Edward Nero v. Marilyn Mosby

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-1166

EDWARD MICHAEL NERO; GARRETT EDWARD MILLER,

Plaintiffs – Appellees,

v.

MARILYN J. MOSBY,

Defendant – Appellant,

and

MAJOR SAMUEL COGEN,

Defendant.

No. 17-1168

BRIAN SCOTT RICE,

Plaintiff – Appellee,

v.

MARILYN J. MOSBY,

Defendant – Appellant,

and

MAJOR SAMUEL COGEN,

Defendant.
 No. 17-1169

ALICIA WHITE; WILLIAM PORTER,

Plaintiffs – Appellees,

v.

MARILYN J. MOSBY,

Defendant – Appellant,

and

MAJOR SAMUEL COGEN; STATE OF MARYLAND,

Defendants.

Appeals from the United States District Court for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge. (1:16-cv-01288-MJG; 1:16-cv-01304-MJG; 1:16-
cv-02663-MJG)

Argued: December 6, 2017 Decided: May 7, 2018

Before GREGORY, Chief Judge, WILKINSON and HARRIS, Circuit Judges.

Reversed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge
Wilkinson and Judge Harris joined. Judge Wilkinson wrote a concurring opinion.

ARGUED: Karl Aram Pothier, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellant. Andrew James Toland, III, TOLAND
LAW, LLC, Sparks, Maryland; Brandy Ann Peeples, LAW OFFICE OF BRANDY A.
PEEPLES, Frederick, Maryland, for Appellees. ON BRIEF: Brian E. Frosh, Attorney
General, Michael O. Doyle, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant. Joseph T. Mallon, Jr.,
MALLON & MCCOOL, LLC, Baltimore, Maryland, for Appellees Edward Michael Nero

2
and Garrett Edward Miller. David Ellin, LAW OFFICE OF DAVID ELLIN PC,
Reisterstown, Maryland, for Appellee Brian Scott Rice. Michael E. Glass, THE
MICHAEL GLASS LAW FIRM, Baltimore, Maryland, for Appellees Alicia White and
William Porter.

3
GREGORY, Chief Judge:

Freddie Gray, Jr., suffered fatal injuries while handcuffed and shackled in the

custody of the Baltimore City Police Department. The Baltimore State’s Attorney’s Office,

led by State’s Attorney Marilyn Mosby, conducted an investigation into Gray’s death.

After the State Medical Examiner ruled Gray’s death a homicide, Major Samuel Cogen of

the Baltimore City Sheriff’s Office criminally charged six of the police officers involved

in Gray’s arrest and detention. The same day, State’s Attorney Mosby announced the

charges and read the supporting probable-cause statement to the public at a press

conference. A grand jury subsequently indicted the officers on substantially similar counts,

but ultimately, none was convicted.

Five of the charged officers—Officer Edward Michael Nero, Officer Garrett

Edward Miller, Lieutenant Brian Scott Rice, Officer William Porter, and Sergeant Alicia

White (“Officers”) 1—now seek to make State’s Attorney Mosby stand trial for malicious

prosecution, defamation, and false light invasion of privacy. They claim that her role in

independently investigating their conduct strips her of absolute prosecutorial immunity and

that their bare allegations of malice or gross negligence overcome Maryland’s statutory

immunity protections. We resoundingly reject the invitation to cast aside decades of

Supreme Court and circuit precedent to narrow the immunity prosecutors enjoy. And we

find no justification for denying Mosby the protection from suit that the Maryland

legislature has granted her.

1
The sixth officer charged, Officer Caesar Goodson, Jr., is not a party to this case.
4
 I.

A.

Because this appeal comes to us at the motion-to-dismiss stage, we recount the facts

as alleged by the Officers and must accept them as true for purposes of this appeal. See

Jackson v. Lightsey, 775 F.3d 170, 173 (4th Cir. 2014).

The morning of April 12, 2015, Lieutenant Rice encountered Freddie Gray, Jr., and

another person walking along North Avenue in Baltimore City. After making eye contact

with Rice, Gray and his companion ran. Rice pursued them and called for backup. Officers

Miller and Nero responded; Miller chased Gray, and Nero chased Gray’s companion.

While pursuing Gray, Miller yelled that he had a taser and instructed Gray to get on the

ground. Gray voluntarily surrendered with his hands up. Miller brought him to the ground

and handcuffed him in a prone position. When Miller searched Gray, he found a knife and

informed Gray that he was under arrest.

A police van arrived to transport Gray to the police station. Nero, who had failed

to apprehend Gray’s companion, and another officer placed Gray inside. Because a crowd

of citizens was forming, the van and the officers—including Rice, Miller, Nero, and Officer

Porter, who had arrived on the scene—reconvened one block south to complete the

paperwork for Gray’s arrest. At this second stop, Rice and Miller removed Gray from the

van, replaced his handcuffs with flex cuffs, shackled his legs, and placed him back in the

van. The van departed, and the officers returned to their patrol duties.

Shortly thereafter, Porter received a call from the van driver requesting assistance

at another location several blocks away. Porter met the van at this third location, assisted

5
the driver with opening the van’s rear doors, and observed Gray lying prone on the floor

of the van. Gray asked for medical assistance. Porter informed the driver that Gray should

be taken to the hospital, and then he left.

Meanwhile, Miller and Nero returned to North Avenue, where they arrested another

person and called for a police van and additional units. The van carrying Gray responded

to this fourth location, as did Porter and Sergeant White, who had already “received

supervisor complaints” about Gray’s arrest. J.A. 169. The second arrestee was placed in

the van. Gray again communicated to Porter that he wanted medical assistance. White

separately attempted to speak with Gray, but Gray did not respond. Porter and White

returned to their vehicles and followed the van to the Western District police station.

At the police station, Gray was found unconscious in the back of the van. An officer

rendered emergency assistance, and Porter called a medic. White confirmed that a medic

was en route. Gray was taken to the University of Maryland Shock Trauma Unit, where

he died due to a neck injury on April 19, 2015. The State Medical Examiner ruled Gray’s

death a homicide.

On May 1, 2015, Major Cogen executed an application for Statement of Charges

for each of the five Officers, plus the driver of the van. Each application contained the

same affidavit, sworn by Major Cogen, reciting the facts supporting probable cause. The

affidavit explained that Rice, Miller, and Nero illegally arrested Gray without probable

cause because the knife found on him was legal: “The blade of the knife was folded into

the handle. The knife was not a switchblade knife and is lawful under Maryland law.” J.A.

35. The affidavit further stated that the officers repeatedly failed to seatbelt Gray in the

6
back of the van, contrary to a Baltimore City Police Department General Order. It noted

that Porter observed Gray on the floor of the van, but “[d]espite Mr. Gray’s seriously

deteriorating medical condition, no medical assistance was rendered to or summonsed for

Mr. Gray at that time.” J.A. 37. And, the affidavit asserted, “White, who was responsible

for investigating two citizen complaints pertaining to Mr. Gray’s illegal arrest, spoke to the

back of Mr. Gray’s head. When he did not respond, she did nothing further despite the fact

that she was advised that he needed a medic. She made no effort to look, assess or

determine his condition.” J.A. 37.

A Maryland district court commissioner approved the applications and issued

warrants for the Officers’ arrests. Nero and Miller were each charged with two counts of

assault in the second degree, two counts of misconduct in office, and false imprisonment.

Rice was charged with manslaughter, two counts of assault in the second degree, two

counts of misconduct in office, and false imprisonment. Porter and White were each

charged with manslaughter, assault in the second degree, and misconduct in office.

