Nero et al v. Mosby et al

Filing 43

MEMORANDUM AND ORDER granting in part and denying in part 12 Defendant Samuel Cogen's Motion to Dismiss; granting in part and denying in part 25 Marilyn Mosby's Motion to Dismiss. Signed by Judge Marvin J. Garbis on 1/6/2017. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EDWARD MICHAEL NERO, et al.
Plaintiffs
vs.

*

Defendants
*

*

*

BRIAN SCOTT RICE

vs.

*

*

ALICIA WHITE, et al.

*

*

*

*

*
*

*

*

*

*

*

Plaintiffs
vs.

*
* CIVIL ACTION NO. MJG-16-2663

MARILYN MOSBY, et al.

*

Defendants
*

*

*

Defendants

*

*

* CIVIL ACTION NO. MJG-16-1304

MARILYN MOSBY, et al.

*

*

*

Plaintiffs

*

*
* CIVIL ACTION NO. MJG-16-1288

MARILYN MOSBY, et al.

*

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*
*

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*

*

MEMORANDUM AND ORDER RE: DISMISSAL MOTIONS
The Court has before it the following motions to dismiss1

1

Each motion was filed seeking dismissal or, in the
alternative, summary judgment. By the Procedural Order issued

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.

I.

SUMMARY INTRODUCTION2
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

August 26, 2016, in each case, the Court denied all summary
judgment motions without prejudice as premature.
2
This summary presents, as a background introduction, what
the Court presently understands to be undisputed or not
reasonably disputable. See Appendix A for a summary of the by
no means undisputed “facts” as alleged by Plaintiffs.
2

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,
3

Baltimore City Code § 59-22 states, “It shall be unlawful
for any person to sell, carry, or possess any knife with an
automatic spring or other device for opening and/or closing the
blade, commonly known as a switch-blade knife.”
4
All date references herein are to 2015 unless indicated as in
2016.
3

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

5

Signed by Major Samuel Cogen of the Baltimore City
Sheriff’s Office.
6
Once alerted about this incident on April
13, investigators from my police integrity unit
were deployed to investigate the circumstances
surrounding Mr. Gray’s apprehension. Over the
course of our independent investigation, in the
untimely death of Mr. Gray, my team worked around
the clock; 12 and 14 hour days to canvas and
interview dozens of witnesses; view numerous
hours of video footage; repeatedly reviewed and
listened
to
hours
of
police
video
tape
statements;
surveyed
the
route;
reviewed
voluminous medical records; and we leveraged the
information made available to us by the police
department, the community, and the family of Mr.
Gray.
* * *
4

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,

Lastly, I’d like to thank my team for
working around the clock since the day that we
learned
of
this
tragic
incident.
We
have
conducted
a
thorough
and
independent
investigation of this case.
Time Staff, Read the Transcript of Marilyn J. Mosby’s
Statement on Freddie Gray, TIME (May 1, 2015),
http://time.com/3843870/marilyn-mosby-transcriptfreddie-gray/ [hereinafter referred to as
“Transcript”] [ECF No. 23-1 in 16-1304].
We independently verified those facts and
everything
we
received
from
the
police
department,
so
it’s
a
culmination
of
the
independent investigation that we conducted as
well as the information we received from the
police department.
*

*
*
I can tell you that from day one, we
independently
investigated,
we’re
not
just
relying solely upon what we were given by the
police department, period.
¶ 81 [ECF No. 31 in 16-2663].
“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.” Transcript
at 5 [ECF No. 23-1 in 16-1304].
8
“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 5
[ECF No. 23-1 in 16-1304].
7

5

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 seconddegree, 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.

9

“To the people of Baltimore and the demonstrators across
America: I heard your call for ‘No justice, no peace.’ Your
peace is sincerely needed as I work to deliver justice on behalf
of this young man. 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.” Transcript at 4 [ECF No. 23-1 in 16-1304].
6



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.
proceeded to trial.

Three

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 Officers10 (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
10

I.e., all but Goodson.
Cogen, while not admitting any wrongdoing on the part of
Mosby, contends that the Application for Statement of Charges
that he signed was based on the investigation conducted by the
State’s Attorney’s Office and the Baltimore City Police. Hence,
he alleges, he cannot be held liable on any of Plaintiffs’
claims.
12
Filed on April 29, 2016, in this Court.
13
Filed on May 2, 2016, in this Court.
14
Filed on May 2, 2016, in the Circuit Court of Maryland for
Baltimore City and, on July 26, 2016, removed to this Court.
11

7

all claims against them pursuant to Federal Rule of Civil
Procedure 12(b)(6).

II.

DISMISSAL STANDARD
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 wellpleaded 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
15

All “Rule” references herein are to the Federal Rules of
Civil Procedure.
8

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.
Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007).

Goodman v.
However,

affirmative defenses are appropriate to consider at the Rule
12(b)(6) stage “when the face of the complaint clearly reveals16
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)).

III. DISCUSSION
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

16

In the limited circumstances where the allegations of the
complaint give rise to an affirmative defense, the defense may
be raised under Rule 12(b)(6), but only if it clearly appears on
the face of the complaint. Richmond, Fredericksburg & Potomac R.
Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993).
9

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 Imprisonment17
b. Malicious Prosecution18
c. Abuse of Process19
d. Defamation & Invasion of Privacy20
e. Conspiracy21
2. Constitutional Claims
a. 42 U.S.C. § 1983 – Violation of the Fourth and
Fourteenth Amendments22
b. Violation of Maryland Declaration of Rights,
Articles 24 and 2623
3. Claims Against the State of Maryland24

17

Counts VI and VIII in 16-2663. Counts I-II in 16-1304.
Counts I-IV in 16-1288.
18
Count XI in 16-2663.
19
Count XII in 16-2663.
20
Counts II and IV in 16-2663. Count V (defamation) in 161304. Counts IX and X (defamation) in 16-1288.
21
Count XIII in 16-2663.
22
Count X in 16-2663. Count IV in 16-1304. Counts VII and
VIII in 16-1288.
23
Count IX in 16-2663. Count III in 16-1304. Counts V and
VI in 16-1288.
24
All claims asserted against individual Defendants except
malicious prosecution, abuse of process, and conspiracy.
10

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

11

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’

25

A disfavored, but potentially valid, claim. See Exxon
Corp. v. Kelly, 381 A.2d 1146, 1149 (Md. 1978) (citing Siegman
v. Equitable Trust Co., 297 A.2d 758, 762 (Md. 1972))(“While the
tort is not a favorite of the law, the cause of action remains a
viable one in this State.”).
12

factual allegations, they have pleaded26 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
26

Allegations are not evidence. The Court is not deciding
whether Plaintiffs can present evidence adequate to avoid
summary judgment.
27
As discussed below, Mosby asserts absolute prosecutorial
immunity for her actions as a prosecutor. Plaintiffs’ malicious
prosecution claims relate to her actions when functioning as an
investigator and not as a prosecutor.
13

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.
14

4.

Press Conference - Defamation and False Light

Plaintiffs assert claims against Mosby for statements she
made28 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.
v. Helinski, 616 A.2d 866, 876 (Md. 1992).

Rosenberg

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
28

There are no factual allegations supporting a plausible
defamation or invasion of privacy (false light) against Cogen
for any public statement made by him.
29
Because “[a]n allegation of false light must meet the same
legal standards as an allegation of defamation,” courts often
analyze the torts concurrently. Piscatelli v. Van Smith, 35 A.3d
1140, 1146-47 (Md. 2012); see also Bagwell v. Peninsula Reg’l
Med. Ctr., 665 A.2d 297, 315 n.8 (Md. App. 1995).
15

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
30

A statement is defamatory if it “tends to expose a person
to public scorn, hatred, contempt or ridicule, thereby
discouraging others in the community from having a good opinion
of, or associating with, that person.” Rosenberg v. Helinski,
616 A.2d 866, 871 (Md. 1992); see also Ross v. Cecil Cty. Dep’t
of Soc. Servs., 878 F. Supp. 2d 606, 624 (D. Md. 2012).
16

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.”
Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).

