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Assistant Prosecutor Loses Political Firing Case

By William Vogeler, Esq. on October 23, 2017 | Last updated on March 21, 2019

Keri Borzilleri, a former prosecutor, picked a loser.

She was campaigning for her boss, the incumbent for Baltimore's chief city attorney, but voters chose the opposition candidate. The new top prosecutor fired her four days later.

Borzilleri sued, but alas, her case was also a loser. As political purges go, in Borzilleri v. Mosby, it was business as usual.

First Amendment

Baltimore is a big city, but the community of prosecutors is relatively small. About 100 attorneys report to the city's chief prosecutor.

Borzilleri, who had worked as a top assistant for nine years, supported Gregg  Bernstein in his election bid in 2014. She attended events, put a sign on her lawn, and hosted a gathering of supporters.

She also knew Marilyn Mosby, the opposition candidate, and had a cordial relationship with her before the election. But when the campaign heated up, Borzilleri alleged in her complaint, Mosby glared at her and declined to acknowledge her in public.

After she was fired, Borzilleri sued Mosby for violating her First Amendment rights and other tort claims. A federal judge dismissed the suit, and she appealed.

Exemption for Policy Makers

Writing for the U.S. Fourth Circuit Court of Appeals, Judge J. Harvie Wilkinson said the First Amendment did not apply to Borzilleri.

It was a matter of political patronage, the court said, and an exemption for policy makers. A government employee cannot be fired legally for political reasons, but policy makers can be.

"To hold otherwise would undermine the public mandate bestowed upon the victor of a hard-fought election and would needlessly interfere with a state official's managerial prerogative," he wrote for the unanimous panel.

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