Later that day, State’s Attorney Mosby held a press conference to announce the

charges and call for an end to the riots that had erupted in Baltimore following Gray’s

death. She told the public, “The findings of our comprehensive, thorough and independent

investigation, coupled with the medical examiner’s determination that Mr. Gray’s death

was a homicide . . . has led us to believe that we have probable cause to file criminal

charges.” J.A. 29. She then read the full statement of probable cause verbatim.

During the press conference, Mosby emphasized that she and her office

independently investigated Gray’s death:

7
 It is my job to examine and investigate the evidence of each case and apply
those facts to the elements of a crime, in order to make a determination as to
whether individuals should be prosecuted. . . . [I]t is precisely what I did in
the case of Freddie Gray.

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. . . . [M]y 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 by the police
department, the community and family of Mr. Gray.

J.A. 29. Mosby concluded her speech by calling for peace in Baltimore as she moved

forward with the charges:

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. . . .

[T]o 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. You’re at the forefront of this cause and as young people, our time is
now.

J.A. 32‒33.

On May 21, 2015, a grand jury indicted all six officers on charges substantially

similar to those listed in the Statements of Charges. Porter was tried before a jury, and

after the jury could not reach a unanimous verdict, the judge declared a mistrial. Nero and

Rice underwent bench trials, and the judge ultimately found them not guilty on all counts.

Thereafter, Mosby dismissed all outstanding charges against Miller, White, and Porter.

8
 B.

While the criminal charges against all of the Officers were still pending, the Officers

sued State’s Attorney Mosby. The Officers claimed that she violated their rights by

bringing charges without probable cause and defamed the Officers by making false

accusations against them at the May 1, 2015 press conference. 2 The Officers filed three

separate suits—one brought by Nero and Miller in the district court; one brought by Rice,

also in the district court; and one brought by Porter and White in state court but removed

to the district court. The district court consolidated the three cases. The Officers alleged,

in relevant part, a 28 U.S.C. § 1983 claim for malicious prosecution under the Fourth

Amendment, a claim for malicious prosecution under Article 26 of the Maryland

Declaration of Rights, and common-law claims for malicious prosecution, defamation, and

false light invasion of privacy. 3

Mosby moved to dismiss the Officers’ claims, asserting various immunities. She

asserted absolute prosecutorial immunity, or alternatively qualified immunity, for the

§ 1983 malicious-prosecution claim; absolute prosecutorial immunity under Maryland

common law and statutory immunity under the Maryland Tort Claims Act (MTCA) for the

state malicious-prosecution claims; and MTCA immunity and common-law public-official

2
The Officers also sued Major Cogen and the State of Maryland, but because neither
is a party to this appeal, we need not address the claims against them here.
3
The complaints also alleged claims for unreasonable seizure under the Fourteenth
Amendment and Article 24 of the Maryland Declaration of Rights, false arrest, false
imprisonment, abuse of process, and civil conspiracy; however, the district court dismissed
these counts for failure to state a claim, and the Officers do not challenge that decision on
appeal.
9
immunity for the defamation and false-light claims. Mosby further argued that the Officers

failed to state claims on which relief could be granted.

After a hearing, the district court allowed the three malicious-prosecution claims,

the defamation claim, and the false-light claim to proceed. Nero v. Mosby, 233 F. Supp.

3d 463, 489 (D. Md. 2017). The court held that, although Mosby was entitled to absolute

immunity for her conduct before the grand jury, she was not entitled to absolute immunity

for any of her actions prior to convening the grand jury. Id. at 483‒86. The court further

concluded that the Officers had pled sufficient facts to overcome Mosby’s qualified-

immunity and MTCA-immunity defenses to the malicious-prosecution claims at the

motion-to-dismiss stage. Id. at 486‒88. And the court determined that Mosby was not

entitled to any conditional privileges for the defamation and false-light claims. Id. at 478‒

80. The court did not expressly address Mosby’s immunity defenses to these latter two

claims.

Mosby timely appealed. She challenges the district court’s denial of immunity for

the § 1983 malicious-prosecution claim, the denial of immunity for the state malicious-

prosecution claims, and the failure to grant immunity for the defamation and false-light

claims. We address each challenge in turn.

II.

We begin with the Officers’ § 1983 malicious-prosecution claim and State’s

Attorney Mosby’s assertion of absolute prosecutorial immunity. We have jurisdiction to

review the district court’s denial of absolute immunity for this claim pursuant to 28 U.S.C.

10
§ 1291 and the collateral order doctrine. See Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982);

Gray-Hopkins v. Prince George’s County, 309 F.3d 224, 229 (4th Cir. 2002). We review

denials of absolute immunity de novo. See Goldstein v. Moatz, 364 F.3d 205, 211 (4th Cir.

2004).

A.

Absolute immunity protects “the vigorous and fearless performance of the

prosecutor’s duty” that is so essential to a fair, impartial criminal justice system. Imbler v.

Pachtman, 424 U.S. 409, 427‒28 (1976). As representatives of the people, prosecutors

have a responsibility to enforce the laws evenhandedly and to exercise independent

judgment in seeking justice. See id. at 423‒24. “The public trust of the prosecutor’s office

would suffer if he were constrained in making every decision by the consequences in terms

of his own potential liability in a suit for damages.” Id. at 424‒25. No matter how

conscientious a prosecutor may be, “a defendant often will transform his resentment at

being prosecuted into the ascription of improper and malicious actions to the State’s

advocate.” Id. at 425. Without immunity from suit, this threat of retaliatory litigation

would predispose prosecutors to bring charges based not on merit but on the social or

political capital of prospective defendants. See id. at 438 (White, J., concurring) (“[T]he

fear of being harassed by a vexatious suit, for acting according to their consciences would

always be greater where powerful men are involved.” (internal quotation marks omitted)).

The protection that absolute immunity affords “is not grounded in any special

‘esteem for those who perform [prosecutorial] functions, and certainly not from a desire to

shield abuses of office.’” Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (quoting Malley v.

11
Briggs, 475 U.S. 335, 342 (1986)). Rather, it stems from courts’ recognition that “any

lesser degree of immunity could impair the judicial process itself.” Id. (quoting Malley,

475 U.S. at 342).

Because absolute immunity safeguards the process, not the person, it extends only

to actions “intimately associated with the judicial phase of the criminal process.” Imbler,

424 U.S. at 430‒31. All other actions are entitled only to qualified immunity. Buckley v.

Fitzsimmons, 509 U.S. 259, 273 (1993). To determine whether a particular act is

“intimately associated with the judicial phase,” Imbler, 424 U.S. at 430, we employ a

functional approach. We look to “the nature of the function performed,” without regard to

“the identity of the actor who performed it,” “the harm that the conduct may have caused,”

or even “the question whether it was lawful.” Buckley, 509 U.S. at 269, 271 (internal

quotation marks and citation omitted). The official claiming absolute immunity “bears the

burden of showing that such immunity is justified for [each] function in question.” Burns

v. Reed, 500 U.S. 478, 486 (1991).

In applying this functional approach, the Supreme Court has distinguished between

advocative functions and investigative or administrative functions, holding that the former

enjoy absolute immunity but the latter do not. See Kalina, 522 U.S. at 125‒26. A

prosecutor acts as an advocate when she professionally evaluates evidence assembled by

the police, Buckley, 509 U.S. at 273, decides to seek an arrest warrant, Kalina, 522 U.S. at

130, prepares and files charging documents, id., participates in a probable cause hearing,

Burns, 500 U.S. at 492, and presents evidence at trial, Imbler, 424 U.S. at 431. In contrast,

a prosecutor does not act as an advocate, but rather in an investigative or administrative

12
capacity, when she gives legal advice to police during an investigation, Burns, 500 U.S. at

493, investigates a case before a probable cause determination, Buckley, 509 U.S. at 274,

and personally attests to the truth of averments in a statement of probable cause, Kalina,

522 U.S. at 129.

B.

