The defamation suit against Marilyn Mosby in Freddie Gray case has a few big problems

 

By Casey Harper

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Two officers charged in the death of Freddie Gray are suing Baltimore State’s Attorney Marilyn Mosby, but legal experts have serious doubts about their case.

Sgt. Alicia White and Officer William Porter have filed suit against Mosby for defamation and invasion of privacy, alleging she made false statements about them to quell the Baltimore riots. Legal experts told The Daily Caller News Foundation the suit has an uphill battle. They point out that prosecutors have broad immunity and are difficult to bring charges against. On top of that, the law makes it difficult to sue state employees while they’re acting in their employment, and aside from the difficulties involved in suing a prosecutor, defamation cases are often difficult to win.

“The bottom line is that there are a lot of obstacles for the plaintiffs to overcome,” Don Gifford, a University of Maryland Francis King Carey School of Law professor, told TheDCNF. “They must win a lot of legal issues in order to prevail in their litigation, but it’s not a firmless case. It‘s a tough piece of litigation, but it’s not a firmless case.”

Gifford said the officers could be considered public figures because the case is so high-profile, making a defamation claim even more difficult. The Supreme Court has broadly protected speech against public figures.

“In those circumstances the defendant, Mosby, would have to have either made these statements knowing that they’re false or with reckless disregard as to whether they are true or false,” Gifford told TheDCNF.

Michael Glass, the lawyer representing the officers in the suit, told TheDCNF that Mosby overreached so far that she should not be protected by the immunity usually due to prosecutors. Glass says she used rhetoric and charges that were too tough in order to quell the riots after Gray’s death. The aggressive charges against all six officers did raise eyebrows, but experts largely say it does not warrant a defamation suit victory.

“Our position is that once she brought charges for purposes other than prosecution these officers for alleged charges, she went outside her scope of employment and therefore does not enjoy absolute immunity,” Glass told TheDCNF. “She certainly was not acting as a prosecutor. The reaction to some of the verbiage that she used was pretty significant. She was saying things like ‘I’ve heard your call of no justice, no peace.’ That she’s seeking justice on behalf of the young people. She said something to the effect that ‘your time is now. Our time is now.’ Those aren’t words that support the purported reasons for bringing the charges which was prosecuting a crime. It speaks more to stopping the riots and appeasing the crowd. Our position is that this goes outside the scope of her employment.”

David Vladeck, professor of Law at Georgetown University, told TheDCNF he believes the officers are aware of the legal difficulties in the case, but they want to get their side of the story out. He said the “odds of winning are very low.”

“I don’t think the police officers who brought this case expect to win the case,” he told TheDCNF. “The standard would require them to show and to allege that Ms. Mosby knew full well at the time she made these statements that the statements were not true, and I think that’s going to be very very difficult to prove.”

“You don’t necessarily bring a case like this because you expect to win, you bring a case like this because you want to tell your side of the story,” he added. “This is a very effective way to gets people to look at the case through their perspective rather than the perspective of Freddie Gray or the prosecution. In terms of the invasion of privacy claim, that’s going to get them nowhere.”

Maxwell Chibundu, a University of Maryland Francis King Carey School of Law professor, echoed the idea that the case could be an effort to get their side of the story out to the public.

“A prosecutor’s mistaken belief, even if arguably motivated by a prosecutor’s desire for self-aggrandizement does not ordinarily override the protection afforded by the wide discretion allowed to the prosecutor,” Chibundu told TheDCNF. “Absent a gag order from a court, a prosecutor, as a public servant, has a good deal of leeway in informing the public of cases pending before her.”

Glass rejected the claim that the suit was for publicity, noting he had no press conference for the suit.

“The complaint was filed with a motion to seal the case,” he told TheDCNF. “The intent was, to the extent that it could’ve been a violation of the gag order, the intent was to comply with the gag order to the extent that it covered any civil action. It appeared that the press was honoring that motion until the Judge denied it [the seal]. If the intent was to draw attention to my clients or Ms. Mosby or Shariff Cogen then the case would not have been filed without an accompaniment to seal.”

Elena Weissmann contributed to this report.

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