Petition for Writ of Certiorari — Hamdi Mohamud, Petitioner v. Heather Weyker

Supreme Court briefAug 6, 2021

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Appendix A

United States Court of Appeals

for the Eighth Circuit

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No. 18-3461

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Hawo O. Ahmed

Plaintiff - Appellee

Heather Weyker, in her individual

capacity as a St. Paul Police Officer

Defendant - Appellant

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No. 18-3471

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Hamdi A. Mohamud

Plaintiff - Appellee

Heather Weyker, in her individual

capacity as a St. Paul Police Officer

Defendant - Appellant

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Appeals from United States District Court

for the District of Minnesota

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Submitted: June 18, 2020

Filed: December 23, 2020

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Appendix A

Before KELLY, ERICKSON, and STRAS, Circuit Judges.

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STRAS, Circuit Judge.

The plaintiffs are trying to hold a rogue law-enforcement officer responsible for landing them in jail

through lies and manipulation. But for us, a more fundamental question is at stake: who gets to make the

call about whether a federal remedy is available? As

we recently held, the decision lies with Congress, not

us, so we vacate the district court’s ruling. See Farah v.

Weyker, 926 F.3d 492 (8th Cir. 2019).

This appeal is another chapter in the aftermath of

an investigation into an alleged interstate sex-trafficking scheme that was plagued with problems from the

start. Of the thirty people who were indicted, United

States v. Adan, 913 F. Supp. 2d 555, 558–59 (M.D. Tenn.

2012), only nine were ultimately tried, United States v.

Fahra, 643 F. App’x 480, 483 (6th Cir. 2016), and each

was acquitted, id. at 484. Since then, numerous civilrights complaints have been filed against St. Paul Police Officer Heather Weyker for her conduct during the

investigation.

Two of those complaints were filed by Hawo Ahmed and Hamdi Mohamud. They, along with their

Appendix A

friend Ifrah Yassin, were attacked one evening at an

apartment building in Minneapolis. Their attacker was

Muna Abdulkadir, a witness for the government in the

sex-trafficking case. During the incident, Abdulkadir

“smash[ed]” Ahmed’s windshield and “struck” Yassin,

all while “brandishing [a] knife.” Following the attack,

Ahmed and Mohamud called 911, and Abdulkadir

made a call of her own to Weyker. Worried about the

possibility of losing a witness, Weyker sprang into action.

She first contacted Minneapolis Police Officer

Anthijuan Beeks, who responded to the 911 call. Weyker told him that she had “information and documentation” that Ahmed, Mohamud, and Yassin “had been

actively seeking out Abdulkadir” in an effort “to intimidate” her for agreeing to cooperate in a federal investigation.

Abdulkadir was indeed a federal witness, but everything else Weyker said was “untrue.” She had no

“‘information’ or ‘documentation.’” Rather, she just

wanted to “shield[ ] Abdulkadir from arrest” to “further

incentiv[ize] . . . her” continued participation in the investigation. The plan worked. Officer Beeks arrested

Ahmed, Mohamud, and Yassin “on suspicion of tampering with a federal witness,” see 18 U.S.C. § 1513(b),

based “on Weyker’s intentional misrepresentations.”

Weyker did not stop there. The next day, she prepared a criminal complaint and a sworn affidavit. In

doing so, she once again “fabricated facts, knowingly

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relayed false information, and withheld exculpatory

facts, all with the intention that [the three women]

would continue [to be] detained for crimes [for] which

she knew there [was] no actual probable cause or arguable probable cause.”

These actions were not without consequences. Mohamud, a minor at the time, spent just short of 25

months in federal custody, with a “small portion” of it

on supervised release. Ahmed gave birth during the

more than 25 months she spent in custody. Eventually,

the government dismissed the case against Mohamud,

and a jury acquitted Ahmed.

After their release, both women sued Weyker in

her individual capacity on one overarching false-arrest

theory. See U.S. Const. amend. IV; Franks v. Delaware,

438 U.S. 154, 155–56 (1978); Small v. McCrystal, 708

F.3d 997, 1006 (8th Cir. 2013). Due to Weyker’s dual

status, they pleaded two causes of action against her:

one as a St. Paul police officer, see 42 U.S.C. § 1983, and

another as a deputized federal agent, see Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388, 397 (1971).

Weyker asked the district court to dismiss both

claims. See Fed. R. Civ. P. 12(b)(6). One reason was

qualified immunity: the requirement that any right

she may have violated had to be clearly established.

See Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir.

2019) (en banc). The other was based on the limited

availability of a cause of action against federal officers.

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See Bivens, 403 U.S. at 397. The district court allowed

both claims to move forward, concluding both that

qualified immunity was unavailable and that the

plaintiffs had a cause of action against Weyker.1

Just last year, we decided a nearly identical case

that also involved Weyker. See Farah, 926 F.3d 492.

