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After failed prosecution, defendants fight to sue

As prosecutorial fiascos go, it’s hard to imagine a more colossal one than the massive child sex trafficking investigation spearheaded by Sgt. Heather Weyker of the St. Paul Police Department.

Of course, it didn’t look that way back in 2010, when federal authorities in Nashville, Tennessee first announced the indictments of 30 individuals, mostly young male Somali immigrants from the Twin Cities area. At the time, a top official at Immigration and Customs Enforcement called the bust up of the supposed ring one of the agency’s “most significant” cases in recent memory.

The defendants — described as “members or associates” of three Minnesota-based gangs — were accused of prostituting girls as young as 12 in the Twin Cities, Nashville, and Columbus, Ohio over a ten-year period.

But in the end, the cases imploded spectacularly and in full public view.

After the first trial in 2012, a federal jury in Nashville outright acquitted six of nine defendants. The convictions of three others were promptly tossed out by the presiding judge, U.S. District Judge William Haynes of the Middle District of Tennessee. Haynes also went on to excoriate Weyker for exaggerating and possibly even fabricating key details.

Despite the well-publicized tongue lashing, some of the other defendants languished behind bars in county jails in Kentucky until last March, when a panel from the U.S. 6th Circuit Court of Appeals provided the capstone.

In a scathing opinion affirming Haynes’ earlier ruling, the appeals court panel called the government’s case “likely a fictitious story,” labeled the two star witnesses “unworthy of belief” and, much like Haynes, pilloried Weyker. The next day, St. Paul police brass placed Weyker on administrative leave. She was later reassigned to a non-investigative role.

On Wednesday, the convoluted saga re-emerged in the Minneapolis courtroom of U.S. District Court Judge Joan Ericksen.

On the plaintiffs’ side, four teams of lawyers — collectively representing 21 of the former defendants in the criminal case — urged Ericksen to give the green light to civil lawsuits against Weyker, her former supervisor, Sgt. John Bandemer, unnamed officials of St. Paul Police Department, and the city of St. Paul.

All told, the plaintiffs are seeking more than $200 million in damages for violations of their constitutional rights under the Fourth, Fifth and 14th Amendments.

The common theme of the complaints: that Weyker manufactured key evidence and induced two chief witnesses — the purported victims of the trafficking — to give false testimony with promises of financial help and other assistance.

Over the course of the two-hour motion hearing, lawyers from both sides sparred over a broad array of legal and constitutional questions.

Atop that list: Was Weyker’s purported malfeasance committed in her capacity as an agent of the St. Paul Police Department — a local government agency — or in her role as an agent of the federal government?

If Judge Ericksen rules it is the former, the litigation would proceed as a Monell claim, a commonly used vehicle in police brutality suits which provides remedies for constitutional wrongs committed by state or municipal actors under Section 1983 of the U.S. Code.

But in the view of David Cutler, one of Weyker’s lawyers, the lawsuits should be prosecuted as Bivens actions, which provide for remedies in such cases against federal government agents.

Cutler, who was one of three Department of Justice attorneys who flew in from Washington, D.C., for the hearing, argued that Bivens is appropriate because Weyker was federally deputized by the U.S. Marshals Service at the time the suspects were arrested.

And in a Bivens action, Cutler contended, the plaintiffs can’t defeat summary judgment.

“The U.S. Supreme Court and the 8th Circuit have never recognized a Bivens remedy for the type of wrongful federal prosecution plaintiffs seek here, let alone in the context of a child sex trafficking investigation,” said Cutler, as he urged Ericksen to dismiss the suits.

To do otherwise, he said would only serve to “deter the vigorous investigation and prosecution of difficult to prove such cases.”

But Robert Bennett, whose firm is representing 11 of the plaintiffs, argued that his clients’ lawsuits should be allowed to proceed under Section 1983. That’s because Weyker first initiated the investigation in 2008, long before she was cross-deputized by the U.S. Marshall Service to make arrests in the case.

“Our position is that you can’t have two and a half years of unconstitutional state actor activity and have it immunized by simple deputation,” said Bennett, a managing partner of at the Minneapolis firm of Gaskins Bennett Birrell Schupp.

Bennett said more discovery is needed to properly evaluate the Bivens status of Weyker’s co-defendant, Bandemer, who was also cross-deputized by a federal agency.

Brant Levine, one of the three DOJ attorneys who represents Weyker, focused his arguments on qualified immunity.

“It boils down to one simple question: What would a reasonable officer do when presented with a similar factual situation?” Levine said.

Although Levine acknowledged the existence of inconsistencies in the stories of the alleged victims — inconsistencies that the plaintiffs’ lawyers have cast as red flags — he said that’s not uncommon in sex trafficking cases.

“Does a reasonable officer close her file and move on to the next case? Here Officer Weyker persevered and now she’s being sued, personally,” Levine said. “Qualified immunity is meant to protect public servants from retaliatory lawsuits like this.”

And even if there is evidence that Weyker fabricated details, Levine continued, she is nonetheless protected by qualified immunity because there was still probable cause to believe the defendants committed other crimes.

Levine also criticized the lawsuits from the plaintiffs, which he said were “cut and paste” from the 6th Circuit opinion.

“The question before you is, did probable cause exist at the time of the indictments?” he said. “The 6th Circuit’s opinion was written six years after the indictments and it looks back in hindsight at all the new information that came to light.” But what’s relevant, he said, was whether there was probable cause at the time of the indictments.

Ericksen gave little indication of how she would rule, saying only that she would issue an opinion in due course.

By that time, the number of plaintiffs may have increased.

After the hearing, Joshua Newville, an attorney for one of the plaintiffs, said he’s spoken with other lawyers who say they still plan to file suits on behalf of other individuals.

In most ways, Newville opined, the legal issues and allegations raised by lawsuits are not that different from those found in more conventional wrongful-arrest cases against police.

“What’s most remarkable to me is the sheer length of time that Weyker was able to continue this charade,” said Newville, who noted that Haynes first identified the potential problems with Weyker’s evidence in 2012. “It’s beyond explanation that St. Paul didn’t intervene at that time and she was allowed to continue on this power trip for four more years.”

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