N.Y.

“[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
17

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.

18

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.

19

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) Limitations
Mosby held her press conference on May 1, 2015.
Plaintiffs’ defamation and invasion of privacy claims are
subject to a one-year limitations period.31

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.).
Mosby does not present a valid limitations defense.
31

Md. Code Ann., Cts. & Jud. Proc. § 5-105 (2013 Repl. Vol.).
20

(ii) Conditional Privileges
Mosby claims that her statements at the press conference
were protected by conditional privileges.
“Conditional privileges ‘rest upon the notion that a
defendant may escape liability for an otherwise actionable
defamatory statement, if publication of the utterance advances
social policies of greater importance than the vindication of a
plaintiff’s reputational interest.’” Woodruff v. Trepel, 725
A.2d 612, 622 (Md. 1999)(quoting Marchesi v. Franchino, 387 A.2d
1129, 1131 (Md. 1978)).

A conditional privilege, unlike an

absolute one, can be lost if it is abused or if the defendant
acted with malice.

See Piscatelli, 35 A.3d at 1148.

The same

conditional privileges apply to both defamation and invasion of
privacy (false light). See Restatement (Second) Torts § 652G
cmt. a (“Under any circumstances that would give rise to a
conditional privilege for the publication of defamation, there
is likewise a conditional privilege for the invasion of
privacy.”);

Steer v. Lexleon, Inc., 472 A.2d 1021, 1023-24 (Md.

App. 1984) (applying privilege to defamation and false light
claims).
There are two conditional privileges that could apply to
Mosby’s statements:

21



The fair reporting privilege32 and its self-reporting
exception in regard to the statements Mosby read from
the Application, and



The fair comment privilege pertinent to Mosby’s other
statements.

(a)

Fair Reporting Privilege

The fair reporting privilege protects reports and restatements of legal and official proceedings, which themselves
are protected by absolute privilege. Woodruff, 725 A.2d at 617
(“It is well-settled in Maryland that statements uttered in the
course of a trial or contained in pleadings, affidavits, or
other documents related to a case fall within an absolute
privilege . . .”).

The fair reporting privilege applies “even

if the story contains defamatory material, as long as the
account is fair and substantially accurate,” Chesapeake Pub.
Corp. v. Williams, 661 A.2d 1169, 1174 (Md. 1995), meaning the
report must be “substantially correct, impartial, coherent, and
bona fide.” Piscatelli, 35 A.3d at 1149.
According to the Restatement (Second) of Torts, “[a]n
arrest by an officer is an official action, and a report of the
fact of the arrest or of the charge of crime made by the officer

32

Although Mosby did not raise the fair reporting privilege
in her responses, Plaintiffs addressed the fair reporting
privilege in their briefs, and the Court finds it appropriate to
address it.
22

in making or returning the arrest is therefore within the [fair
reporting] privilege covered by this Section.”

§ 611 cmt. h.

Analogously, Mosby’s verbatim reading from the Application of
the Statement of Charges at the press conference could be within
the fair reporting privilege because the underlying document is
related to the charge of crime and a court proceeding.
In the absence of an exception, Mosby would have a fair
reporting privilege in regard to her reading verbatim the
Application submitted to the District Court Commissioner.
However, Plaintiffs present a plausible claim that Mosby’s
statements fall within an exception to that privilege.
The Restatement (Second) of Torts commentary acknowledges
an exception to privilege, which the Maryland Court of Appeals
has labeled the “self-reported statement exception.” See
Rosenberg, 616 A.2d at 876.

The Restatement explains, “[a]

person cannot confer this [fair reporting] privilege upon
himself by making the original defamatory publication himself
and then reporting to other people what he had stated.

This is

true whether the original publication was privileged or not.”
Restatement (Second) of Torts § 611 cmt. c (1977). In its
interpretation of this exception, the Rosenberg Court held that
. . . the privilege will be forfeited only
if the defamer illegitimately fabricated or
orchestrated events so as to appear in a
privileged forum in the first place.
* * *
23

It is clear that the exception made for
self-reported statements aims to deter those
persons who, acting out of a corrupt
defamatory
motive,
abuse
the
privilege
accorded to fair and accurate reports of
judicial proceedings.
616 A.2d at 876-77.

An example of this would be provided by a

case in which a person filed a court pleading containing
defamatory statements so as to be able to claim a privilege when
he/she publicized the defamatory statements and injured
another’s reputation.
Plaintiffs have alleged facts adequate to present a
plausible claim that Mosby was instrumental in the investigation
on which the Application was based and participated in writing
the Application - even though Cogen signed it and submitted it
to the Commissioner.

They have plausibly alleged that Mosby, in

her press conference, read false statements in the Application
that she had created and knew were false for such purposes as
“appeasing the public and quelling the riots,” ¶ 135 [ECF No. 31
in 16-2663], getting the benefit of national attention and media
coverage, id. at ¶ 74, and promoting her political agenda, id.
at ¶¶ 236-37.
Plaintiffs’ allegations are sufficient to present a
plausible claim that the self-reporting exception could be
applicable to Mosby’s fair reporting privilege.

24

Mosby is not entitled to dismissal of Plaintiff’s press
conference-based claims by virtue of the fair reporting
privilege.

(b)

Fair Comment Privilege

The fair comment privilege covers expressions of “fair and
reasonable opinion[s] or comment[s] on matters of legitimate
public interest.” Piscatelli, 35 A.3d at 1152.

Reports on

prosecutions of crimes are matters of public interest. See id.
(noting that it is an “obvious” principle that prosecutions of
crimes, especially murder, are of public interest).

However, to

be covered by the privilege, the comments must be “pure
opinions,” not “mixed opinions.” Id. at 1153.

This means that

privileged opinions must be based on non-defamatory, true,
readily accessible, or privileged facts – not false,
unprivileged, or undisclosed facts. Id.
Plaintiffs have made factual allegations adequate to
present a plausible claim that Mosby’s statements were a “mixed
opinion” not protected by the fair comment privilege.

These

include the allegations that Mosby’s opinion and comments were
based on false statements Mosby read from the Application, that
Mosby caused the false statements to be in the Application to be
able to publicize them, and that the comments were, at least in
part, based on non-disclosed, non-public facts from her
25

independent investigation.33
Mosby is not entitled to dismissal of Plaintiffs’ press
conference based claims by virtue of the fair comment privilege.

5. Conspiracy
Plaintiffs assert claims labelled “civil conspiracy” as if
there could be a recovery from a Defendant as a conspirator in
the absence of an underlying tort.

However, in Maryland, civil

conspiracy is not recognized as an independent tort.

See Alleco

Inc. v. Harry & Jeanette Weinberg Foundation, Inc., 665 A.2d
1038, 1045 (Md. 1995).