Mosby’s alleged wrongs fall squarely under the umbrella of absolute immunity.

Mosby correctly argued that the specific conduct the Officers challenge was within her role

as an advocate. Therefore, the district court should have dismissed the § 1983 malicious-

prosecution claim.

1.

The gravamen of the Officers’ complaints is that Mosby and her office conducted

an investigation into Gray’s death, and despite finding no evidence of criminal

wrongdoing, Mosby either instructed Cogen to file false charges or erroneously advised

him that probable cause supported the charges. The Officers contend that Mosby brought

charges against them “for the purpose of stopping the riots rather than prosecuting charges

supported by probable cause.” J.A. 183.

The Officers also allege that Mosby misrepresented facts in the applications for

Statement of Charges that Cogen executed and filed. They claim that Mosby included false

information—e.g., that the knife found on Gray was legal, that the Officers’ failure to

seatbelt Gray was a crime, and that the Officers were aware Gray was in medical distress

prior to arriving at the police station. And they claim that she omitted key facts—e.g., that

the second arrestee placed in the police van reported Gray was conscious and banging his

13
head against the wall, that another officer observed Gray was not in medical distress, and

that the medics who examined Gray at the police station reported his neck was normal.

At bottom, the Officers take issue with Mosby’s decision to prosecute them and her

role in preparing the charging documents.

2.

These claims are barred by settled Supreme Court and circuit precedent. In Kalina,

the Supreme Court held that a prosecutor’s “selection of the particular facts to include in

the certification” of probable cause, “her drafting of the certification, her determination

that the evidence was sufficiently strong to justify a probable-cause finding, her decision

to file charges, and her presentation of the information” to the court are all entitled to

absolute immunity. 522 U.S. at 130. And, in Springmen, we held that a Maryland Assistant

State’s Attorney enjoyed absolute immunity for reviewing an application for Statement of

Charges prepared by a police officer and for advising the officer that the facts were

sufficiently strong to proceed with filing the application. Springmen v. Williams, 122 F.3d

211, 212 (4th Cir. 1997).

We see no material difference between the conduct protected in Kalina and

Springmen and the acts the Officers allege here. Mosby’s assessment of the evidence—

the knife, the failure to seatbelt Gray, information regarding what the Officers knew about

Gray’s medical condition before finding him unconscious—and her conclusion that it

supported probable cause mirror the prosecutor’s “determination” in Kalina “that the

evidence was sufficiently strong to justify a probable-cause finding.” See 522 U.S. at 130.

Mosby’s alleged instruction to Cogen to file charges against the Officers is tantamount to

14
a “decision to file charges” under Kalina. See id. And that decision is absolutely immune

regardless of its motivation. See id.; Buckley, 509 U.S. at 271. Mosby’s advice to Cogen

that there was probable cause to charge the Officers is indistinguishable from that in

Springmen, where the Assistant State’s Attorney advised a police officer that the facts in

an application for Statement of Charges were sufficient to warrant filing. See 122 F.3d at

212. And, assuming Mosby helped write the application here, both her characterization of

the facts and her decision to provide some facts while omitting others fall within Kalina’s

“drafting of the certification” of probable cause and “selection of the particular facts to

include.” See 522 U.S. at 130.

We reject the argument, as we did in Springmen, that providing legal advice to

police is never entitled to absolute immunity. See 122 F.3d at 213‒14. To be sure, the

Supreme Court held in Burns that “advising police in the investigative phase of a criminal

case” is not “so intimately associated with the judicial phase of the criminal process that it

qualifies for absolute immunity.” 500 U.S. at 493 (emphasis added) (internal quotation

marks and citation omitted). But the Court has not retreated from the principle that “acts

undertaken by a prosecutor in preparing for the initiation of judicial proceedings”—

including “the professional evaluation of the evidence assembled by the police”—are

absolutely immune. Buckley, 509 U.S. at 273. Where, as here, plaintiffs allege that a

prosecutor initiated charges against them by informing a police officer that the evidence

gathered amounted to probable cause and directing the officer to file charges, the

prosecutor is entitled to absolute immunity. Springmen, 122 F.3d at 213‒14.

15
 We also reject the Officers’ argument that Mosby’s involvement in the investigation

of Gray’s death strips her of absolute immunity. Certainly, prosecutors enjoy only

qualified immunity for their actions before securing probable cause for an arrest. Buckley,

509 U.S. at 274. And Mosby apparently began investigating before she had probable cause.

See J.A. 29 (“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.”). But conducting an investigation is not actionable—in fact, it was

Mosby’s responsibility to investigate—and the Officers make no specific allegation that

Mosby engaged in misconduct during that investigation. 4

To the extent the Officers ask us to create a new rule that participation in an

investigation deprives a prosecutor’s subsequent acts of absolute immunity, we balk at the

proposition. Such a rule would not only upend the functional approach that the Supreme

Court has articulated and applied for decades, see Buckley, 509 U.S. at 269‒70, but it would

effectively eliminate prosecutorial immunity in police-misconduct cases. Most

jurisdictions, including Baltimore, charge prosecutors with independently investigating

cases of criminal behavior by police. 5 Per the Officers’ theory, whenever a prosecutor

4
The Officers claimed that the State’s Attorney’s Office “manipulated evidence to
facilitate [the] indictments,” J.A. 176, that “Mosby created false facts and omitted material
facts,” J.A. 179, and that she “conduct[ed] a bogus and sham investigation,” J.A. 179. But,
absent specific supporting facts, these conclusory allegations are “not entitled to be
assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).
5
See J.A. 29; see generally Isaac G. Lara, Note, Shielded from Justice: How State
Attorneys General Can Provide Structural Remedies to the Criminal Prosecutions of
Police Officers, 50 Colum. J.L. & Soc. Probs. 551 (2017) (discussing models states have
adopted to investigate police shootings).
16
takes on one of these cases, her actions—even those intimately tied to the judicial phase—

no longer enjoy absolute immunity. This approach torpedoes the fundamental premise of

absolute prosecutorial immunity: ensuring a fair, impartial criminal justice system, in

which prosecutors have the independence to hold even powerful wrongdoers accountable

without fear of vexatious litigation. See Imbler, 424 U.S. at 424‒25; id. at 438 (White, J.,

concurring). And we refuse to sanction it. When determining whether a prosecutor is

entitled to absolute immunity, we look at the specific act challenged, not the prosecutor’s

preceding acts. See Burns, 500 U.S. at 487 (noting that “it is important to determine the

precise claim” that plaintiff made concerning defendant’s conduct).

For the foregoing reasons, Mosby’s absolute-immunity defense plainly defeats the

Officers’ § 1983 claim. Holding otherwise would require us to rewrite the doctrine of

absolute prosecutorial immunity. This we will not do.

III.

Having determined that State’s Attorney Mosby is entitled to absolute immunity for

the Officers’ § 1983 claim, we turn to the Officers’ state malicious-prosecution claims,

brought under the Maryland Declaration of Rights and Maryland common law. Mosby

asserted Maryland common-law absolute prosecutorial immunity and MTCA immunity,

but the district court denied both defenses. Nero, 233 F. Supp. 3d at 483‒87. The Officers

argue that we lack jurisdiction over this aspect of the district court’s decision. We disagree

and further conclude that Mosby’s absolute-prosecutorial-immunity defense bars both state

17
malicious-prosecution claims. Because we dispose of these claims on common-law

immunity grounds, we need not reach whether Mosby is also entitled to MTCA immunity.

