Baltimore Police Department, please know that these accusations of these six officers are not an indictment on the entire force.
. . . I can tell you that the actions of these officers will not and should not, in any way, damage the important working relationships between police and prosecutors as we continue to fight together to reduce crime in Baltimore.

Transcript at 4-5 [ECF No. 23-1 in 16-1304].

         Plaintiffs, as police officers, are considered public officials who are subject to an augmented burden when asserting a defamation claim. “[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.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). “[P]olice officers, from patrol officers to chiefs, are regarded for New York Times purposes as public officials.” Smith v. Danielczyk, 928 A.2d 795, 805 (Md. 2007).

         To establish actual malice for defamation purposes, a plaintiff must prove by clear and convincing evidence that a defamatory statement was a “calculated falsehood or lie ‘knowingly and deliberately published.'” Capital-Gazette Newspapers, Inc. v. Stack, 445 A.2d 1038, 1044 (Md. 1982) (quoting Garrison v. State of La., 379 U.S. 64, 75, (1964)). It is not sufficient merely to prove that the statement was erroneous, derogatory or untrue, that the speaker acted out of ill will, hatred or a desire to injure the official, acted negligently, or acted without undertaking a reasonable investigation. Id.

         However, malice can be proven by circumstantial evidence because a plaintiff will “rarely be successful in proving awareness of falsehood from the mouth of the defendant himself.” Batson v. Shiflett, 602 A.2d 1191, 1214 (Md. 1992) (quoting Herbert v. Lando, 441 U.S. 153, 170 (1979)).

Absent such an admission, a public figure's proof must rely solely upon circumstantial evidence, which, by it, can establish actual malice and override a defendant's claim of good faith and honest belief that his statements were true.

Id. (internal citations omitted).

         Plaintiffs allege facts adequate to present a plausible claim that at least some of Mosby's defamatory press conference statements were made with knowledge that they were false or made with reckless disregard of whether they were false or not, that is with the requisite malice for defamation purposes. See Appendix B.

         b. Invasion of Privacy (False Light)

         In regard to the tort of invasion of privacy (false light), Maryland follows the Restatement (Second) of Torts' definition of “false light, ” which states:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if (a) the false light in which the other person was placed would be highly offensive to a reasonable person, and (b) 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 other would be placed.

Bagwell, 665 A.2d at 318 (citing Restatement (Second) of Torts § 652E (1977)). The tort does not require “making public any facts concerning the private life of the individual.” Restatement (Second) of Torts § 652E cmt. a; see also Klipa v. Bd. of Educ. of Anne Arundel Cty., 460 A.2d 601, 607-08 (Md.App. 1983).

         There is no doubt that Mosby gave publicity to the statements made in her press conference.

         Plaintiffs present a plausible claim that Mosby, in her press conference statements, placed them in a false light that would be highly offensive to a reasonable person. For example, she made the statements referenced in the foregoing discussion regarding the defamation claim.

         Plaintiffs have presented factual allegations adequate to present a plausible claim that Mosby knew of the falsity of her statements, or acted with reckless disregard of the truth and the false light, in which Plaintiffs would be placed. See discussion in Appendix B.

         c. Mosby's Affirmative Defenses

         Mosby presently seeks dismissal of Plaintiffs' claims based upon her press conference statements by virtue of

1. The alleged running of limitations, and
2. Conditional privileges.

         (i) ...

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