The Court of Appeals has “consistently

held that ‘conspiracy’ is not a separate tort capable of
independently sustaining an award of damages in the absence of
other tortious injury to the plaintiff.” Id. (quoting Alexander
v. Evander, 650 A.2d 260, 265 n.8 (Md. 1994)).
As stated by the Maryland Court of Appeals more than a
century ago:
There is no doubt of the right of a
plaintiff to maintain an action on the case
against several, for conspiring to do, and
actually doing, some unlawful act to his
damage. But it is equally well-established,
that no such action can be maintained unless
the plaintiff can show that he has in fact
33

Mosby stated at the press conference, “the evidence we have
collected and continued to collect cannot ethically be released
to the public and I strongly condemn anyone in law enforcement
with access to trial evidence who has leaked information prior
[to] resolution of this case.” Transcript at 4.
26

been aggrieved, or has sustained actual
legal damage by some overt act, done in
pursuance and execution of the conspiracy.
It is not, therefore, for simply conspiring
to do the unlawful act that the action lays.
It is for doing the act itself, and the
resulting actual damage to the plaintiff,
that afford the ground of the action.
Kimball v. Harman & Burch, 34 Md. 407, 409 (Md. 1871).
While there is no separate tort claim for conspiracy,
Plaintiffs may utilize a civil conspiracy theory to hold a
defendant liable for torts committed by his/her co-conspirators
within the scope of the conspiracy.

Hence, Plaintiffs may

assert a conspiracy theory to hold a Defendant liable on a
substantive claim, but not as a free-standing claim.
Accordingly, all conspiracy claims are dismissed.34

B.

Constitutional Claims

Plaintiffs assert claims under the Fourth and Fourteenth
Amendments to the United States Constitution and essentially
duplicative claims under the Maryland Declaration of Rights
Articles 2435 and 2636.

34

Plaintiffs are not precluded from asserting – should there
be adequate evidence to support the assertion - that a Defendant
should be held liable on a remaining claim as a co-conspirator.
35
“[N]o man ought to be taken or imprisoned or disseized of
his freehold, liberties or privileges. . . or deprived of his
life, liberty or property, but by the judgment of his peers, or
by the Law of the land.” Md. Const. Decl. of Rts. art. XXIV.
27

Procedurally, Plaintiffs procedurally filed their
constitutional claims pursuant to 42 U.S.C. § 1983 that provides
in pertinent part:
Every person who, under color of [state law]
subjects, or causes to be subjected, any
citizen of the United States . . . to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured
. . .

42 U.S.C. § 1983 (2012).

To establish a § 1983 claim, a plaintiff must prove that a
defendant:
1. Acted under color of state law,
2. Deprived him/her of a right secured by the
Constitution, and
3. Is not entitled to qualified immunity.37

1.

Color of State Law

There is no doubt that all pertinent actions of Defendants
were performed under color of state law, i.e., as state
officials.

36

“[A]ll warrants, without oath or affirmation, . . . to
seize any person or property, are grievous and oppressive.” Md.
Const. Decl. of Rts. art. XXVI.
37
That is, the right must have been clearly established at
the time of events at issue. See Graham v. Gagnon, 831 F.3d 176,
182 (4th Cir. 2016). See discussion of qualified immunity below.
28

2. Deprivation of Rights
The Fourth Amendment to the United States Constitution
provides, in pertinent part:
The right of the people to be secure in
their persons, . . . against unreasonable .
. . seizures, shall not be violated.
U.S. Const. amend. IV.
The Fourteenth Amendment to the United States Constitution
provides, in pertinent part:
No State shall . . . deprive any person of
life, liberty, or property, without due
process of law.
U.S. Const. amend. XIV, § 1.
The essence of Plaintiffs’ § 1983 claims is that Defendants
committed wrongful actions that caused them to be arrested and
charged without probable cause, i.e., they effectively present a
malicious prosecution claim or wrongful seizure claim under §
1983.

“To state such a claim, a plaintiff must allege that the

defendant (1) caused (2) a seizure of the plaintiff pursuant to
legal process unsupported by probable cause, and (3) criminal
proceedings terminated in plaintiff’s favor.”

Evans v.

Chalmers, 703 F.3d 636, 647 (4th Cir. 2012).
As discussed in Appendix B, Plaintiffs have alleged facts
adequate to present plausible claims that Defendants caused
their arrest without probable cause. And, all criminal
29

proceedings ended in Plaintiffs’ favor.

Therefore, Plaintiffs'

allegations suffice to state a plausible claim that their Fourth
Amendment rights were violated by Defendants.
A “malicious prosecution claim under § 1983 is properly
understood as a Fourth Amendment [not a Fourteenth Amendment]38
claim for unreasonable seizure which incorporates certain
elements of the common law tort.” Lambert v. Williams, 223 F.3d
257, 261 (4th Cir. 2000)(citing other circuits).

Therefore, as

was done in Evans v. Chalmers,39 the Court shall dismiss
Plaintiffs’ Fourteenth Amendment claims.
In sum,

Plaintiffs’ Fourth Amendment claims are not

dismissed but Plaintiffs’ Fourteenth Amendment claims are
dismissed as effectively subsumed within their Fourth Amendment
claims.

C. Claims Asserted Against the State
The State of Maryland has not waived its sovereign immunity

38

“Where a particular Amendment ‘provides an explicit textual
source of constitutional protection’ against a particular sort
of government behavior, ‘that Amendment, not the more
generalized notion of substantive due process, must be the guide
for analyzing’ these claims.” Albright v. Oliver, 510 U.S. 266,
273 (1994)(quoting Collins v. Harker Heights, 503 U.S. 115, 125
(1992)).
39
703 F.3d at 646 n.2 (“Because the Fourth Amendment provides
“an explicit textual source” for § 1983 malicious prosecution
claims, the Fourteenth Amendment provides no alternative basis
for those claims.”).
30

for tortious acts or omissions by State personnel made with
malice or gross negligence. Md. Code Ann., Cts. & Jud. Proc.
Art. § 5-522(a)(4) (2013 Repl. Vol.).
Plaintiffs seek to recover from the State by virtue of the
alleged tortious acts by Mosby and Cogen.
herein,

However, as discussed

Plaintiffs’ claims against Mosby and Cogen are viable

only if they can establish malice or gross negligence.

Thus,

even if Plaintiffs should establish their claims based on
actions by Mosby and Cogen, the State would be entitled to
sovereign immunity.
Accordingly, all claims against the State of Maryland shall
be dismissed.40

D.

Defendants’ Immunity Defenses
1.

Absolute Prosecutorial Immunity (Mosby)

The Supreme Court recognizes that, in § 1983 cases, a state
prosecutor is entitled to absolute immunity in taking actions
pursuant to his/her functional role as an advocate for the
state.

See Buckley v. Fitzsimmons, 509 U.S. 259, 282–83 (1993).

In Gill v. Ripley, the Maryland Court of Appeals held,
as a matter of Maryland common law, []
prosecutors enjoy absolute immunity with
respect to claims arising from their role in
40

The State’s MTCA Notice Requirement defense to the
defamation and false light claims is, accordingly, moot.
31

the judicial process - evaluating whether to
commence
a
prosecution
by
criminal
information, presenting evidence to a grand
jury in the quest for an indictment, filing
charges, and preparing and presenting the
State’s case in court.
724 A.2d 88, 96 (Md. 1999).
Mosby claims absolute immunity from suit for all actions
taken by her when functioning as a prosecutor.

However, Mosby,

as “the official seeking absolute immunity bears the burden of
showing that such immunity is justified for the function in
question.” Burns v. Reed, 500 U.S. 478, 486 (1991).
To determine the extent of prosecutorial immunity in § 1983
cases, the Supreme Court has adopted a “functional approach,”
which applies absolute immunity only when a prosecutor is
performing an advocacy function, but not an administrative or
investigative function. See Burns, 500 U.S. at 486, 491.
Maryland courts have also adopted the functional approach
to absolute prosecutorial immunity.

Thus, in Maryland law,

when a prosecutor acts as an investigator, he/she is not
entitled to absolute immunity. See Simms v. Constantine, 688
A.2d 1, 5 (Md. App. 1997) (holding that a prosecutor who
investigated three policemen and “falsified evidence against
[the three officers] so as to cause the initiation of criminal
prosecutions against them” was not entitled to absolute
immunity).