A.

Our jurisdiction is limited to appeals “from final decisions of the district courts.”

28 U.S.C. § 1291. Although the denial of a motion to dismiss is generally not a “final”

judgment, the collateral order doctrine renders such an order final for purposes of our

jurisdiction in certain narrow circumstances. See Gray-Hopkins, 309 F.3d at 229.

Specifically, we have jurisdiction over an order if “it conclusively determines the disputed

question, resolves an important issue completely separate from the merits of the action, and

would be effectively unreviewable on appeal from a final judgment.” Id. (citing Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)).

Orders denying immunity often fall within the collateral order doctrine. See, e.g.,

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (federal qualified immunity); Nixon, 457

U.S. at 742 (federal absolute immunity). But “[o]nly a claimed immunity from suit, not a

mere defense to liability,” satisfies the doctrine’s requirements and thus can provide a basis

for our jurisdiction. Davis v. City of Greensboro, 770 F.3d 278, 281 (4th Cir. 2014)

(internal quotation marks omitted). Unlike a defense to liability, which confers only a right

not to pay damages, an immunity from suit confers a right not to bear the burdens of

litigation and cannot be “effectively vindicated” after litigation. See Mitchell, 472 U.S. at

525‒27. To determine the nature and scope of an asserted state-law immunity, we look to

state substantive law. Davis, 770 F.3d at 281.

18
 Here, Maryland law indicates that the state’s common-law absolute prosecutorial

immunity confers a right to be free from litigation. In Gill v. Ripley, the Maryland Court

of Appeals adopted the U.S. Supreme Court’s rule that prosecutors enjoy absolute

immunity in suits for conduct intimately related to the judicial process. 724 A.2d 88, 96

(Md. 1999). The court recognized that prosecutorial immunity “arose initially as an adjunct

to the doctrine of judicial immunity,” id. at 91, which was established “to forestall endless

collateral attacks on judgments through civil actions against the judges themselves,” id. at

91‒92 (quoting Parker v. State, 653 A.2d 436, 443 (Md. 1995)). The court noted that

absolute prosecutorial immunity was based on the same considerations, including “concern

that harassment by unfounded litigation would cause a deflection of the prosecutor’s

energies from his public duties, and the possibility that he would shade his decisions instead

of exercising the independence of judgment required by his public trust.” Id. at 94 (quoting

Imbler, 424 U.S. at 422‒23). Accordingly, the court concluded that absolute immunity

was necessary to protect prosecutors’ decision making “from the harassment and

intimidation associated with litigation”—not just damages liability. See id. at 95 (quoting

Burns, 500 U.S. at 494) (emphasis added). 6

For these reasons, before Gill was decided, the Supreme Court had deemed absolute

prosecutorial immunity a “complete protection from suit.” Harlow v. Fitzgerald, 457 U.S.

800, 807 (1982); accord Mitchell, 472 U.S. at 525 (“[T]he essence of absolute immunity

6
Prior to Gill, Maryland courts had stated in passing that “judges have an absolute
privilege from suits arising out of their judicial acts,” and “[p]rosecutors in judicial
hearings are afforded the same privilege.” Simms v. Constantine, 688 A.2d 1, 7 n.2 (Md.
App. 1997) (quoting Eliason v. Funk, 196 A.2d 887, 889‒90 (Md. 1964)).
19
is its possessor’s entitlement not to have to answer for his conduct in a civil damages

action.”). And the Gill court endorsed the Supreme Court’s prosecutorial-immunity

doctrine without qualification: “There is no reason to depart from [the Supreme Court’s]

approach with respect to prosecutorial immunity.” Gill, 724 A.2d at 96. Thus, we see no

reason to construe the nature of absolute prosecutorial immunity under Maryland common

law differently than the same immunity under federal common law.

We recognize that the denial of absolute prosecutorial immunity would not be

immediately appealable under Maryland’s collateral order doctrine. See Md. Bd. of

Physicians v. Geier, 154 A.3d 1211, 1228‒29 (Md. 2017) (holding that denial of quasi-

judicial immunity did not satisfy Maryland’s collateral order doctrine); Dawkins v. Balt.

City Police Dep’t, 827 A.2d 115, 122 (Md. 2003) (stating that denial of any immunity

asserted by government official other than “Governor, Lieutenant Governor, Comptroller,

Treasurer, Attorney General, Speaker of the House, President of the Senate, or judges” is

not appealable under Maryland’s collateral order doctrine). But Maryland’s collateral

order doctrine does not apply in federal court. We apply federal procedural rules—here,

the federal collateral order doctrine—and look to state law only to determine whether the

claimed immunity is an immunity from suit, versus an immunity from liability. Gray-

Hopkins, 309 F.3d at 231 (“In determining whether appellate jurisdiction exists[,] the

parties in a federal action such as this one involving pendent state claims, are bound by

federal procedural rules governing appeals, including the collateral order doctrine. We

must look to substantive state law, however, in determining the nature and scope of a

claimed immunity.” (internal quotation marks, citations, and alterations omitted)). Given

20
the Court of Appeals’ discussion in Gill v. Ripley regarding absolute prosecutorial

immunity, we are confident Maryland courts would hold that such immunity is an

immunity from suit. See 724 A.2d at 94‒96.

In arguing otherwise, the Officers rely on the Court of Appeals’ opinion in Dawkins.

But Dawkins dealt with Maryland’s procedural rules—not the substantive right that

absolute prosecutorial immunity confers. See 827 A.2d at 120‒22. There, the Court of

Appeals held that interlocutory orders denying “any” type of immunity are “not appealable

under the Maryland collateral order doctrine” except in “extraordinary situations.” Id. at

121‒22 (emphasis added). Maryland’s collateral order doctrine, like its federal

counterpart, applies only to orders that “would be effectively unreviewable if the appeal

had to await the entry of a final judgment.” Id. at 118 (citation omitted). Yet the Dawkins

court rejected the federal-court rule that a claim of immunity from suit would be

“effectively unreviewable” at the end of litigation. Id. at 118, 120 (“[T]he claimed right of

immunity from trial itself does not suffice to satisfy the ‘unreviewability’ requirement[.]”

(citation omitted)). The court expressed concern that such a rule would cause “a

proliferation of appeals under the collateral order doctrine” and “be flatly inconsistent with

the long-established and sound public policy against piecemeal appeals.” Id. at 119

(citation omitted). Accordingly, the court added another requirement to the doctrine—that

the challenged order present an “extraordinary situation.” See id. at 121. While this

additional procedural requirement narrowed the pool of collateral orders eligible for

immediate review, it did not change the nature of the immunities available to government

officials under Maryland substantive law.

21
 The collateral order doctrine strikes a balance between courts’ interest in protecting

government officials entitled to immunity from burdensome litigation and the competing

interest in not overburdening appellate courts with piecemeal appeals. See Will v. Hallock,

546 U.S. 345, 351‒53 (2006); Dawkins, 827 A.2d at 121. The federal courts have

determined that the need to resolve absolute prosecutorial immunity disputes “at the

earliest possible stage of litigation” outweighs concerns about encumbering appellate

courts with interlocutory appeals. See Pearson v. Callahan, 555 U.S. 223, 232 (2009);

Will, 546 U.S. at 350‒52. Maryland courts have struck a different balance, instead limiting

interlocutory appeals involving immunity questions to “extraordinary situations.” See

Dawkins, 827 A.2d at 119‒21. But Maryland’s policy choice—to err on the side of

reducing piecemeal appeals—does not transform an immunity from suit into an immunity

from liability.

