Bivens claim nixed in ‘rogue’ cop case

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In a decision that dissenting Judge Jane Kelly said might leave two falsely jailed women with no remedy, the 8th U.S. Circuit Court of Appeals has remanded a lawsuit against “a rogue law enforcement officer” back to Minnesota’s U.S. District Court.

The women, Hamdi A. Mohamud and Hawo O. Ahmed, maintain they were falsely arrested because of St. Paul Police Sgt. Heather Weyker’s lies and manipulation.

Weyker is accused of concocting accusations against the women to shield her own witness in an interstate sex-trafficking investigation, Muna Abdulkadir, from prosecution for allegedly assaulting the two women.

The plaintiffs summoned Minneapolis police after the alleged attack, but were themselves arrested when Weyker intervened by phone. According to the ruling, she told the arresting officer that the women were interfering with her sex-trafficking investigation through witness intimidation.

On Dec. 23, in a 2-1 ruling written Judge David Stras, the 8th Circuit vacated U.S. District Court’s 2018 order. Whether a federal remedy is available to plaintiffs under the U.S. Constitution, Stras wrote, is a question best left to Congress, not the courts.

The 8th Circuit’s ruling doesn’t outright kill the case, but it does eliminate the plaintiffs’ so-called “Bivens” constitutional claim. The matter now heads back to federal District Court to determine whether Weyker violated the women’s civil rights while acting under color of state law under 42 U.S.C. § 1983.

Plaintiffs sued Weyker after they were cleared on charges of witness tampering and obstructing an investigation, but only after both served substantial time incarcerated. They accuse Weyker of providing false information to a Minneapolis police officer, fabricating evidence and withholding exculpatory evidence, leading to their false arrests.

At the time, Weyker was acting both as a local St. Paul cop and as a federally deputized member of an interstate sex-trafficking investigative unit.

Because of Weyker’s dual status, plaintiffs filed the § 1983 claim based on her role as  a St. Paul cop. A separate count, brought under the U.S. Supreme Court’s 1971 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics precedent, reflects Weyker’s simultaneous role as a deputized federal agent.

Weyker argued she was protected by qualified immunity because Mohamud and Ahmed failed to allege any clearly established constitutional violations. Weyker further asserted that no cause of action exists under either Bivens or § 1983 to sue her in her individual capacity.

District Court Judge Judge Joan M. Ericksen’s Sept. 18, 2018, ruling denied Weyker’s motion to dismiss, ruling plaintiffs had a legitimate cause of action. Citing similar rulings, she ruled there was no need to decide if the proper vehicle was § 1983 or Bivens claim. She also ruled that qualified immunity was unavailable to the officer.

Stras’ ruling vacates her order, though it sets aside the qualified immunity issue for the time being.

Stras’ opinion accepts as fact that Abdulkadir was the aggressor in the assault, though government attorney Edward Himmelfarb never conceded that as fact. The ruling also refers to Weyker as a “rogue” officer.

However, in a nearly identical 2019 case (Farah v. Weyker, a case involving the same police officer and the same sex-trafficking sting operation), the 8th Circuit found that if Weyker was acting as a federal officer at the time, there would be no constitutional cause of action available under Bivens.

The Farah court remanded the case to the District Court for consideration of the Section 1983 claim, setting a pattern the court followed again in its Dec. 23 ruling. Judge Ralph R. Erickson joined Stras in the majority.

‘Meaningfully different’

The rationale in both 8th Circuit decisions also is the same: Both were “meaningfully different” from the Bivens case, establishing a “new context” that makes the precedent’s remedy unavailable.

The U.S. Supreme Court in recent decades has placed disfavor on expanding Bivens. Only three successful cases, including the original, have been brought under the precedent since it was established in 1971.

The focus in Bivens, originally filed in 1965, was on a police invasion into a home and officers’ abusive behavior toward the plaintiff once inside. Nothing like that happened in the Ahmed-Mohamud case, Stras noted.

“Here, by contrast, Weyker did not enter a home, even if the actions she allegedly took—like manufacturing evidence and lying—were just as pernicious,” Stras wrote. “Lying and manipulation, however bad they might be, are simply not the same as the physical invasions.”

Additionally, Weyker—unlike the Bivens cops—was not the arresting officer. Nor is “the mechanism of injury” a match in the case. While the injuries in both situations included “humiliation, embarrassment, and mental suffering,” the direct linkage of those injuries to Weyker is more indirect than in Bivens, the judges found.

Finally, proving a Bivens claim would require a different type of showing, Stras writes. Plaintiffs would have to establish that Weyker’s statements were false, were made knowingly, intentionally and with reckless disregard for the truth, and that without them there would be no probable cause for arrest.

But at oral arguments on June 18, Himmelfarb, an appellate staff attorney for the U.S. Department of Justice’s Civil Division representing Weyker, contended that the arresting Minneapolis police officer, Anthijuan Beeks, conducted his own investigation. He found his own probable cause for arrest independent of Weyker’s statements, the lawyer said.

Defense counsel Andrew Phillips Muller argued there are no meaningful differences between Bivens and his clients’ case. “This was—as in Bivens—street-level police officers, working in conjunction without probable cause to affect a warrantless arrest and seizure,” he said.

Stras and Erickson disagreed, ruling that any similarities are not substantial enough. And given the U.S. Supreme Court’s reluctance to expand the remedy, they ruled, even small differences between that case and this one are meaningful.

“But ‘a modest extension is still an extension,’” the majority opinion said, “… even if it involves ‘the same constitutional provision.’” The internal citations come from U.S. Supreme Court rulings in Ziglar v. Abbasi (2017) and Hernández v. Mesa (2020).

The ruling doesn’t kill the case, however, according to Stras.

“If the district court determines on remand that Weyker was acting under color of state law, their section 1983 claims may proceed,” he wrote, “subject to Weyker’s defense of qualified immunity.”

Dissent

In her dissent, Kelly agreed in part with the majority on the Bivens issue. The remedy is unavailable on the women’s claim that Weyker violated their Fourth Amendment rights by submitting a false affidavit to the District Court, she wrote.

But she disagreed that plaintiffs have no constitutional claim on their charge that Weyker lied to Beeks, resulting in an unlawful arrest. “This was the claim at issue in Bivens,” Kelly writes.

The fact that the Bivens involved use of force inside a home to effectuate a false arrest doesn’t meaningfully separate that case from the false arrests of Mohamud and Ahmed, Kelly contends.

Similarly, she adds, the mechanism of injury and the role Weyker played are the same as in Bivens—both were actions by law enforcement officers, one of whom was Weyker. And the probable cause needed to prove plaintiffs’ claim would be the same as that required in Bivens, Kelly wrote.

“I find no meaningful difference between plaintiffs’ Fourth Amendment false arrest claim and what the Supreme Court recognized in Bivens and has continued to recognize in Abbasi and Hernández,” Kelly wrote. “In my view, a Bivens remedy is available to Ahmed and Mohamud on this claim.”

In a footnote, Kelly mentions that a third woman arrested with Mohamud and Ahmed, Ifrah Yassin, had her case considered separately. In Yassin’s case, Kelly writes, the District Court found Weyker acted as a federally deputized officer, not under color of Minnesota state law.

If it finds that way in the Mohamud-Ahmed case on remand, Kelly wrote, the § 1983 claim would likewise be unavailable.

“The court’s decision here will thus have the likely effect of denying plaintiffs any legal remedy for the constitutional violation they allege,” she wrote.

Plaintiff’s attorney Muller did not return calls for comment on the case.