32

The validity of Mosby’s claim that she was functioning as a
prosecutor is not “clearly reveal[ed]” on the face of the
complaint. See Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th
Cir. 2013).

In fact, Plaintiffs have presented factual

allegations plausibly refuting Mosby’s claim that she was
functioning as a prosecutor when taking the actions upon which
their claims are based.
Mosby’s prosecutorial immunity defense is asserted
regarding Plaintiffs’ claims that she:





Provided erroneous legal advice to Cogen,
Caused false statements in the Application for
Statement of Charges,
Presented false grand jury evidence,
Made tortious statements at her press conference.

These shall be addressed in turn.

a.

False Advice to Cogen

Plaintiffs allege that Mosby knowingly provided Cogen with
false advice that probable cause existed to arrest Plaintiffs.
In Burns v. Reed, 500 U.S. 478 (1991), the Supreme Court
rejected the proposition that prosecutors are entitled to
absolute immunity for legal advice provided to police prior to
the prosecution of a case.

Prosecutors who give “legal advice

to police about an unarrested suspect” are not entitled to

33

absolute immunity.41 Buckley, 509 U.S. at 275 (referencing
Burns).

As stated by the Burns Court:
Although the absence of absolute immunity
for the act of giving legal advice may cause
prosecutors to consider their advice more
carefully, “[w]here an official could be
expected to know that his conduct would
violate statutory or constitutional rights,
he should be made to hesitate.” Indeed, it
is incongruous to allow prosecutors to be
absolutely immune from liability for giving
advice to the police, but to allow police
officers
only
qualified
immunity
for
following the advice. Ironically, it would
mean that the police, who do not ordinarily
hold law degrees, would be required to know
the clearly established law, but prosecutors
would not.

500 U.S. at 495 (internal citations omitted)(quoting Mitchell v.
Forsyth, 472 U.S. 511, 524 (1985)).
And, stated by the Maryland Court of Special Appeals:
In no sense can any investigative
activity undertaken by [a prosecutor] or any
legal advice given by them to the police
commissioner, to the Mayor, or to anyone
else be deemed to be a part of the judicial
function of the State’s Attorney’s Office.
Simms, 688 A.2d at 15.
In the instant dismissal context, Mosby is not entitled to
absolute immunity for her allegedly knowingly providing false
advice to Cogen as to the existence of probable cause to arrest
Plaintiffs.

41

They may, however, be entitled to qualified immunity.
34

b.

Application for Statement of Charges

Plaintiffs allege that Mosby knowingly participated with
Cogen in creating a false and misleading Application for
Statement of Charges that led to Plaintiffs’ arrests.
In Buckley, the Supreme Court held that the defendant
prosecutor could be entitled to qualified (but not absolute)
immunity when he fabricated evidence during the preliminary
investigation of a crime. 509 U.S. at 261.42

The Court stated

that “[w]hen a prosecutor performs the investigative functions
normally performed by a detective or police officer, ‘it is
neither appropriate nor justifiable that, for the same act,
immunity should protect the one and not the other.’” Buckley,
509 U.S. at 273 (quoting Hampton v. Chicago, 484 F.2d 602, 608
(7th Cir. 1973), cert. denied, 415 U.S. 917 (1974)).
In Kalina v. Fletcher, 522 U.S. 118 (1997), the Supreme
Court drew a sharp distinction between a prosecutor’s absolutely
immune acts of preparing and filing an unsworn information
charging plaintiff with burglary and an unsworn motion for an
arrest warrant and the prosecutor’s non-immune act in signing an
accompanying “Certification for Determination of Probable
Cause.”

The Court concluded that in signing the Certification,

42

Specifically, the prosecutor developed the false testimony
of an expert witness to link the suspect to a boot print left at
the crime scene. Id.
35

the prosecutor could be entitled to qualified [but not absolute]
immunity because he was acting as a “complaining witness,” not
an advocate. Id. at 130.
In Springemen v. Williams, 122 F.3d 211 (4th Cir. 1997), an
Assistant State’s Attorney reviewed an application for a
Statement of Charges and Summons prepared by a police officer,
and advised that the facts were sufficient to warrant filing the
application.

Charges were brought and then dropped.

After the

charges were dropped, the subject of the prosecution sued,
alleging that the prosecutor had violated his Fourth Amendment
right.

He alleged that there had been no probable cause for

filing the charge and that the prosecutor’s advice was the
proximate cause of the criminal summons, which unreasonably
deprived him of his liberty.

The Springemen court held that the

prosecutor was entitled to absolute immunity, stating:
Our decision today is not a close one.
While the Supreme Court has not extended
absolute immunity to all legal advice by
prosecutors, it has never hesitated to grant
such immunity to prosecutors acting as
Williams did here - in their core role as
advocates for the state.
122 F.3d at 214.

The Springemen court clarified that Burns

“held that advising police in the investigative phase of a
criminal case” was not a judicial function, whereas
professionally evaluating evidence assembled by police was. Id.
at 213.
36

It may well be that the evidence, as distinct from
Plaintiffs’ allegations, will establish that Mosby, like the
prosecutor in Springemen is entitled to absolute immunity for
her actions vis-à-vis the Application.

Certainly, she did not

sign it and did not act as a “complaining witness” like the
prosecutor in Kalina.

However, Plaintiffs allege that Mosby did

not merely evaluate evidence and select the particular facts to
include in the Application based on the fruits of an independent
police investigation as recognized as acts of advocacy in
Kalina. 522 U.S. at 130.

Rather, Plaintiffs allege, Mosby acted

as an investigator engaged in the gathering (and fabricating) of
evidence.

Indeed, even Cogen states in a Reply to the pending

motions that “the charges were not based on a consultation with
prosecutors so much as prosecutors themselves actually selected
the charges to be filed based on their own investigation.” [ECF
No. 43 at 7 in 16-1304].
conference:

And, Mosby herself stated in her press

“I can tell you that from day one, we independently

investigated, we’re not just relying solely upon what we were
given by the police department, period.” ¶ 81 [ECF No. 31 at 162663].
Mosby is not entitled to dismissal of claims related to the
Application by virtue of absolute immunity for her actions.

37

c.

Grand Jury Evidence

Plaintiffs allege that Mosby caused false and misleading
evidence to be presented to the grand jury that indicted them.
For example, she43 required a grand jury witness to testify
pursuant to a “script” that included false and misleading
statements and not to answer pertinent questions. ¶ 92 [ECF No.
31 in 16-2663].
Prosecutors are entitled to absolute immunity for actions
taken before a grand jury.

Presenting evidence to seek an

indictment is the first step in bringing a case. See Imbler v.
Pachtman, 424 U.S. 409, 426 (1976).

Hence, even if Mosby, in

fact, engaged in the conduct alleged by Plaintiffs, she would be
immune from a claim based thereon.
Thus, all claims against Mosby based upon the presentation
of evidence to, or withholding evidence from, the grand jury are
dismissed.44

d. Press Conference Statements
On May 1, Mosby made statements at a press conference on
which Plaintiffs base claims for defamation and invasion of
43

And/or a member of her Office.
This dismissal of claims does not constitute a ruling that
Plaintiffs may not introduce evidence of Mosby’s actions vis-àvis the grand jury that would be relevant to claims as to which
she does not have immunity.
44

38

privacy (false light).