Even if absolute prosecutorial immunity could be construed under Maryland law as

merely an immunity from liability, and thus outside the scope of the collateral order

doctrine, we would still have pendent appellate jurisdiction here. Pendent appellate

jurisdiction permits appellate courts to “retain the discretion to review issues that are not

otherwise subject to immediate appeal when such issues are so interconnected with

immediately appealable issues that they warrant concurrent review.” Rux v. Republic of

Sudan, 461 F.3d 461, 475 (4th Cir. 2006). Two issues are sufficiently interconnected when

they are “inextricably intertwined”—i.e., they involve “the same specific question,” and

resolution of the appealable issue necessarily resolves the other. Scott v. Family Dollar

22
Stores, Inc., 733 F.3d 105, 111 (4th Cir. 2013) (citation omitted). 7 The Officers’ § 1983

malicious-prosecution claim is based on the same facts as their state malicious-prosecution

claims, and Mosby’s federal and state absolute-immunity defenses raise identical issues.

As explained above, Maryland has adopted wholesale the federal doctrine of absolute

prosecutorial immunity. Gill, 724 A.2d at 96. Thus, our resolution of Mosby’s absolute-

immunity defense to the § 1983 claim necessarily resolves her absolute-immunity defense

to the corresponding state claims. See Scott, 733 F.3d at 111 (exercising pendent appellate

jurisdiction where resolution of appealable and non-appealable orders turned on

interpretation of same law).

In sum, we have jurisdiction to review the district court’s denial of Mosby’s claimed

absolute-immunity defense to the state malicious-prosecution claims both under the federal

collateral order doctrine and via our pendent appellate jurisdiction.

B.

In Part II.B, we held that Mosby is entitled to absolute prosecutorial immunity for

the Officers’ § 1983 malicious-prosecution claim under federal common law. Because the

Officers’ § 1983 malicious-prosecution claim and their state malicious-prosecution claims

rest on the same facts, and absolute prosecutorial immunity is the same under federal law

and Maryland law, we also hold that Mosby is entitled to absolute prosecutorial immunity

for the Officers’ state malicious-prosecution claims under Maryland common law.

7
The interconnected requirement is also met where “review of [the] jurisdictionally
insufficient issue is necessary to ensure meaningful review of [the] immediately appealable
issue.” Id. (internal quotation marks and citation omitted).
23
 IV.

Finally, we address the Officers’ state-law defamation and false-light claims, which

arise from Mosby’s press-conference statements. As a defense to these claims, Mosby

asserted statutory immunity under the MTCA and public-official immunity under

Maryland common law. The district court declined to dismiss the press-conference torts,

finding that the Officers had alleged sufficient facts to state plausible claims for relief and

that Mosby was not entitled to the fair reporting or fair comment privileges. Nero, 233 F.

Supp. 3d at 476‒80. The district court did not expressly address Mosby’s immunity

defenses to the defamation and false-light claims. See id. The Officers maintain that we

do not have jurisdiction to review the district court’s decision as to these state claims. We

again disagree and hold that the MTCA bars the Officers from bringing suit based on

Mosby’s press-conference statements. Because we dispose of the press-conference torts

on statutory-immunity grounds, we need not reach whether Mosby is also entitled to

public-official immunity.

A.

Under the collateral order doctrine, we have jurisdiction to review the district court’s

order denying Mosby’s motion to dismiss the defamation and false-light claims if the order

denies an immunity from suit and thereby “conclusively determines” the immunity

question. See Gray-Hopkins, 309 F.3d at 229; see also supra Part III.A. We first look to

state substantive law to determine the nature and scope of the claimed MTCA immunity

and then consider whether the district court’s order in fact denied Mosby such immunity.

24
 1.

Maryland’s legislature has made clear that the MTCA confers a right to be free from

suit. The MTCA provides in relevant part that “State personnel,” including State’s

Attorneys, “are immune from suit in courts of the State and from 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) (emphasis added); see Md. Code Ann., State Gov’t § 12-101(a)(8) (defining “State

personnel” to include State’s Attorneys). The plain language of the statute grants State’s

Attorneys immunity from tort lawsuits that are based on actions taken within the scope of

employment and without malice or gross negligence. See Barbre v. Pope, 935 A.2d 699,

716 (Md. 2007) (“[F]or a State employee to be granted immunity from suit by the MTCA,

he must act within the scope of his public duties and without malice or gross negligence[.]”

(internal quotation marks and brackets omitted)); Ford v. Balt. City Sheriff’s Office, 814

A.2d 127, 142 (Md. App. 2002) (“[T]he MTCA permits suit against the State for a

negligent violation of the State Constitution by State personnel, but State personnel shall

be immune from such suits.”).

Indeed, the statute’s mention of both immunity from suit and immunity from

liability requires us to conclude that it confers both a right to be free from suit and a right

to be free from liability. “When we interpret statutes, we must ‘construe all parts to have

meaning’” and “avoid interpretations that would turn some statutory terms into nothing

more than surplusage.” United States v. Briley, 770 F.3d 267, 273 (4th Cir. 2014) (quoting

PSINet, Inc. v. Chapman, 362 F.3d 227, 232 (4th Cir. 2004)). Reading the MTCA to grant

25
only immunity from liability would render the phrase “immune from suit” meaningless.

See Litz v. Md. Dep’t of Env’t, 131 A.3d 923, 938 n.18 (Md. 2016) (“[T]he MTCA provides

state employees with direct immunity from suit, whereas the LGTCA grants to local

government employees only immunity from damages, not from suit.”); Bd. of Educ. of

Prince George’s Cty. v. Marks-Sloan, 50 A.3d 1137, 1155 (Md. 2012) (“In contrast to the

complete immunity from suit given to State personnel under the MTCA, local government

employees are granted only an immunity from damages under the LGTCA.”).

To be sure, Maryland’s Court of Appeals has stated that “interlocutory trial court

orders rejecting defenses of . . . statutory immunity . . . are not appealable under the

Maryland collateral order doctrine.” Dawkins, 827 A.2d at 122. But, again, this restriction

on the immediate appealability of a denial of MTCA immunity is a function of Maryland’s

collateral order doctrine, not the scope of the immunity itself. See supra Part III.A. The

statute clearly states that MTCA immunity is an “immunity from suit.” Md. Code Ann.,

Cts. & Jud. Proc. § 5-522(b). “When a policy is embodied in a constitutional or statutory

provision entitling a party to immunity from suit (a rare form of protection), there is little

room for the judiciary to gainsay its ‘importance.’” Digital Equip. Corp. v. Desktop Direct,

Inc., 511 U.S. 863, 879 (1994).

2.

Because MTCA immunity protects Maryland State’s Attorneys from suit, the

district court’s decision to allow the Officers’ defamation and false-light claims to go

forward conclusively determined that Mosby was not entitled to MTCA immunity.

Permitting a suit to proceed beyond the dismissal stage in spite of an immunity defense

26
“subjects the official to the burdens of pretrial matters, and some of the rights inherent in

[the] immunity defense are lost.” Jenkins v. Medford, 119 F.3d 1156, 1159 (4th Cir. 1997)

(en banc). Accordingly, we have held that a district court’s refusal to rule on an immunity-

from-suit defense decided the immunity question for purposes of the collateral order

doctrine. See id. Here, the district court denied Mosby’s motion to dismiss the defamation

and false-light claims but did not expressly reject the MTCA-immunity defense she

asserted to those claims. Nero, 233 F. Supp. 3d at 476‒80. Yet forcing Mosby to continue

to litigate these claims necessarily deprived her of the immunity Maryland granted State’s

Attorneys in the MTCA. See Marks-Sloan, 50 A.3d at 1155 (noting that MTCA gives State

personnel “complete immunity from suit”). We therefore conclude that the district court’s

decision denied Mosby immunity from suit and is appealable under the collateral order

doctrine.

