Above Photo: Protesters on the streets of Baltimore after the death in custody of a young black man, Freddie Gray. Photograph: Algerina Perna/AP
Two officers charged in the death of Freddie Gray are suing Baltimore State’s Attorney Marilyn Mosby for defamation and invasion of privacy.
Sgt. Alicia White and Officer William Porter, who are facing charges of involuntary manslaughter in the 25-year-old’s death last April, filed the lawsuit against Mosby, Baltimore sheriff’s office Maj. Sam Cogen and the state of Maryland on May 2, according to Baltimore Circuit Court records made public Wednesday.
The officers claim that Mosby and Cogen knew the statement of charges filed against the officers and other statements made by Mosby at a May 1, 2015, news conference announcing the charges “were false.”
“These among other statements were made not for the purpose of prosecuting crimes that had allegedly been committed by White and Porter, but rather for purposes of quelling the riots in Baltimore,” the suit alleges.
The officers had asked that the lawsuit be sealed to “avoid any suggestion” that they were “not complying with the spirit of” a gag order issued in their criminal cases by Circuit Judge Barry G. Williams, and to “avoid any additional pretrial publicity in connection with their upcoming criminal trials.” They said they had to file the lawsuit at this time because of statute of limitations concerns.
Judge Althea Handy on Wednesday denied the motion to seal the case, saying the officers had “failed to provide a special and compelling reason to preclude or limit inspection of the case record sufficient to overcome the presumption of openness” under Maryland law.
The lawsuit lists the officers’ attorney as Michael E. Glass, who could not be reached for comment.
A spokeswoman for the state’s attorney’s office declined to comment, citing a gag order on the criminal prosecution, and the sheriff’s office also declined to comment.
Legal experts expressed doubt that the lawsuit would be successful.
A. Dwight Pettit, who litigates civil cases in Baltimore but is not involved in this case, said prosecutors enjoy immunity from being sued “unless you can show some sort of malicious intent, which is a very steep burden.”
“It’s very unusual,” he said of the officers’ lawsuit. “The allegations would have to border on intentional conduct to cause them irreparable injury.”
Gray, 25, died last year from spinal injuries prosecutors say he suffered in the back of a police transport van, where he was shackled but unrestrained by a seat belt. His death sparked protests against police brutality, and his funeral was followed by rioting, looting and arson. Mosby announced charges against six Baltimore officers.
White, a supervisor, and Porter, a patrol officer, both face involuntary manslaughter and other charges. Prosecutors allege that they ignored Gray’s injuries and failed to secure him in a seat belt. The officers have said they believed Gray was simply being uncooperative.
Porter, whose first trial in December ended in a hung jury, is scheduled to be tried again starting Sept. 6. White’s trial is scheduled to begin Oct. 13.
Pettit said the fact that Porter’s case proceeded all the way to jury deliberations — with Williams denying motions to dismiss the charges outright or for a judgment of acquittal after the state rested its case — shows the charges had some merit in the eyes of the court. That will make it more difficult for White and Porter to successfully argue now that prosecutors knew the charges were unfounded, he said.
“They would have to prove that they were frivolous and without substance and that she knew the charges could not stand, and none of that has developed,” he said.
Civil attorney Joe Espo, who also is not involved in the case, said it that “doesn’t sound like it’s going to go anywhere.”
“She has the same constitutional rights as anyone to speak about matters of public concern, and, generally speaking, if you’re talking about somebody in the public eye, you need to show reckless disregard for the truth,” Espo said.
Mosby, who announced the charges one day after receiving the official police investigation into the incident, said that she had conducted her own independent investigation with the help of the sheriff’s office. Cogen signed and filed the initial charging documents in the case, outlining the state’s probable cause.
Attorneys for the officers have expressed skepticism about that investigation, saying evidence submitted to them through discovery provided little proof that any such investigation occurred.
They have previously accused Mosby of “overzealous prosecution,” saying she improperly discussed the charges when she announced them on the steps of the War Memorial, and asked her to recuse herself and her office citing conflicts of interest.
In their 26-page lawsuit, White and Porter ask for more than $75,000 in damages for each of four counts — two of defamation and two of invasion of privacy and casting them in a false light.
They say Mosby and Cogen had a duty not to criminally charge them “when such charges were unsupported by the facts and evidence,” as well as a duty “not to publish false statements” about them.
Through Mosby’s statements, they claim, their “character and reputation … were harmed, their standing and reputation in the Baltimore City Police Department and the community at large — locally, nationally, and internationally — were impaired, [and] they continue to suffer mental pain and anguish, and humiliation.”
The officers note that they were placed on administrative leave without pay by the Police Department and “have suffered, and continue to suffer, monetary damages in the form of lost income, lost raises in salary, and lost promotions.”
They claim that Mosby violated professional rules of conduct by offering extrajudicial statements during her announcement of the charges against the officers on May 1, and “knew or should have known” that she was doing so.
The officers have demanded a jury trial in the case.