She is not entitled to absolute immunity

from these claims.
As stated in Buckley v. Fitzsimmons,
Comments
to
the
media
have
no
functional tie to the judicial process just
because they are made by a prosecutor. At
the press conference, [the prosecutor] did
not act in “his role as advocate for the
State.” The conduct of a press conference
does not involve the initiation of a
prosecution, the presentation of the state’s
case in court, or actions preparatory for
these functions. Statements to the press may
be an integral part of a prosecutor’s job,
see
National
District
Attorneys
Assn.,
National Prosecution Standards 107, 110 (2d
ed. 1991), and they may serve a vital public
function. But in these respects a prosecutor
is in no different position than other
executive officials who deal with the press,
and . . . qualified immunity [not absolute
immunity] is the norm for them.
509 U.S. at 277–78 (internal citations omitted)(quoting Burns,
500 U.S. at 491).
Mosby is not entitled to dismissal of claims based upon her
statements at the press conference by virtue of absolute
immunity.

2.
Section

Statutory Immunity
5-522

of

Maryland

Tort

Claims

Act

provides

that:
State personnel, as defined in § 12-101
of the State Government Article, are immune
from suit in courts of the State and from
39

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.
Md. Code Ann., Cts. & Jud. Proc. § 5-522(b)(2013 Repl. Vol.)
(emphasis added).
Mosby, a State’s Attorney, and Cogen, a Major in the
Sheriff’s Office of Baltimore City, are “state personnel” under
§ 12-101, and thus are protected by statutory immunity.

Md.

Code Ann., State Gov’t § 12-101(a)(6), (8) (2014 Repl. Vol.).
However, the scope of statutory immunity does not extend to
tortious actions committed with malice or gross negligence.
Plaintiffs’ claims are based upon allegations that Defendants
acted with malice and/or gross negligence.
“Malice” for statutory immunity 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’” and
the surrounding circumstances.”

“may be inferred from

Talley v. Farrell, 156 F. Supp.

2d 534, 545 (D. Md. 2001)(internal citations omitted)(quoting
Green v. Brooks, 725 A.2d 596, 610 (Md. App. 1999)).

The

plaintiff “‘must allege with some clarity and precision those
facts which make the act malicious.’” Id.

40

Gross negligence, in the context of statutory immunity, has
been defined as:
something more than simple negligence, and
likely more akin to reckless conduct; gross
negligence is “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 v. Rodriguez, 118 A.3d 829, 845-46 (Md. 2015) (quoting
Barbre v. Pope, 935 A.2d 699, 717 (Md. 2007)).
There is no allegation that Defendants’ actions were
motivated by hate, or an intent to injure Plaintiffs.

However,

taking Plaintiffs’ factual allegations as true, they have
presented a plausible claim that Defendants acted with utter
indifference to Plaintiffs’ rights to be free from unreasonable
seizure and deprivations of liberty, i.e.,
negligence.

with gross

Hence, while the evidence may later refute

Plaintiffs’ contentions, Defendants are not entitled to
dismissal of Plaintiffs’ claims by virtue of statutory immunity.

3.

Qualified Immunity

Defendants assert entitlement to qualified immunity for
Plaintiffs’ constitutional claims.45

45

Defendants also contend that public official immunity,
41

“The doctrine of qualified immunity
protects government officials from liability
for civil damages insofar as their conduct
does
not
violate
clearly
established
statutory or constitutional rights of which
a reasonable person would have known.”
In
practical effect, qualified immunity “gives
government officials breathing room to make
reasonable but mistaken judgments.” This
allowance for reasonable mistakes is the
product
of
“balanc[ing]
two
important
interests—the need to hold public officials
accountable
when
they
exercise
power
irresponsibly
and
the
need
to
shield
officials from harassment, distraction, and
liability when they perform their duties
reasonably.”
The shield of qualified immunity is
lost when a government official (1) violates
a constitutional right and (2) that right
was clearly established.
Graham v. Gagnon, 831 F.3d 176, 182 (4th Cir. 2016)(internal
citations omitted).
As noted in Graham, the right that must be clearly
established in question “is not the general right to be free
from arrest without probable cause, but rather the right to be
free from arrest under the particular circumstances of the
case.”

Id.

In the instant case, the allegedly established right can be
which is a type of common law qualified immunity, applies to
Plaintiffs’ state claims. However, public official immunity
only applies when the official is alleged to have acted
negligently, Smith v. Danielczyk, 928 A.2d 795, 813-14 (Md.
2007), whereas, here, the Officers must contend that Defendants
acted deliberately, with malice, and/or with gross negligence in
order to plead legally cognizable claims. Therefore, it is not
necessary for the Court to consider public official immunity.
42

stated to be the right to be free from arrest without probable
cause caused by Defendants’ submitting the Application
containing false statements and omitting material facts with at
least reckless disregard for the truth.

As stated by the United

States Court of Appeals for the Fourth Circuit in 2007:
[T]the Supreme Court has long held that
a
police
officer
violates
the
Fourth
Amendment if, in order to obtain a warrant,
he deliberately or “with reckless disregard
for
the
truth”
makes
material
false
statements or omits material facts. We and
our sister circuits have frequently applied
this mandate.
Miller v. Prince George’s Cty., MD, 475 F.3d 621, 631 (4th Cir.
2007) (internal citations omitted).
Defendants contend that because a District Court
Commissioner and the grand jury determined there was probable
cause, that should conclusively establish the existence of
probable cause to arrest Plaintiffs.46
As to the commissioner, the Fourth Circuit expressly has
rejected such a contention. “A magistrate’s issuance of the
warrant [for arrest] will not shield an officer when . . . the
underlying affidavit includes deliberate and reckless
misstatements and omissions, as here.” Id. at 632.

If, as

alleged here, a judicial officer finds probable cause based upon

46

See Mosby’s Motion to Dismiss [ECF No. 25-1 in 16-1304] at
27 and Cogen’s Reply [ECF No. 43 in 16-1304] at 7.
43

false statements in an affidavit, qualified immunity shall not
shield the affiant when the affidavit includes deliberate and
reckless misstatements and omissions.

See id.

Even if there were merit to the contention that the grand
jury indictment based upon evidence presented to the grand jury
established probable cause for prosecution,

Plaintiffs were

arrested based upon the Application.
Of course, the Court is not definitively deciding that
Defendants are not entitled to qualified immunity with regard to
probable cause to arrest Plaintiffs.

Rather, the Court is

determining that the existence of this affirmative defense is
not clear on the face of the complaint and a firm conclusion on
the reasonableness of the probable cause determination requires
greater factual development. Cf. Tobey v. Jones, 706 F.3d 379,
389 (4th Cir. 2013) (concluding “[w]hat is reasonable in this
context, therefore, requires greater factual development and is
better decided once discovery has been conducted”); Swagler v.
Neighoff, 398 F. App’x 872, 878 (4th Cir. 2010)(holding that the
district court acted within its discretion in denying qualified
immunity in advance of discovery.)47

47

In its recent decision in Pegg v. Herrnberger, No. 15-1999
(4th Cir. Jan. 4, 2017), ___ F.3d ___ (4th Cir. 2017), the
United States Court of Appeals for the Fourth Circuit recognized
that “probable cause or its absence will be at least an
evidentiary issue in practically all [§ 1983 wrongful arrest]
44

Accordingly, Defendants are not entitled to dismissal of
Plaintiffs’ constitutional claims by virtue of qualified
immunity.

V.

CONCLUSION:
For the foregoing reasons:
A.

In MJG-16-1288:
1. Defendant Samuel Cogen’s Motion To Dismiss [ECF No.
12] is GRANTED IN PART and DENIED IN PART.
2. Defendant Marilyn Mosby’s Motion to Dismiss [ECF No.
25] is GRANTED IN PART and DENIED IN PART.

B.

In MJG-16-1304:
1. Defendant Samuel Cogen’s Motion To Dismiss [ECF No.
8] is GRANTED IN PART and DENIED IN PART.
2. Defendant Marilyn Mosby’s Motion to Dismiss [ECF No.
25] is GRANTED IN PART and DENIED IN PART.