B.

Satisfied that we have jurisdiction to review the district court’s ruling on the press-

conference torts, we turn to the merits of Mosby’s MTCA-immunity claim. The Officers

allege that, at the press conference, Mosby defamed them and invaded their privacy by

placing them before the public in a false light. The MTCA bars these claims if Mosby’s

press-conference statements were “within the scope of [her] public duties” and “made

without malice or gross negligence.” Md. Code Ann., Cts. & Jud. Proc. § 5-522(b).

Whether the complaints allege sufficient facts to overcome Mosby’s assertion of MTCA

immunity is a question of law that we review de novo. See Marks v. Dann, 600 F. App’x

81, 84‒85 (4th Cir. 2015); Chinwuba v. Larsen, 790 A.2d 83, 115 (Md. App. 2002)

27
(hereinafter “Chinwuba I”), aff’d in part, rev’d in part on other grounds, 832 A.2d 193

(Md. 2003).

1.

At least two of the Officers allege, somewhat confusingly, that by holding the press

conference and reading the statement of probable cause, Mosby acted both within the scope

of her employment and outside it. Compare J.A. 185 (“At all times, Defendants Mosby

and Cogen were acting . . . within the scope of their employment[.]”), with J.A. 188

(“Defendant Mosby went outside the scope of her employment as a State’s Attorney by

holding a press conference, acting in an investigative capacity, [and] reading the statement

of charges to the public[.]”). We agree with the former assertion.

The MTCA’s within-the-scope-of-employment requirement “is coextensive with

the common law concept of ‘scope of employment’ under the doctrine of respondeat

superior.” Larsen v. Chinwuba, 832 A.2d 193, 200 (Md. 2003) (hereinafter “Chinwuba

II”) (quoting Sawyer v. Humphries, 587 A.2d 467, 470 (Md. 1991)). Per that doctrine,

conduct falls within the scope of employment when it is “authorized by the employer” and

“in furtherance of the employer’s business.” Id. at 200 (internal quotation marks and

citation omitted). The conduct need not be “intended or consciously authorized,” so long

as it is “of the same general nature as that authorized” or “incidental to the conduct

authorized.” Id. at 201.

The Maryland Court of Appeals has held that the head of an executive agency acts

within the scope of her employment when she shares with the public information about the

agency’s activities to further the agency’s mandate. In Chinwuba, the Commissioner of

28
the Maryland Insurance Administration, while conducting an investigation into a Maryland

health maintenance organization (HMO), allegedly disclosed to the press letters he had sent

to the HMO and made statements to the press about the investigation. Chinwuba II, 832

A.2d at 194, 196. The HMO sued the Commissioner for defamation and false light

invasion of privacy, and the Commissioner asserted MTCA immunity in defense. Id. The

court held that the Commissioner’s disclosure and statements to the press were within the

scope of his employment. Id. at 201. It reasoned that “the head of a major agency in the

executive branch of government is authorized to disclose to the public matters concerning

the agency’s operations.” Id. Moreover, the “disclosures were made during the regular

course of business,” “related entirely to the operations of the Insurance Administration,”

and “incidental to the business of managing the Insurance Administration.” Id. Had the

Commissioner acted not in furtherance of the agency’s business but for his own personal

benefit, however, his disclosures would not have been protected. Id. at 202 (citing Sawyer,

587 A.2d at 471, and Ennis v. Crenca, 587 A.2d 485, 489‒91 (Md. 1991)).

Applying these principles here, Mosby’s press-conference statements clearly fell

within the scope of her employment. As Baltimore City’s State’s Attorney, Mosby was

elected by the people of Baltimore to lead the city’s State’s Attorney’s Office, a key agency

in Maryland’s state government. See Md. Const., Art. 5, § 7. The State’s Attorney’s Office

houses Baltimore’s Police Integrity Unit and prosecutes crimes on behalf of the public. See

Md. Code Ann., Crim. Pro. § 15-102. At the press conference, Mosby informed the public

that her Police Integrity Unit had conducted an investigation into Freddie Gray’s death,

found probable cause to believe that the Officers had committed numerous crimes, and

29
initiated criminal prosecutions against them. Like the Insurance Commissioner’s

disclosures in Chinwuba, these statements “were made during the regular course of

business” and “related entirely to the operations” of her office. See Chinwuba II, 832 A.2d

at 201. Mosby also called for peace in Baltimore as she prosecuted the Officers. Such an

appeal to the public to comply with the law was certainly “incidental,” if not directly

related, to her role as the chief law enforcement officer in the city. See id.

The Officers allege that Mosby used their arrests “for her own personal interests and

political agendas” and thus acted outside the scope of her employment. Appellees’ Br. 42

(internal quotation marks omitted). But their argument is entirely devoid of support. The

statements they cite—“I heard your call for ‘No justice, no peace,’” “your peace is sincerely

needed as I work to deliver justice,” and “I will seek justice on your behalf”—simply do

not give rise to a reasonable inference that Mosby acted for reasons other than furthering

the operations of the State’s Attorney’s Office. See id. (quoting J.A. 32‒33). The people

of Baltimore elected Mosby to deliver justice. See Md. Const., Art. 5, § 7. A young

African-American man had been killed in the custody of the Baltimore City Police

Department, and the city was rioting. Pursuing justice—i.e., using the legal system to reach

a fair and just resolution to Gray’s death—was not a political move. It was Mosby’s duty.

And Mosby was well within her role to tell the people of Baltimore, and the nation, that

she was carrying out that duty. Cf. Miner v. Novotny, 498 A.2d 269, 275 (Md. 1985) (“The

viability of a democratic government requires that the channels of communication between

citizens and their public officials remain open and unimpeded.”). That Mosby may gain

30
some future career advantage for doing her job well does not take her actions outside the

scope of her employment.

2.

The Officers further assert that Mosby is not entitled to MTCA immunity because

she made the press-conference statements with either malice or gross negligence. But the

allegations in the complaints simply cannot sustain such a finding.

For MTCA purposes, malice is “conduct characterized by evil or wrongful motive,

intent to injure, knowing and deliberate wrongdoing, ill-will or fraud.” Barbre, 935 A.2d

at 714 (internal quotation marks and citation omitted). To establish malice, a plaintiff must

show that the government 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 and willfully injure the plaintiff.” Bord v. Baltimore County, 104

A.3d 948, 964 (Md. App. 2014) (quoting Town of Port Deposit v. Petetit, 688 A.2d 54, 62

(Md. App. 1997)).

Nothing in the complaints even suggests that Mosby spoke at the press conference

out of “hate” or “to deliberately and willfully injure” the Officers. See id. In discussing

Mosby’s MTCA-immunity defense to the state malicious-prosecution claims, the district

court noted the same. Nero, 233 F. Supp. 3d at 486. The Officers do not seriously

challenge that conclusion on appeal. Thus, the only question at this stage is whether Mosby

was grossly negligent.

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,” Cooper v.

31
Rodriguez, 118 A.3d 829, 845 (Md. 2015) (citation omitted)—“something more than

simple negligence, and likely more akin to reckless conduct,” Barbre, 935 A.2d at 717

(quoting Taylor v. Harford Cty. Dep’t of Soc. Servs., 862 A.2d 1026, 1035 (Md. 2004)). A

government official commits gross negligence “only when he or she inflicts injury

intentionally or is so utterly indifferent to the rights of others that he or she acts as if such

rights did not exist.” Cooper, 118 A.3d. at 846 (brackets and citation omitted). To get past

Mosby’s MTCA-immunity defense, the Officers must point to specific facts that raise an

inference that Mosby’s actions were improperly motivated. Chinwuba I, 790 A.2d at 115;

Barbre, 935 A.2d at 717 (“[C]onclusory allegations of gross negligence [a]re not enough

to bring the claim outside the immunity and non-liability provisions of the MTCA.”).

