Whether justice in civil court will prevail to the satisfaction of the Baltimore officers accused of causing the death of prisoner Freddie Gray during a transport in 2015 is a question the courts have been willing, thus far, to allow.
The officers criminally charged in the case – Sgt. Alicia White, Officers William Porter, Garrett Miller, Edward Nero and Lt. Brian Rice – filed suit against prosecutor Marilyn Mosby after the criminal cases against the officers collapsed.
The lawsuit claims that Mosby committed the civil wrongs of malicious prosecution, defamation and invasion of privacy. Each of these issues is faced by police officers at times in their careers, but are difficult to remedy through legal action. Mosby’s case is unique in that she enjoys one of the major defenses to civil suit with immunity due to her position as a prosecutor.
The Baltimore officers claim that her actions were outside of her prosecutorial position and, therefore, not protected. The courts have supported the officers’ right to pursue that theory.
Does this suit give police officers hope that they can reclaim their reputations after they have been slandered and falsely accused in public? The Mosby case may be too unique to mark a major shift in that direction. The defenses to defamation and malicious prosecution are challenging to overcome, but not impossible.
What is defamation?
Defamation is a false statement, written or spoken, that is intended to cause harm to an individual’s reputation and does, in fact, cause harm.
The proof of falseness is the least difficult, although sometimes confusing if the offending statement is mere innuendo or implication. Proof of intent is more difficult, and the proof of actual harm can be tricky as well.
Another hurdle to proving defamation is whether the person bringing the suit has chosen a career or public exposure that tends to invite public criticism, because free speech in discussions of matters of public interest holds great weight.
There are absolute or qualified immunities to protect things spoken by judges and prosecutors within the framework of their official positions, as well as statements made by a legislator during debate in the halls of assembly.
An officer suing for defamation will need to cite damages. Normally, speculative damages in civil suits are not provable. (For example, a 45-year-old slips on your sidewalk and now he won’t be an NFL quarterback so he’s lost millions!) How can an officer know if a promotion or assignment is denied because of the taint of a false accusation? How does a plaintiff prove the distress and disruption that an officer endures from a slanderous comment? An attorney will advise the officer plaintiff on the types of losses that can be claimed.
Before or prior to a lawsuit, an officer may want to consult with an attorney about sending a letter to the offending party asking for a retraction, or demanding the person cease the defamatory communications. This can create a record that the officer contested the false claim, and can provide a sense of validation to the offended officer.
What is malicious prosecution?
Malicious prosecution lawsuits are less common. An internet search for the phrase “officer wins malicious prosecution suit” yields far fewer accounts than a search for “officer wins defamation suit.”
As defamation cases must overcome the protections of freedom of speech, malicious prosecution cases must overcome the protections of freedom of officers of the court and private citizens to engage in the administration of justice. An officer must prove that a criminal or civil case against them was baseless and malicious, known as “vexatious litigation” in common law parlance.
Have a lawyer
This article is not intended to be legal advice, nor is the author competent to do so, but serves as a reminder that law enforcement should not hesitate to consult legal counsel to preserve their rights as citizens. Individual cases are often complex and unique, giving rise the need for competent legal help. Today’s police officer must add to the necessary survival gear one additional item: their attorney’s business card.