C.

In MJG-16-2663:
1. Defendant Samuel Cogen’s Motion To Dismiss [ECF No.
11] is GRANTED IN PART and DENIED IN PART.
2. Defendant Marilyn Mosby’s Motion to Dismiss [ECF No.
22] is GRANTED IN PART and DENIED IN PART.

D.

In all three cases:
1.

The following claims are dismissed:
a. False arrest,

cases” but noted that there is a significant difference between
the context of a motion to dismiss and a motion for summary
judgment in which the sufficiency of the evidence (as distinct
from allegations) can be tested. See also Tobey v. Jones, 706
F.3d 379, 392 (4th Cir. 2013).
45

b. False imprisonment,
c. Abuse of process,
d. Conspiracy,48
e. Section 1983 Fourteenth Amendment Violations,
f. Section 1983 Fourth Amendment claims based on
presentation to the grand jury (Mosby),49
g. All claims against the State of Maryland.
2.

The following claims remain pending:
a. Malicious prosecution,
b. Defamation,
c. Invasion of privacy (false light),
d. Section 1983 Fourth Amendment claims.50

E. The Court shall, promptly, conduct a conference
regarding further proceedings in these cases.
SO ORDERED, this Friday, January 06, 2017.

/s/__________
Marvin J. Garbis
United States District Judge
48

Plaintiffs are not precluded from asserting – should there
be adequate evidence to do so - that a Defendant should be held
liable on a substantive claim as a co-conspirator.
49
However, this Order does not determine whether evidence
regarding Mosby’s presentations to the grand jury would be
inadmissible in regard to other claims.
50
And the duplicative Maryland Declaration of Rights Article
26 claims.
46

APPENDIX A
Summary of “Facts” as Alleged by Plaintiffs
Plaintiffs allege a version of the facts that is by no
means undisputed by Defendants.

However the Court must, in the

instant dismissal context, assume the truth of Plaintiffs’
pleading allegations.

Therefore, this statement of Plaintiffs’

version of the facts, is not intended to, and does not, present
any determination as to whether Plaintiffs can present evidence
to establish the allegations asserted.

1.

Gray’s Arrest (Nero, Miller, Rice)

On the morning of April 12, 2015, Baltimore City Police
Officers Edward Nero (“Nero”)and Garrett Miller (“Miller”) and
Lieutenant Brian Rice (“Rice”) were on bicycle patrol on North
Avenue.

Rice called for help in pursuing two suspects.

Nero

and Miller responded. Officer Miller apprehended one of the
suspects, Freddie Carlos Gray, Jr. (“Gray”) near Mount Street.
After detaining and handcuffing Gray “for officer safety
reasons,” Miller found “a spring-assisted knife” on Gray’s
person.

Compl., ¶¶ 19, 22 [ECF No. 33-1 in 16-1288].

This

knife was illegal under Article 19, Section 59-22 of the
Baltimore City Code, which states “[i]t shall be unlawful for
any person to sell, carry, or possess any knife with an

47

automatic spring or other device51 for opening and/or closing the
blade, commonly known as a switch-blade knife.”

Miller arrested

Gray for possession of the knife.
During his arrest, Gray “became physically and verbally
combative,” causing a crowd to form around the Officers and
Gray.

¶ 22 [ECF No. 33-1 in 16-1288].

A police wagon was

summoned and arrived driven by Officer Caesar Goodson
(“Goodson”).
transport.

Gray refused to enter the police wagon for

Therefore, Nero and another Officer carried Gray to

the wagon.
Gray stood on the back step of the wagon as Nero conducted
a second search for weapons and then was placed inside the
wagon.

During this entire encounter, Nero, a former EMT, “did

not observe Gray exhibiting symptoms of a medical emergency.”
Id. at ¶ 20.

2.

The Transport of Gray

Gray was transported from the scene of his arrest to the
Western District police station, driven by Goodson.

Goodson

made four stops en route.

51

That is, the Code prohibits possession of a knife with any
automatic device (not just a spring) for opening or closing the
blade.
48

a. First Stop (Nero, Miller, and Rice)
Once Gray was in the wagon, he “began banging and slamming
himself” against the walls of the vehicle while screaming and
yelling. Id. at ¶ 27.

In order to avoid the gathering crowds,

Goodson moved the wagon one block away to complete paperwork and
effectuate the arrest.

At this first stop, Miller and Rice

removed Gray from the wagon, switched his handcuffs for flex
cuffs, and placed leg shackles on Gray because he was
“thrashing” around the wagon. ¶ 25 [ECF No. 39-2 in 16-1304].
Rice called for back-up because another crowd of onlookers
was forming in response to Gray’s yelling and banging.

Rice,

Nero, and Miller had no further interactions with Gray.

b. Second Stop
Goodson made a second stop near Baker and Mount Streets,
but none of the Plaintiffs interacted with Gray at this stop.

c. Third Stop (Porter)
Goodson stopped a third time at the intersection of Druid
Hill Avenue and Dolphin Street.

Goodson requested an additional

officer to respond to the area.

Officer William Porter

(“Porter”) responded and observed Gray lying prone on the floor
of the vehicle.
in 16-2663].

Gray asked Porter for “help.” ¶ 56 [ECF No. 31

Porter asked Gray, “what do you mean help?” and
49

Gray asked for help in getting off the floor. Id.

Porter raised

Gray by his arms to a sitting position on the bench.

Porter

could not fit in the wagon compartment while Gray was inside.
Gray did not appear to need medical assistance, but Porter asked
him if he wanted medical help.

Gray replied that he did, and

Ported advised Goodson to take Gray to the hospital.

Porter

“observed no exigent medical need, and observed Gray to be able
to sit upright, breathe and communicate.” Id. at ¶ 57.

Porter

knew that “many detainees are trying to avoid being transported
to the detention facility” by requesting medical assistance. Id.

d. Fourth Stop (Porter, White)
Goodson made a fourth stop at North Avenue to pick up a new
arrestee, Donta Allen, who was detained by Miller and Nero.
There was a call for back-up, to which Porter and Officer Alicia
White (“White”) responded separately.
When Porter arrived, he observed Gray kneeling on the
vehicle floor and leaning against the bench.

Porter spoke to

Gray and confirmed that Gray still wanted to go to the hospital.
Porter told this to another officer at the scene.
When White arrived, she approached Gray in the wagon and
attempted to speak with him.

She saw him breathing and heard

him making noises, but Gray would not answer her, which White
concluded was a sign of his non-compliant behavior.
50

White

states that Gray did not appear to be in medical distress.
one told her that a medic was needed.

No

Both White and Porter

left to go to the Western District station.

e. Arrival at Western District (White and Porter)
The police wagon arrived at the Western District Station
with Gray inside.
When Porter reached the station and approached the wagon,
he saw that Gray was unresponsive.
did not respond.

Porter tapped Gray, but Gray

Another officer began emergency aid while

Porter called a medic.
When White arrived at the station, she saw officers
removing Gray from the wagon and was told, for the first time,
to call a medic.

Another officer told White a medic had already

been called, but White called to confirm it was en route.

3. Gray’s Death
A medical unit took Gray from the Western District Station
to the University of Maryland Shock Trauma Unit where he
underwent surgery.

On April 19, 2015, Gray died from a spinal

cord injury.

4.

The Investigation and Charges

Following Gray’s death, State’s Attorney Mosby (“Mosby”)
51

led an independent investigation into the cause of Gray’s death
conducted by the State’s Attorney’s Office (“SAO”) police
integrity unit.