The only statements that the Officers challenge as tortious are those Mosby read

from the application for Statement of Charges. Specifically, the Officers allege that Mosby

intentionally included false facts and omitted material facts in the application such that

when she read it to the public at the press conference, she knowingly publicized inaccurate

and defamatory information about them. Maryland courts have not directly addressed the

necessary showing for gross negligence in the defamation or false-light context. But, given

that gross negligence turns on “reckless disregard of the consequences” of one’s actions,

see Cooper, 118 A.3d at 845, we presume that Maryland courts would require a showing

of reckless disregard for the truth or reckless disregard as to whether the omissions

rendered the statements materially misleading.

This standard is a familiar one. It echoes the first prong of the Franks test, which

provides that a criminal defendant cannot challenge a probable-cause affidavit, such as the

32
application for Statement of Charges, unless he shows that the affiant “knowingly and

intentionally, or with reckless disregard for the truth,” included “a false statement.” See

Franks v. Delaware, 438 U.S. 154, 155‒56 (1978). And it mirrors the necessary showing

of “actual malice” in a defamation action brought by a police officer under New York Times

Co. v. Sullivan—“that is, with knowledge that it was false or with reckless disregard of

whether it was false or not.” See 376 U.S. 254, 279‒80 (1964) (holding that public officials

must show “actual malice” to recover for defamation); Smith v. Danielczyk, 928 A.2d 795,

805 (Md. 2007) (“[P]olice officers, from patrol officers to chiefs, are regarded for New

York Times purposes as public officials.”). Thus, in the absence of Maryland case law, we

will look to cases applying Franks and New York Times for guidance as to how Maryland’s

gross-negligence standard applies to the publication of an allegedly misleading application

for Statement of Charges. 8

We have said that an allegedly false statement in a probable-cause affidavit amounts

to “reckless disregard” if the drafter made the statement “with a high degree of awareness

of [its] probable falsity.” Miller v. Prince George’s County, 475 F.3d 621, 627 (4th Cir.

2007) (citation omitted); see also Reuber v. Food Chem. News, Inc., 925 F.2d 703, 714

(4th Cir. 1991) (en banc) (“Reckless disregard has in turn been defined as publishing with

a ‘high degree of awareness of [a statement’s] probable falsity.’” (quoting Garrison v.

Louisiana, 379 U.S. 64, 74 (1964))). In other words, “when viewing all the evidence, the

8
The Officers in fact conceded at oral argument that if the application for Statement
of Charges passes the Franks test, their defamation and false-light claims fail. See Oral
Argument at 46:40‒47:10.
33
[drafter] must have entertained serious doubts as to the truth of his statements or had

obvious reasons to doubt the accuracy of the information he reported.” Miller, 475 F.3d at

627 (citation omitted); see also Reuber, 925 F.2d at 711 (“[R]eckless disregard relates to a

state of mind in which a ‘defendant in fact entertained serious doubts as to the truth of his

publication.’” (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968))). The Officers

contend that three statements in the application for Statement of Charges were false: (1)

Rice, Miller, and Nero arrested Gray without probable cause because the knife found on

Gray “was not a switchblade knife and is lawful under Maryland law,” J.A. 30; (2) Porter

and White “observed Mr. Gray unresponsive on the floor of the wagon” but “[d]espite Mr.

Gray’s seriously deteriorating medical condition, no medical assistance was rendered or

summoned,” J.A. 31; and (3) “White who [was] responsible for investigating two citizen

complaints pertaining to Mr. Gray’s illegal arrest spoke to the back of Mr. Gray’s head.

When he did not respond, she did nothing further despite the fact that she was advised that

he needed a medic. She made no effort to look or assess or determine his condition,” J.A.

31. According to the Officers, the knife was in fact illegal, Porter and White “did not

observe that Mr. Gray was in any distress,” J.A. 179, and White called for medical

assistance as soon as she learned Gray was unconscious.

But the Officers offer no facts to support their assertion that Mosby knew that any

of her statements were false or seriously doubted their veracity. See Miller, 475 F.3d at

627; Reuber, 925 F.2d at 714. The Officers’ mere disagreement with Mosby as to whether

the knife found on Gray qualified as an illegal switchblade, or how to interpret the law,

does not show that Mosby recklessly disregarded their rights. The lawfulness of the knife

34
is a legal question—not a discrete fact that can be proven true or false. And the existence

of a counterfactual to Mosby’s narrative does not give rise to an inference that she “had

obvious reasons to doubt the accuracy of the information” she reported. See Miller, 475

F.3d at 627 (citation omitted). In fact, the Officers’ narrative of the events of April 12,

2015, is so similar to that described in the application for Statement of Charges that it

almost confirms the accuracy of the information Mosby reported. 9 While the Officers’

version of events may have provided a defense to criminal liability, it is insufficient to

establish that Mosby had a “high degree of awareness” that anything in the application for

Statement of Charges was false. See id. (citation omitted); Reuber, 925 F.2d at 714

(citation omitted).

With regard to omissions in a probable-cause statement, we have said that a drafter

acts with reckless disregard when she “fail[s] to inform the judicial officer of facts [she]

knew would negate probable cause”—i.e., material facts. Miller, 475 F.3d at 627.

Allegations of mere “negligence or innocent mistake” are insufficient. Id. at 627‒28

9
For example, the Porter-White complaint alleges that “Porter observed Freddie
Gray lying on the floor of the vehicle . . . in a prone position, with his feet at the rear area
of the transport compartment”; Porter heard Gray say “help” and “inquired if Mr. Gray
wanted to see a medic and/or if he wanted medical help,” to which Gray “indicated that he
did want to have medical assistance”; Porter “advised Officer Goodson that he would need
to transport Mr. Gray to the hospital,” but Gray was instead taken to North Avenue where
the van picked up a second arrestee. J.A. 172‒73. The Porter-White complaint also states
that White “received supervisor complaints”; observed “Mr. Gray sitting in-between the
seat and the floor of the back of the police wagon, with his head down, leaning over”;
“attempted to speak with him”; received no response; “heard him making noises” and “saw
him breathing”; “concluded that his non-responsiveness was due to Mr. Gray continuing
to be uncooperative and non-compliant”; and “got back into her patrol car and left the
scene.” J.A. 169.
35
(quoting Franks, 438 U.S. at 171). The Officers contend that Mosby omitted the following

facts: (1) the second arrestee, who was placed in the police wagon with Gray, reported that

Gray was conscious and banging his head against the wall “during much of the ride,” J.A.

180; (2) another police officer reported that, at some point in time, he saw Gray in the back

of the wagon in a “praying position” and not in medical distress, J.A. 180; and (3) the

medics who treated Gray determined that his neck was “Normal” and treated him for

possible drug ingestion or overdose, J.A. 180. According to the Officers, this information

is material because it shows that they could not have known that Gray was in medical

distress.

But these facts do not negate probable cause, let alone establish that the Officers

had no knowledge of Gray’s condition. Probable cause is “a probability or substantial

chance of criminal activity, not an actual showing of such activity,” and it is assessed based

on the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230, 243 n.13 (1983).

