Baltimore-OfficersIn Update 34.6, Challenging A Social Justice NarrativeI noted that Sgt. Alicia White and Officer William Porter have sued Baltimore Prosecutor Marilyn Mosby and Baltimore SO Major Sam Cogen for defamation and invasion of privacy. I also noted that the judge hearing that case did not agree that it should be sealed, so that civil suit, the evidence in which is identical to the evidence in the criminal prosecutions of the officers, is open to the public–something that must have the prosecutors screaming in impotent rage. There is more about this development, but first let’s revisit Update 26.4, The Defense Rests. 

By filing unwarranted and impossible to prove charges against six BPD officers for political reasons, Marilyn Mosby has caused enormous, perhaps irreparable damage to the relationship between Baltimore prosecutors and the police, to say nothing about damage between City Hall and the police. I wrote:

But this is far from the only potential damage. Ethical prosecutors file charges against the police only after careful and professional deliberation. They understand that the police will not only forgive, but support, them if they prosecute corrupt cops, but if they unnecessarily prosecute honest police officers, if they prosecute, and worse, convict them for nothing more than the reasonable exercise of their professional discretion, they will utterly destroy their relationship with the police department. What officer can possibly trust them in the future? To be sure, officers will still do their jobs to at least the minimum standard, but losing the support, friendly aid, and even the protection of the police is a very destructive and dangerous thing, not just for individual prosecutors, but for the safety of the public.

In the Freddie Gray case, the damage has already been done. The BPD rank and file will not trust prosecutors for a very long time, long after Marilyn Mosby is a bad memory. All that remains to be determined is the depth and ferocity of the animosity the prosecution continues to build in BPD officers.

This prosecution has also pitted working police officers against their own brass, their supervisors and administrative officers. There is always conflict there, but in this case, any supervisor or administrator that obviously supports Mosby, the Mayor, or social justice politicians, will be seen as the enemy for as long as they have any position in public service. This is why Captain Reynolds’ testimony is so potentially powerful and convincing. He is directly at odds with the politicians that run the BPD. Most higher-ranking officers are politicians first and police officers a distant second. Lines will be drawn, alliances made.

The net effect of this will be officers that believe–and they will have more than sufficient evidence to believe it–they cannot trust their supervisors and leaders, the politicians that run Baltimore, and the prosecutors. Accordingly, most BPD officers will slide even more deeply under the radar. They will take no chances, they will cease being proactive, they will do the minimum, and absolutely avoid contact with anyone they perceive to be a member of a politically favored victim group.

Officers driving vans will not drive an inch without demanding that every prisoner be buckled in, which will require calling multiple officers to manhandle every resisting prisoner to avoid injury to anyone. At the slightest hint, ridiculous or not, of so much as a hangnail, they will demand assessment by supervisors and demand that they immediately transport prisoners to the hospital, which will take vans off the street for hours, tying up not only multiple officers, but medical personnel. They would be fools to do otherwise. They will also begin videotaping–using their own smart phones, cameras, etc., any and all such situations, which will also require additional police manpower.

Baltimore politicians are about to get the social justice they crave. They’re probably too stupid to recognize the damage they will have done, and too venal to do anything about it, but the public will, eventually, get the message. They won’t like it, if they survive.

Criminals? They’re going to think they died and went to criminal heaven.

The update referred to the trial of Officer Porter, which ended in a mistrial and is now scheduled to be re-tried. Since then, Officer Edward Nero was acquitted on all charges. It should also be noted that any higher-ranking officer that testifies against any of the six officers would be wise to retire. In major urban agencies, such things are never forgotten or forgiven. Life can become very uncomfortable, even dangerous, for such people.

The Daily Caller reports on additions to White and Porter’s suit:

Michael Glass, the lawyer for the officers in the suit, told The DCNF [Daily Caller News Foundation] that he plans to amend the lawsuit to include ‘likely a count of malicious prosecution, false arrest, false imprisonment, violation of the Maryland declaration of rights, article 24 and 26.’ He said they’re currently working on modifying the complaint, and the changes will be official in the next few weeks, likely by the end of June.

‘These six officers were essentially sacrificed,’ Glass told The DCNF. ‘Alicia White, she’s accused of murder, she never touched Mr. Gray.

credit: time.com

credit: time.com

This is a difficult case to win, as I originally noted. Immunity for Cogen, and particularly Mosby, is a high obstacle to overcome, and defamation is generally hard to prove.

Major Sam Cogen credit: baltimorecity.org

Major Sam Cogen
credit: baltimorecity.org

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 The DCNF. ‘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.

I suspect Gifford means the case is not impossible to win.