According to Mosby, the “findings of [the

SAO’s] comprehensive, thorough and independent investigation,
coupled with the medical examiner’s determination that Gray’s
death was a homicide, . . . led us to believe that we have
probable cause to file criminal charges.” Transcript at 1 [ECF
No. 23-1 in 16-1304].
Plaintiffs allege that Mosby and Major Samuel Cogen of the
Baltimore City Sheriff’s Office (“Cogen”) committed various
improper actions that Mosby and Cogen deny.

According to

Plaintiffs, Mosby and the SAO manipulated, fabricated, and
falsified evidence so that Plaintiffs52 would be arrested and
indicted. ¶ 79 [ECF No. 31 in 16-2663].

Mosby, during her

investigation, and “with Cogen’s complicity and assistance,”
developed a false and misleading narrative to justify the
Statement of Charges and arrest warrant Application
(“Application”). Id. at ¶ 85.

This narrative made it seem that

Gray had committed no crime, Plaintiffs illegally arrested Gray,
purposely neglected to seatbelt him so that he would be injured,
and then ignored his medical symptoms and cries for help.
Specifically, the Application stated that the knife Gray

52

And Goodson. 
52

possessed was “lawful under Maryland law,” and made no mention
that it was actually illegal under the Baltimore City Code.

The

narrative omitted exculpatory facts that would tend to show that
Gray was uncooperative, did not exhibit outward signs of medical
distress, and had tried to injure himself by banging his head on
the wagon wall, as well as other omissions.
Cogen signed and submitted the Statement of Charges and
Application for Statement of Charges to a District Court
Commissioner at Mosby’s direct or indirect instruction.

Cogen

allegedly knew that the statements submitted to get the arrest
warrants were false and unsupported by any evidence because of
his participation in the investigation.
On May 1, 2015, Plaintiffs (and Goodson) were arrested and
on May 21, 2015, indicted for charges on which no one was
convicted.

5.

Mosby’s Press Conference

On May 1, 2015, Attorney Mosby held a televised press
conference regarding her decision to pursue criminal charges
against the Officers.

Plaintiffs alleged that during her

presentation, Mosby spoke in a “divisive and inciting manner.” ¶
65 [ECF No. 33-1 in 16-1288].

Mosby quoted from the

Application, including the false statement that the knife
recovered from Gray was legal, and therefore, Rice, Nero, and
53

Miller lacked probable cause to arrest Gray.
Mosby made statements emphasizing her role in the SAO’s
independent investigation.

For example:

Once alerted about this incident on
April 13, investigators from my police
integrity unit were deployed to investigate
the circumstances surrounding Mr. Gray’s
apprehension.
Over
the
course
of
our
independent investigation, in the untimely
death of Mr. Gray, my team worked around the
clock; 12 and 14 hour days to canvas and
interview dozens of witnesses; view numerous
hours of video footage; repeatedly reviewed
and listened to hours of police video tape
statements; surveyed the route; reviewed
voluminous medical records; and we leveraged
the information made available to us by the
police department, the community, and the
family of Mr. Gray.
Transcript at 1 [ECF No. 23-1 at 16-1304].
We independently verified those facts and
everything we received from the police
department, so it’s a culmination of the
independent investigation that we conducted
as well as the information we received from
the police department.
*

*

*

I can tell you that from day one, we
independently investigated, we’re not just
relying solely upon what we were given by
the police department, period.
¶ 81 [ECF No. 31 in 16-2663].
Mosby also made other statements on which Plaintiffs base
claims, such as
To the people of Baltimore and demonstrators
across America: I heard your cries for ‘No
54

justice, no peace.’ Your peace is sincerely
needed as I work to deliver justice on
behalf of this young man. 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.
Transcript at 4 [ECF No. 23-1 in 16-1304].
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.
Id. at 5.
Plaintiffs allege that Mosby made her press conference
statements out of improper motives, such as pursuing political
ambitions, influencing legislation, and quelling the riots that
were taking place in Baltimore at the time.

6.

Grand Jury Presentation

On or about May 21, 2015, the SAO presented evidence before
a grand jury to get indictments against Plaintiffs.53

Assistant

State’s Attorney Janice Bledsoe gave Baltimore City Police
Detective Dawnyell Taylor, the lead detective in the criminal
investigation of Gray’s death, a four-page “script” to read in
front of the grand jury. ¶ 92 [ECF No. 31 in 16-2663].

53

And Goodson. 
55

This

script was “incomplete, misleading, biased, and partially
false”; for example, it falsely stated that the arresting
Officers tased Gray. Id. at ¶ 107.

Detective Taylor expressed

concerns about the document because of its misleading and false
information, but she was instructed to read it anyway, and was
prevented from responding to jury questions.

The grand jury

returned criminal indictments against all of the Officers.

7. Prosecutions
The SAO obtained no convictions on any of the charges
arising out of the Freddie Gray incident.

In December 2015,

Porter’s trial ended in a hung jury and mistrial.

Nero and Rice

had bench trials and were acquitted on May 23, 2016, and July
18, 2016, respectively.

On July 27, 2016, Mosby entered a nolle

prosequi in Officers Miller’s, Porter’s, and White’s criminal
cases.

56

APPENDIX B
The Franks Analysis
Plaintiffs present § 1983 malicious prosecution and/or
unlawful seizure claims of violation of their Fourth Amendment
rights. See Massey v. Ojaniit, 759 F.3d 343, 356 (4th Cir.
2014).
“A plaintiff’s allegations that police seized him
‘pursuant to legal process that was not supported by probable
cause and that the criminal proceedings terminated in his favor
are sufficient to state a . . . claim alleging a seizure that
was violative of the Fourth Amendment.’” Miller v. Prince
George’s Cty., MD, 475 F.3d 621, 627 (4th Cir. 2007)(quoting
Brooks v. City of Winston–Salem, 85 F.3d 178, 183-84 (4th Cir.
1996)).

Specifically, the Officers allege that they were

arrested pursuant to warrants that lacked sufficient probable
cause because the Defendants deliberately included false
statements and omitted exculpatory evidence from the
Application.
To evaluate a “false affidavit” claim, as made by
Plaintiffs, courts apply the two-prong test established in
Franks v. Delaware, 438 U.S. 154 (1978).
First,
plaintiffs
must
allege
that
defendants “knowingly and intentionally or
with a reckless disregard for the truth”
either
made
false
statements
in
their
affidavits or omitted facts from those
57

affidavits, thus rendering the affidavits
misleading.
Second,
plaintiffs
must
demonstrate that those “false statements or
omissions [are] material, that is, necessary
to” a neutral and disinterested magistrate’s
authorization of the search.
Evans v. Chalmers, 703 F.3d 636, 649–50 (4th Cir. 2012)
(citations omitted)(quoting Franks, 48 U.S. at 155-56)).
Plaintiffs allege that the Application for Statement of
Charges (“the Application”) contained material false and
misleading statements, including (1) the false statement that
Rice, Miller, and

Nero did not have probable cause to arrest

Gray because he had committed no crime; (2) the misleading
statement that the knife was “lawful under Maryland law”; (3)
the false statement that White was advised that Gray needed a
medic at the last stop; and (4) the false statement that Gray
was in a “seriously deteriorating medical condition” at or
before the last stop before the police station.
Plaintiffs also allege that Defendants caused material
omissions from the Application, including the facts that (1) the
knife found on Gray was assisted by a spring or other device for
opening and/or closing the blade and was illegal to possess in
Baltimore City; (2) a crowd was forming around the police wagon
at the first and second stops; (3) Gray was being physically
uncooperative and banging his head on the wall of the police
wagon; (4) the Baltimore Police Department General Order

58

regarding seatbelting arrestees had been issued on April 3,
2015, and did not impose a legal duty on the Officers; (5) two
witnesses at later stops stated that Gray was not in obvious
medical distress; (6) Gray’s neck injury was not obvious to the
medics who responded at the station; (7) Porter told the driver
(Goodson) to take Gray to the hospital even though he “believed
that Gray asked for a medic for purposes of being taken to the
hospital to avoid being processed, rather than because that he
was in need of medical assistance,” ¶ 98 [ECF No. 31 in 162663]; and (8) White “instructed other officers to call for a
medic, and then followed up again when the medic did not
promptly arrive, as soon as she knew that Gray was in distress,
as she clearly stated in her Recorded Statement.” Id. at ¶ 100.
Viewed in the light most favorable to the Plaintiffs, they
present allegations that present a plausible claim that the
Defendants made false statements or omissions either knowingly
or with reckless disregard of their truth or falsity.
An official acts with “reckless disregard” when he or she
acts “‘with a high degree of awareness of [a statement’s]
probable falsity,’ that is, ‘when viewing all the evidence, the
affiant must have entertained serious doubts” or ‘had obvious
reasons to doubt the accuracy of the information he reported.’”
Miller, 475 F.3d at 627
788 (3d Cir. 2000)).