Here, Gray was conscious and healthy (or at least in good enough condition to run from

the police) when he was arrested, and he was fatally injured and in a coma by the time he

arrived at the police station. We therefore know that Gray was in medical distress at some

time while in the Officers’ custody. And the Officers agree that Gray in fact requested

medical assistance at least twice.

With this background in mind, we do not see how the Officers’ proffered facts

preclude “a probability or substantial chance” the Officers knew Gray needed medical

attention and failed to act. See Gates, 462 U.S. at 243 n.13. First, that Gray’s co-passenger

reported he was conscious and banging his head against the wall does not contradict the

36
application’s assertion that Gray was in medical distress. Gray could have been banging

his head and in medical distress. Second, a police officer’s opinion that Gray was not in

medical distress because he observed Gray in a “praying position” at some unspecified

time during the wagon ride—a ride that spanned at least four stops—also does not show

that Gray was not in distress. Third, that the medics treated Gray for the wrong medical

problem is likewise of no moment. While it may show that the cause of Gray’s medical

distress was not immediately obvious, it does not show that the fact of Gray’s medical

distress was not obvious.

And, importantly, Mosby was “not required to include every piece of exculpatory

information” in the application for Statement of Charges. See Evans v. Chalmers, 703 F.3d

636, 651 (4th Cir. 2012). Drafting a probable-cause statement involves advocacy—that is

precisely why it falls under the umbrella of absolute immunity. See Kalina, 522 U.S. at

130; see also supra Part II. So long as the application includes all material facts, a

prosecutor need not also present the defendant’s defense. See Evans, 703 F.3d at 651.

Here, because none of the omitted facts identified in the complaints is material, the Officers

cannot show that Mosby acted with reckless disregard when she omitted them.

Accordingly, the Officers’ allegations cannot support a finding of gross negligence.

Although questions of gross negligence are typically for the factfinder to decide, Barbre,

935 A.2d at 717, we hold as a matter of law that nothing in the complaints gives rise to an

inference that Mosby recklessly disregarded the consequences of her statements. See E.W.

by and through T.W. v. Dolgos, 884 F.3d 172, 187 (4th Cir. 2018) (citing Cooper, 118 A.3d

at 846); see also Boyer v. State, 594 A.2d 121, 132 (Md. 1991) (holding that plaintiff failed

37
to plead sufficient facts to show that officer acted with wanton or reckless disregard for

public’s safety).

V.

In conclusion, none of the Officers’ claims can survive the motion-to-dismiss stage.

That the Officers disagree with Mosby’s decision to prosecute—as most defendants do—

or with the information in the application for Statement of Charges—which inherently

contains defamatory information—does not entitle them to litigate their disagreement in

court, and much less recover damages.

The Officers’ malicious-prosecution claims epitomize the “vexatious litigation” that

absolute prosecutorial immunity is designed to preclude. See Pachaly v. City of Lynchburg,

897 F.2d 723, 727‒28 (4th Cir. 1990). Having “transform[ed] [their] resentment at being

prosecuted into the ascription of improper and malicious actions to the State’s advocate,”

see Imbler, 424 U.S. at 425, the Officers ask us depart from well-settled law so that they

can force Mosby to defend her decision to seek justice on behalf of Freddie Gray. We find

their arguments both meritless and disconcerting.

The Officers’ defamation and false-light claims are equally bereft of support. The

Officers cite no facts showing that Mosby spoke at the press conference with malice or

gross negligence, as required by the MTCA. Their allegations, accepted as true, do not

even negate that Mosby had probable cause to charge them. And the Officers’ contention

that Mosby acted outside the scope of her employment by telling the public that she would

pursue justice borders on absurd.

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 Perhaps to the Officers’ chagrin, they must accept that they are subject to the same

laws as every other defendant who has been prosecuted and acquitted. Those laws clearly

bar the type of retaliatory suits that the Officers brought here. The district court therefore

erred in allowing their claims to proceed.

REVERSED

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WILKINSON, Circuit Judge, concurring:

I am pleased to join Chief Judge Gregory’s fine opinion. It is an eloquent defense

and application of neutral principles of law, no matter what the context.

I wish only to underscore my colleague’s concern about the perils of appellees’

defamation claim. State’s Attorney Mosby is an elected official. After the death of Freddie

Gray, her community, her constituents, and her city faced a crisis of confidence.

Baltimore’s citizens had their faith shaken, not only in the police, but in the very ability of

government to administer justice. As any of us would expect of our political leaders, Mosby

responded to a crisis. And as all of us should demand from our political leaders, Mosby

explained her actions to the public. At a press conference, she read from a charging

document, praised investigators, and explained the basis of the prosecution. To say that an

elected official exposes herself to liability by discharging her democratic duty to justify the

decisions she was elected to make is to elevate tort law above our most cherished

constitutional ideals.

The First Amendment requires public officials, such as the police officers who

brought this suit, to make a showing of “actual malice” in an action for defamation relating

to their official duties. See New York Times v. Sullivan, 376 U.S. 254 (1964). That much is

not in question. But powerful speech interests arise not only when public officials bring

defamation actions, but when public officials are subject to them. Just as Sullivan

recognized the sacred right of the citizen to criticize his government free from the threat of

legal damages, the First Amendment also protects the public official’s ability to explain his

actions to his constituents. This free exchange between government and governed

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legitimates and nourishes our democratic system. For the First Amendment was founded

on the belief “that the greatest menace to freedom is an inert people; that public discussion

is a political duty; and that this should be a fundamental principle of the American

government.” Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).

This is not to say that a prosecutor can never face consequences for reckless public

remarks. But the proper avenue for regulating prosecutorial statements is a state’s ethical

code governing attorneys, not private tort suits. Under Maryland’s Rules of Professional

Conduct, for example, a prosecutor may face discipline if he makes “extrajudicial

comments that have a substantial likelihood of heightening public condemnation of the

accused,” or “extrajudicial statements that have a substantial likelihood of prejudicing an

adjudicatory proceeding.” Maryland Attorneys’ Rules of Professional Conduct, Rule 19-

303.8. Notably exempt from that rule, however, are those “statements that are necessary

to inform the public of the nature and extent of the prosecutor’s action and that serve a

legitimate law enforcement purpose.” Id. Mosby’s comments were of precisely that ilk.

And for similar reasons, her comments were privileged under state law. See Piscatelli v.

Van Smith, 35 A.3d 1140, 1152 (Md. 2012) (privileging “opinions or comments regarding

matters of legitimate public interest” such as “the occurrence or prosecution of crimes”);

Smith v. Danielczyk, 928 A.2d 795, 816 (Md. 2007) (privileging statements “required or

permitted in the performance of [a public official’s] official duties”).

The defamation action here not only attempts to dilute the protections of New York

Times v. Sullivan. It would weaken the defense of absolute prosecutorial immunity set forth

by the Supreme Court in Imbler v. Pachtman, 424 U.S. 409 (1976). One of the dangers

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against which Imbler warned was the use of hindsight, in this case the trial verdicts, to give

rise to a § 1983 action or something akin to a state malicious prosecution claim. It is plain

that the “the vigorous and fearless performance of the prosecutor’s duty” would be eroded

along with robust public discourse. See Imbler, 424 U.S. at 427.

By advancing a theory of tort liability for explanations of official acts, the officers

here strike at the very heart of the democratic dialogue. Courts must repel such attacks. In

doing so, we honor our “profound national commitment to the principle that debate on

public issues should be unlimited, robust, and wide-open” on all sides. Sullivan, 376 U.S.

at 270.

Defamation law unbound is inimical to free expression. I thought the principle of

New York Times v. Sullivan secure. But no. As the saying goes, the censors never sleep.

Here they come again.

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