United States District Court, D. Maryland
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
CORRECTED MEMORANDUM AND ORDER
RE: DISMISSAL MOTIONS
J. Garbis United States District Judge
Court has before it the following motions to
dismisswith the materials submitted relating
Defendant Samuel Cogen's Motion To Dismiss [ECF No. 12].
Defendant Marilyn Mosby's Motion to Dismiss [ECF No. 25].
Defendant Samuel Cogen's Motion To Dismiss [ECF No. 8].
Defendant Marilyn Mosby's Motion to Dismiss [ECF No. 24].
Defendant Samuel Cogen's Motion To Dismiss [ECF No. 11].
Defendant Marilyn Mosby's Motion to Dismiss [ECF No. 22].
Court has held a hearing and has had the benefit of the
arguments of counsel.
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,  the police arrested Gray, obtained a
police vehicle to transport him to the police station, and
placed Gray in the vehicle.
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,  Gray died from a spinal cord
injury sustained in the course of the events of the morning
of April 12.
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”).
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.
1, an Application for Statement of Charges (“the
Application”) 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.
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,  that the accusations against the Six
Officers were not an indictment of the entire police force,
that the actions of the Six Officers would not harm the
working relationship between police and
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. 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.
at 5 [ECF No. 23-1 in 16-1304].
21, a Baltimore City grand jury indicted the Six Officers,
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
Nero with assault in the second degree intentional, assault
in the second degree negligent, misconduct in office, and
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.
at 4 [ECF No. 23-1 in 16-1304].
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, Goodson,
Nero, and Rice were tried separately by Judge Williams of the
Circuit Court of Baltimore City without a jury, and all three
Officers were acquitted. On July 27, 2016, Mosby dismissed
all charges against Miller, Porter, and White.
the Six Officers (collectively referred to as
“Plaintiffs”) have filed the instant lawsuits
against Mosby and Cogen:
Nero and Miller, (MJG-16-1288)
White and Porter (MJG-16-2663).
instant motions, Mosby and Cogen seek dismissal of all claims
against them pursuant to Federal Rule of Civil Procedure
motion to dismiss filed pursuant to Federal Rule of Civil
Procedure 12(b)(6) 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).
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)).
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 revealsthe 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)).
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.
assert the following claims:
Common Law Claims
a. False Arrest & False Imprisonment
b. Malicious Prosecution
c. Abuse of Process
d. Defamation & Invasion of Privacy
a. 42 U.S.C. § 1983 - Violation of the Fourth and
b. Violation of Maryland Declaration of Rights, Articles 24
Claims Against the State of Maryland
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.
Court shall address Plaintiffs' claims and
Defendants' immunity assertions in turn.
Common Law Claims
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].
has been no showing to the contrary.
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.”
claims of false arrest and false imprisonment are dismissed.
establish a malicious prosecution claim,  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
Exxon Corp. v. Kelly, 381 A.2d 1146, 1149 (Md. 1978)
(quoting Safeway Stores, Inc. v. Barrack, 122 A.2d
457, 460 (Md. 1956)).
is no doubt that each Plaintiff was the subject of criminal
proceedings that terminated in his/her favor.
discussed in Appendix B, accepting as true Plaintiffs'
factual allegations, they have pleaded plausible
claims that there was no probable cause to arrest and
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
DiPino v. Davis, 729 A.2d 354, 374 (Md. 1999)
(quoting Montgomery Ward, 664 A.2d at 925).
Plaintiffs' malicious prosecution claims are not
Abuse of Process
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)).
discussed in Appendix B, Plaintiffs have alleged facts
adequate to establish a plausible claim of an ulterior motive
on the part of the Defendants.
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).
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.”).
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
all abuse of process claims shall be dismissed.
Press Conference - Defamation and False Light
assert claims against Mosby for statements she
made during her May 1, 2015, press
conference. Plaintiffs claim that Mosby committed the torts
of defamation and invasion of privacy (false
discussed herein, Plaintiffs' press conference-based
claims for defamation and invasion of privacy (false light)
are not dismissed.
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.
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,
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.
at 2 [ECF No. 23-1 in 16-1304].
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.
addition to reading from the Application, Mosby made
statements that are plausibly, in context, defamatory. For
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.
at 4-5 [ECF No. 23-1 in 16-1304].
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).
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.
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
Id. (internal citations omitted).
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.
Invasion of Privacy (False Light)
regard to the tort of invasion of privacy (false light),
Maryland follows the Restatement (Second) of
Torts' definition of “false light, ”
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).
is no doubt that Mosby gave publicity to the statements made
in her press conference.
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.
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.
Mosby's Affirmative Defenses
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.
held her press conference on May 1, 2015. Plaintiffs'
defamation and invasion of privacy claims are subject to a
one-year limitations period. The Complaint in MJG-16-1288
was filed on April 29, 2016, within a year of the press
conference. The Complaints in MJG-16-1304 and MJG-2663 were
filed on May 2, 2016, a year and a day after the press
conference. However, May 1, 2016, was a Sunday. Therefore,
the limitations period was extended to the next business day.
Md. Rule 1-203(a)(2) (2016 Repl. Vol.).
does not present a valid limitations defense.