(quoting Wilson v. Russo, 212 F.3d 781,

“With respect to omissions, ‘reckless
59

disregard’ can be established by evidence that a police officer
‘failed to inform the judicial officer of facts [he] knew would
negate probable cause,’” but mere negligence or innocent mistake
is not sufficient to show “reckless disregard.” Id. (quoting
Beauchamp v. City of Noblesville, Inc., 320 F.3d 733, 743 (7th
Cir. 2003)).
Plaintiffs allege that Mosby and Cogen knew from their
investigation that the alleged false statements in the
Application were untrue, or stated them with no factual support,
and intended to make the Application misleading in order to
arrest the Officers and gain national attention, calm the riots
in Baltimore City, and accomplish other personal objectives.
For example, Mosby knew that the knife Gray possessed was a
spring or other device assisted knife because she saw the knife,
she knew that the SAO was prosecuting other individuals for
possession of similar knives, and she knew that a District Court
Commissioner had found there had been probable cause to arrest
Gray because of his possession of the knife.

Plaintiffs assert

that Mosby intentionally misled the District Court Commissioner
by misleadingly wording the Application to say that the knife
was “lawful under Maryland law,” without accurately describing
or even mentioning the Baltimore City Code provision making its
possession illegal.
Plaintiffs allege that Cogen participated directly or
60

indirectly in the investigation, presenting a plausible basis
for a reasonable inference that Cogen knew what the knife was
and that Gray had been charged with illegal possession of it.
Plaintiffs allege that there was no factual basis
whatsoever to support the statements in the Application that
Gray was obviously injured before arriving at the police
station.

In fact, Plaintiffs refute the statement, alleging

that witnesses said that Gray was conscious at the last stop,
banging his head on the wall, and the medics did not see that he
had a neck injury.
Furthermore, if the Mosby had – as she claimed - conducted
a thorough independent investigation, which Major Cogen either
participated in or reviewed the results of, the Defendants would
have known the alleged exculpatory facts existed, such as the
witness statements and Plaintiffs’ attempts to check on Gray and
get him medical attention once they knew it was needed.
Plaintiffs allege that these facts were omitted intentionally by
Mosby, and with at least reckless disregard by Cogen.
In sum, Plaintiffs plausibly allege that the Application
was misleading because the omitted facts, when viewed in a light
most favorable to the Plaintiffs, establish the absence of
probable cause to arrest Plaintiffs.

These facts are: (1)

Plaintiffs did have probable cause to arrest Gray, (2) Gray was
trying to purposely injure himself to be avoid being taken to
61

jail, (3) Plaintiffs were not ignoring an obvious medical need
on Gray’s part, and (4) Plaintiffs did not seatbelt Gray out of
a need to move the wagon away from the crowd and out of concern
for officer safety because Gray was being physically combative.
Plaintiffs further allege that they did get medical attention
for Gray as soon as they were aware he actually needed medical
help.
Plaintiffs have made adequate allegations to satisfy the
first Franks prong.

That is, that Defendants knowingly and

intentionally, or with a reckless disregard for the truth,
either made false statements in their affidavits or omitted
facts from those affidavits, thus rendering the affidavits
misleading.
Under the second Franks prong, Plaintiffs must allege facts
to present a plausible claim that the false statements and
omissions were material.

“To determine materiality, a court

must ‘excise the offending inaccuracies and insert the facts
recklessly omitted, and then determine whether or not the
‘corrected’ warrant affidavit would establish probable cause.’
If the ‘corrected’ warrant affidavit establishes probable cause,
no civil liability lies against the officer.” Miller, 475 F.3d
at 628 (quoting Wilson, 212 F.3d at 789). “Probable cause exists
when the facts and circumstances within an officer’s knowledge —
or of which he possesses reasonably trustworthy information —
62

are sufficient in themselves to convince a person of reasonable
caution that an offense has been or is being committed.” Wadkins
v. Arnold, 214 F.3d 535, 539 (4th Cir. 2000)(citing Brinegar v.
United States, 338 U.S. 160, 175–76 (1949)).
As a result of the Application, the Officers were arrested
and charged with manslaughter (White), involuntary manslaughter
(Rice, White, Porter), intentional second degree assault (all
Plaintiffs), negligent second degree assault (Rice, Nero,
Miller), misconduct in office (all Plaintiffs), and false
imprisonment (Nero, Miller, Rice).
The Court has read the Application for the Statement of
Charges adding the alleged omissions and subtracting the alleged
false statements to evaluate whether the corrected Application
could “convince a person of reasonable caution” that Plaintiffs
could have committed at least one of the offenses charged.
Wadkins, 214 F.3d at 539.
The assault and false imprisonment charges rested on the
alleged erroneous assumption that Gray was arrested without
probable cause.

When the false and misleading statements about

the knife are corrected according to Plaintiffs’ contentions, it
is obvious that there was probable cause to arrest Gray.
The corrected Application presents no probable cause for
the voluntary manslaughter charge against Officer White.
Voluntary manslaughter is “an intentional homicide, done in a
63

sudden heat of passion, caused by adequate provocation, before
there has been a reasonable opportunity for the passion to
cool.” Cox v. State, 534 A.2d 1333, 1335 (Md. 988).

Viewed in

the light most favorable to White, the Application presents no
basis to conclude that White, not knowing that Gray was injured
or needed a medic until he was at the station, intended to kill
him.
The crime of involuntary manslaughter, for which Rice,
White, and Porter were charged, “is predicated on negligently
doing some act lawful in itself, or by negligently failing to
perform a legal duty” and “the negligence necessary to support a
conviction must be gross or criminal, viz., such as manifests a
wanton or reckless disregard of human life.”

State v. Gibson,

242 A.2d 575, 579 (Md. App. 1968), aff’d, 254 A.2d 691 (Md.
1969)(citing State of Maryland v. Chapman, 101 F.Supp. 335 (D.
Md. 1951)).

The Application assertion central to the

involuntary manslaughter charges, as well as the misconduct in
office charges, is that Plaintiffs failed to seat belt Gray as
required by the Baltimore Police Department General Order with a
wanton or reckless disregard for human life.

Based on the

“corrected” Application, viewed in a light most favorable to the
Plaintiffs, no reasonable person could conclude that Plaintiffs
failed to seat belt Gray due to gross or criminal negligence
under the circumstances.

Rather, as Plaintiffs allege, the
64

Order was new, they needed to quickly move the wagon to avoid
growing crowds, Gray was physically uncooperative making it hard
to position him in the wagon, and they did not know Gray was
hurt.
In the instant dismissal context, Plaintiffs have alleged
facts adequate to present a plausible Fourth Amendment claim.

65