Nero v. Mosby, CIVIL ACTION NO. MJG–16–1288

233 F.Supp.3d 463

Edward Michael NERO, et. al., Plaintiffs

v.Marilyn MOSBY, et. al., Defendants

Brian Scott Rice, Plaintiffs

v.Marilyn Mosby, et. al., Defendants

Alicia White, et. al., Plaintiffs

v.Marilyn Mosby, et. al., Defendants

CIVIL ACTION NO. MJG–16–1288

CIVIL ACTION NO. MJG–16–1304

CIVIL ACTION NO. MJG–16–2663

United States District Court, D. Maryland.

Signed January 27, 2017

Joseph Thomas Mallon, Jr., Mallon and McCool LLC, Baltimore, MD, Andrew J. Toland, III, Toland Law LLC, Sparks, MD, Brandy Ann Peeples, Law Office of Brandy A Peeples PC, Frederick, MD, David Ellin, Law Office of David Ellin PC, Reisterstown, MD, for Plaintiffs.

Ankush Nayar, Elise Marcela Balkin Ice, Office of the Attorney General of Maryland Karl Aram Pothier, State of Maryland Office of the Attorney General Department of Juvenile Services Jason Robert Foltin, Sara Elaine Gross, Baltimore City Law Department, Baltimore, MD, for Defendants.

CORRECTED ¹ MEMORANDUM AND ORDER RE: DISMISSAL MOTIONS

Marvin J. Garbis, United States District Judge

The Court has before it the following motions to dismiss² 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 INTRODUCTION ³

At about 9:15 in the morning of April 12, 2015 ("April 12"), Baltimore City Police Officers detained Freddie Carlos Gray, Jr. ("Gray"), a 25–year-old black man, and found on him a knife that had a spring or other device for opening or closing the blade (the "Knife"). Considering possession of the Knife to be a crime,⁴ 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 19,⁵ Gray died from a spinal cord injury sustained in the course of the events of the morning of April 12.

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

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

On May 1, an Application for Statement of Charges ("the Application")⁶ 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,⁷ that the accusations against the Six Officers were not an indictment of the entire police force,⁸ and that the actions of the Six Officers would not harm the working relationship between police and prosecutors.⁹

Mosby further called upon the public, including those who, themselves, "had experience[d] injustice at the hands of police officers" to be peaceful as the Six Officers were prosecuted.¹⁰ Mosby also said:

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

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

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

• Goodson with second degree depraved heart murder, involuntary manslaughter, second-degree negligent assault, manslaughter by vehicle by means of gross negligence, manslaughter by vehicle by means of criminal negligence, misconduct in office by failure to secure prisoner, and failure to render aid.

• Rice with involuntary manslaughter, assault in the second degree, assault in the second degree [sic], misconduct in office, and false imprisonment.

• Miller with intentional assault in the second-degree, assault in the second-degree negligent, misconduct in office, and false imprisonment.

• Nero with assault in the second degree intentional, assault in the second degree negligent, misconduct in office, and false imprisonment.

• White with manslaughter, involuntary manslaughter, second-degree assault, and misconduct in office.

• Porter with involuntary manslaughter, assault in the second degree, and misconduct in office.

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

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

Five of the Six Officers¹¹ (collectively referred to as "Plaintiffs") have filed the instant lawsuits against Mosby and Cogen:¹²

• Nero and Miller, (MJG–16–1288)¹³

• Rice, (MJG–16–1304)¹⁴

• White and Porter (MJG–16–2663).¹⁵ By the instant motions, Mosby and Cogen seek dismissal of 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)¹⁶ 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). When evaluating a 12(b)(6) motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. However, conclusory statements or a "formulaic recitation of the elements of a cause of action" will not suffice. Id. A complaint must allege sufficient facts to "cross 'the line between possibility and plausibility of entitlement to relief.' " Francis v. Giacomelli , 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).

Inquiry into whether a complaint states a plausible claim is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. Thus, if the well-pleaded facts contained within a complaint "do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Id. (quoting Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

Generally, a motion to dismiss filed under Rule 12(b)(6) cannot reach the merits of an affirmative defense. Goodman v. Praxair, Inc. , 494 F.3d 458, 464 (4th Cir. 2007). However, affirmative defenses are appropriate to consider at the Rule 12(b)(6) stage "when the face of the complaint clearly reveals ¹⁷ 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 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 Imprisonment¹⁸

b. Malicious Prosecution¹⁹

c. Abuse of Process²⁰

d. Defamation & Invasion of Privacy²¹

e. Conspiracy²²

2. Constitutional Claims

a. 42 U.S.C. § 1983 —Violation of the Fourth and Fourteenth Amendments²³

b. Violation of Maryland Declaration of Rights, Articles 24 and 26²⁴

3. Claims Against the State of Maryland²⁵

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 , 339 Md. 701, 664 A.2d 916, 927 (1995). "Rather, to the extent that the instigator acts maliciously to secure the warrant...