Prosecuting The Police: How Rogue District Attorneys Enjoy Both ‘Discretion’ And ‘Immunity’

Experts say a national wave of progressive prosecutors have been pursuing law enforcement officers with little probable cause which may be a violation of their civil rights.

In 2015, Baltimore State’s Attorney Marilyn Mosby charged six members of the Baltimore City Police Department in the death of Freddie Gray, a suspect who died in custody after fleeing on foot from police who were on bicycles.

Amid riots throughout the city, Mosby charged the officers with specific intent crimes, without the requisite probable cause to support these charges. The next year, all the charges were predictably acquitted or dropped – and Mosby went from the role of prosecutor to defendant when five of the officers she hastily charged filed federal lawsuits against her for false arrest, false imprisonment, defamation or false light, and other assertions.

In 2016, attorneys for the officers claimed there were ulterior motives in charging the officers. “Marilyn Mosby’s comments in her press conference today confirm that the charges brought against my clients, Sgt. Alicia White and Officer William Porter, as well as the other four officers, were politically motivated and not supported by evidence to establish probable cause,” Michael E. Glass said.

The lawsuit accused Mosby of realizing the case would draw widespread media attention and of speaking “in a divisive and inciting manner”, and broke Maryland’s code of professional conduct, forbidding lawyers from making “an extrajudicial statement” they know will prejudice a court proceeding.

The Mosby case demonstrates how hard it is to hold rogue district attorneys accountable for malicious prosecution, as they enjoy the widespread legal protections of both “prosecutorial discretion” and “absolute immunity.”

U.S. District Court judge Marvin J. Garbis rejected Mosby’s initial immunity claims against the multimillion-dollar lawsuit, allowing it to go to trial in 2017. Regardless, a Richmond, VA, US Court of Appeals ruled in Mosby’s favor, and dismissed the lawsuit – not on the facts of the case – but citing Mosby’s “Absolute Immunity” as the elected State’s Attorney.

Since then, Mosby has been indicted on federal fraud and tax charges, and has lost her reelection bid.

However, the repercussions from her case continue as a myriad of politically-charged prosecutions against law enforcement officers have been pressed since, by several progressive prosecutors elected with help from billionaire George Soros and other national political action committees.

Noteworthy examples include Attorney General Rob Bonta’s felony charges of fifty-four California Highway Patrol officers and District Attorney Larry Krasner’s recent excoriation by the Pennsylvania Supreme Court for manipulating the grand jury process to charge police officers for shooting an armed felon. Then there is the Biden administration’s federal civil rights charges against the Louisville-Metro police officers who killed Breonna Taylor after her boyfriend shot an officer through a closed door at her apartment.

As anti-law enforcement sentiments increased following the 2020 killing of George Floyd by a Minneapolis Police Officer, prosecutions of police officers became a political talking point, gaining favor in the Soros-funded progressive prosecutor movement.

This led to instances where specific-intent murder charges were filed. In many of those cases, if probable cause existed, appropriate charges would have been general-intent manslaughter or accidental/wrongful death. Most of these circumstances, however, led to acquittals and/or dismissals.

Prosecutorial discretion – or immunity – doesn’t negate the fact that some prosecutors have stepped out of their role in law enforcement, and acted as elected politicians.

While prosecutors enjoy absolute immunity and law enforcement officers abide by qualified immunity, plaintiffs argue that rogue prosecutors are not acting as impartial law enforcement investigators. This is especially true when police officers are overcharged when accused of perpetrating institutional racism or inequality. 

“With absolute immunity for prosecutors, police officers are in a very difficult position if they are wrongfully charged by a politically motivated district attorney,” said former Chester County District Attorney and Manhattan Institute Fellow Thomas Hogan. “There is an interesting theory that prosecutors might be subject to a pattern-and-practice action by the U.S. Department of Justice, but that standard is high and the legal question is unsettled.”

It’s clear, in pursuing criminal prosecutions solely based on political motive, regardless of the evidence, rogue prosecutors may be violating the civil rights of defendants.

So what changed between the 2018 dismissal in Mosby’s case and now? In April of 2022, the Supreme Court ruled in Thompson v. Clark that former criminal defendants can sue law enforcement for a wrongful arrest without needing to prove that they were innocent of the charges, only that their underlying cases ended without a conviction.

As prosecutors are law enforcement officers as well as elected officials, the 6-3 decision makes it easier to pursue lawsuits under the Fourth Amendment, which protects citizens (including law enforcement officers) from unreasonable seizures.

The need for greater oversight and transparency for our nation’s prosecutors is clear.

It must be addressed, whether it’s through civil suits, state oversight, or corruption indictments.

A. Benjamin Mannes, MA, CPP served in both municipal and federal

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