The officers argue that during the press conference announcing the charges, Mosby revealed her false motives. Mosby raised eyebrows by appealing to the angry residents of Baltimore, many who had just protested and rioted in the last few days. ‘I heard your calls for, ‘No Justice, No peace,’ she said. ‘Your peace is sincerely needed as I work to deliver justice on behalf of this young man.’

Glass argues that when Mosby used this rhetoric and filed charges to quell the riots, she acted outside of her role as a prosecutor and thus should not be protected by the immunity usually due to the position. He said he believes new facts obtained through the discovery process will reveal damning conversations exposing the motives behind charging the officers.

Glass suggested reasons other than financial compensation for filing the suit:

We believe there were certain communications among some pretty key players that suggest that these charges were brought not based on the evidence but based on an agenda which was to quell the riots at a time when there was a lot of unrest and it was a pretty volatile situation,’ Glass told The DCNF.

Glass also said the officers may bring a 1983 action, a federal statute that says anybody who operates under the state’s ‘color of law’ to deprive a person of their civil rights can be charged. The 1983 action is often used against police officers who shot suspects under questionable circumstances, but it could be used against a prosecutor. Banzhaf told The DCNF the additional causes of action may increase the viability of the suit.

‘The false imprisonment, malicious prosecution and 1983 are the more typical causes of action that would arise in that situation, and in that sense they may be more likely to be adopted by the judge because they are typical,’ he said. ‘If you bring some kind of novel action, novel theory, sometimes judges don’t quite know what to do so in that sense it may be more likely to succeed.

A 1983 action refers to US code, which means such a case would be filed and heard in federal rather than state court. Banzhaf also suggests one of Glasses’ probable primary tactics:

Banzhaf told The DCNF the suit may target both Cogen and Mosby to pressure them to give up information about one another. He said the suit could be to get one defendant to turn on the other.

As I previously noted, Cogen is likely the most vulnerable in this suit. He probably acted, politically, on orders from Mosby. With sufficient pressure, which would surely include depositions, he may spill the beans that would make it possible to win against Mosby. Another possibility is that this may encourage Mosby to drop the prosecutions in exchange for dropping the civil suits.

The Baltimore Sun reports that things have become even worse for Mosby and Cogen:

Court records show Officers Edward Nero, who was acquitted of all charges last month, and Garrett Miller filed a joint suit against Mosby and Sheriff’s Office Maj. Samuel Cogen on April 29. The case was unsealed Tuesday.

The suit alleges false arrest and false imprisonment, defamation, and violation of constitutional rights, and claims Mosby and Cogen knowingly filed false charges against the officers ‘in furtherance of [their] own personal interests and political agenda.’

‘Their illegal arrests were made without probable cause and demonstrated ill will, improper motivation and/or evil purpose,’ attorney Joseph Thomas Mallon Jr. wrote.

credit: patdollard.com

credit: patdollard.com

The lack of probable cause for the arrests of the officers will be easily proved by the entirely defective, even laughable, PC statements sworn by Major Cogen, as I noted in Update 5: Probable Causeless.  Not only were the PC statements virtually identical for every officer, they did not come close to proving the elements of the multitude of crimes charged. For virtually every element, there was no proof offered. Mosby’s statements and actions will surely demonstrate her political motivations.

And it that’s not bad enough for Mosby and Cogen, The Political Insider reports:

Lt. Brian Rice, one of six Baltimore officers charged in the Gray case, filed his lawsuit in U.S. District Court in Maryland on May 2, the same day two of the other officers — Sgt. Alicia White and Officer William Porter — filed a joint defamation lawsuit against Mosby in state Circuit Court. Documents in Rice’s case were first unsealed on Monday.

Like White and Porter, whose lawsuit was unsealed in state court late last month, Rice is also suing Baltimore sheriff’s office Maj. Sam Cogen, who signed off on the charging documents in the Gray case. Also like White and Porter, Rice claims in his lawsuit that Mosby and Cogen knew that he had committed no crime when they brought charges against him — including manslaughter, second-degree assault, reckless endangerment and misconduct in office.

‘His illegal arrest was made without probable cause and demonstrated ill will, improper motivation and/or evil purpose,’ Rice’s lawsuit says.

Rice seeks in excess of $75,000 in compensatory damages and in excess of $75,000 in punitive damages from both Mosby and Cogen for each of five counts — false arrest, false imprisonment, violation of his rights under the Maryland Declaration of Rights, violations of his federal civil rights, and defamation of character. He also seeks legal fees.

In any such litigation, the process is the punishment. Not only is Mosby now on the defensive, she–and particularly Cogen–will have to anticipate discovery, which in this case will surely demonstrate the political, rather than professional and lawful, motivations of the prosecutions. There is no probable cause for the arrests of the officers, just as they have alleged. Virtually everything careful, professional police officers and prosecutors should have done in such a case was not done. That doesn’t leave much of a defense.

It couldn’t happen to nicer people.

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