A police officer who had a woman jailed for over two years on false charges in connection with a bogus sex-trafficking ring cannot be sued, a court confirmed last week, because she was acting under color of federal law—a puzzling reminder of the inverse relationship between power and accountability in government.
Hamdi Mohamud's legal woes stretch back quite a ways. As I wrote in 2021:
For years, St. Paul police officer Heather Weyker was swamped. She gathered evidence, cultivated witnesses, filled out the police reports, testified under oath—all in connection with an interstate sex trafficking ring run by Somali refugees. But perhaps most impressive is that she did all that while fabricating the same ring she was investigating, which resulted in 30 indictments, 9 trials, and 0 convictions.
In 2011, Mohamud, then just 16 years old, found herself swept up in that morass after a woman named Muna Abdulkadir attacked her and her friends at knifepoint. Inconveniently for Mohamud, Abdulkadir was crucial to Weyker's sex-trafficking investigation that would later unravel. After a call from Abdulkadir—during which she reportedly informed Weyker she had carried out a knife attack and was worried her arrest was imminent—Weyker advised other members of law enforcement that Abdulkadir was a federal witness. She had information and documentation, Weyker noted, that Mohamud and her friends were out to intimidate Abdulkadir.
"The first part was true, but everything else Weyker said was false," summarizes Judge David Stras for the U.S. Court of Appeals for the 8th Circuit. "There was no 'information' or 'documentation' that anyone was trying to intimidate Abdulkadir. Nevertheless, based on what Weyker told him, Officer [Anthijuan] Beeks arrested Mohamud and the others for witness tampering."
The government would ultimately dismiss those trumped-up charges, but only after Mohamud spent 25 months in federal custody.
When Mohamud sued over that injustice, she succeeded. The U.S. District Court for the District of Minnesota in 2018 declined to give Weyker qualified immunity, finding it was already clearly established at the time of her arrest that Weyker's alleged misconduct violated the Fourth Amendment.
Two years later, Mohamud's luck would sour on appeal. Though the 8th Circuit conceded that Weyker's sex-traffing investigation was "plagued with problems from the start"—the trial judge found, for example, that she fabricated information and lied multiple times under oath—the court said she was, in fact, immune. But that wasn't because she was entitled to qualified immunity. Rather, although Weyker was a St. Paul police officer, she had been cross-deputized on a federal task force to carry out the investigation, making available to her the legal protections afforded to federal law enforcement—a much higher bar for alleged victims to clear.
Lawsuits against federal employees are subject to the Bivens doctrine. Named after the landmark 1971 Supreme Court case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the ruling allowed a man to sue the federal agents who conducted a warrantless raid on his home and then strip-searched him at a courthouse.
But the Supreme Court has made it almost cartoonishly difficult for plaintiffs to make use of what was a very good decision. In 2017, the Court ruled in Ziglar v. Abbasi that Bivens claims against federal agents can survive only if they pass a two-pronged test. Step one: Does the claim arise in a "new context"—in other words, is it "different in a meaningful way from previous Bivens cases decided by" the Supreme Court? Unless a complaint mirrors the original facts of Bivens almost identically, or the facts of the small handful of cases that were allowed to proceed in times past, then the answer is "yes." Step two: Are there any "special factors counselling hesitation"—that is, reasons the judiciary should think twice about creating a new damages remedy against federal agents? The answer in the courts to the latter question, it seems, is also essentially always "yes."
"The focus in Bivens was on an invasion into a home and the officers' behavior once they got there. 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," wrote Stras for the 8th Circuit in 2020. "Lying and manipulation, however bad they might be, are simply not the same as the physical invasions that were at the heart of Bivens."
Mohamud's remaining hope, then, came down to proving that Weyker was acting under color of state law, because federal employees are, somewhat arbitrarily, granted even greater legal leeway than state agents. It "makes little difference that the federal task force described the St. Paul Police Department as the 'lead agency,'" wrote Stras in July. "Even if Weyker's cross-deputization and the involvement of the U.S. Attorney were not enough to make her actions federal, the investigation had grown to include at least one other state, Tennessee, and multiple federal agencies….She then purported to act based on her federal authority when she explained Abdulkadir's significance to Officer Beeks and provided an affidavit supporting the filing of federal charges against Mohamud."
Federal authority is arguably the most powerful form, especially in law enforcement. And yet Mohamud's case bafflingly illustrates that greater power comes, paradoxically, with diminished responsibility.
The post A Cop Lied, Fabricated a Sex-Trafficking Case, and Jailed a Teen on False Charges—and <i>Still</i> Can't Be Sued appeared first on Reason.com.