Five of the plaintiffs had been charged and detained as

suspected participants in the sex-trafficking scheme.

Id. at 496–97. Some were acquitted following a trial,

and the government dropped the charges against the

others. Id. at 496. All, however, accused Weyker of “exaggerating and inventing facts in reports[;] hiding [exculpatory] evidence”; manipulating witnesses; and

“deceiv[ing] prosecutors, the grand jury, and other investigators” along the way. Id. at 496–97. Like Ahmed

and Mohamud, they sought relief under both Bivens

and section 1983. Id. at 497. We held that, if Weyker

For this reason, the availability of a Bivens action is

squarely before us on appeal. Indeed, Weyker has argued all along

that the plaintiffs do not have a cause of action against her as a

deputized federal officer. See Defendant’s Memorandum in Support of Motion to Dismiss at 37–47, 0:17-cv-02070-JNE-TNL (D.

Minn. Oct. 20, 2017), ECF No. 19; see also Plaintiff Mohamud’s &

Plaintiff Ahmed’s Memorandum of Law Opposing Defendant’s

Motion to Dismiss at 15–16, 0:17-cv-02070-JNE-TNL (D. Minn.

Dec. 4, 2017), ECF No. 25. It is also her lead argument on appeal.

See Consolidated Br. for the Appellant at 13–26; see also Consolidated Response Br. for the Appellees at 12–15. To the extent that

the dissent has second thoughts about our decision to reach this

issue now, Farah all but settled that we can. 926 F.3d at 497,

502–03, 503 n.1 (treating the Bivens issue in a similar posture as

a “threshold question” and declining to decide qualified immunity

first).

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was acting as a federal officer at the time, no cause of

action was available. Id. at 502. We then remanded for

consideration of whether the plaintiffs could proceed

under section 1983. Id. at 502–03.

Yassin was the final plaintiff in the case. See id.

We never decided whether an implied cause of action

was available to her because Weyker never “meaningfully briefed” the issue. Id. at 503. Today, Weyker asks

us to answer the question that we left open in Farah.

II.

We now address this “threshold question”: whether

an implied cause of action is available to Ahmed and

Mohamud under the Constitution itself, more commonly known as a “Bivens action.” Hernandez v. Mesa,

140 S. Ct. 735, 742–43 (2020); Farah, 926 F.3d at 497;

see Bivens, 403 U.S. at 397. Answering it calls for “a

two-step inquiry,” Hernandez, 140 S. Ct. at 743, over

which our review is de novo, Farah, 926 F.3d at 497. At

the motion-to-dismiss stage, we assume that all factual

allegations in their complaints are true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“On only three occasions has the Supreme Court

[recognized] a cause of action under Bivens.” Farah,

926 F.3d at 497; see Carlson v. Green, 446 U.S. 14 (1980);

Davis v. Passman, 442 U.S. 228 (1979); Bivens, 403 U.S.

Appendix A

388. Expanding Bivens is, according to the Supreme

Court, “now a ‘disfavored’ judicial activity.” Ziglar v.

Abbasi, 137 S. Ct. 1843, 1857 (2017) (quoting Iqbal,

556 U.S. at 675); see also Hernandez, 140 S. Ct. at 743

(“[F]or almost 40 years, we have consistently rebuffed

requests to add to the claims allowed under Bivens.”).

The reason is that the separation of powers generally

vests the power to create new causes of action in Congress, not us. See, e.g., Hernandez, 140 S. Ct. at 742; Abbasi, 137 S. Ct. at 1857.

With this presumption against creating new

Bivens actions in mind, Neb. Beef, Ltd. v. Greening, 398

F.3d 1080, 1084 (8th Cir. 2005), our analysis has two

steps. Under step one, if a case “present[s] one of the

three Bivens claims the [Supreme] Court has approved

in the past,” it “may proceed.” Farah, 926 F.3d at 498

(internal quotation marks omitted). If it does not, then

we go on to the next step. Id.

At step two, the question is whether “any special

factors counsel hesitation before implying a new cause

of action.” Id. (internal quotation marks and brackets

omitted). If there is “reason to pause before applying

Bivens in a new context or to a new class of defendants[,] we [must] reject the request.” Hernandez, 140

S. Ct. at 743.

Just as we concluded in Farah, “[n]o Supreme

Court case exactly mirrors the facts and legal issues

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presented here.” 926 F.3d at 498. Neither Carlson nor

Davis is a match, which leaves Bivens as the only possibility. See Carlson, 446 U.S. at 1618, 16 n.1 (allowing a cruel-and-unusual-punishment claim to proceed

after prison officials fatally mishandled an inmate’s serious asthmatic condition); Davis, 442 U.S. at 235–36,

243–44 (recognizing a cause of action for a sex-discrimination claim under the Fifth Amendment).

The claims in Bivens arose out of a warrantless

search and an illegal arrest. 403 U.S. at 389. Specifically, federal law-enforcement officers had “threatened

to arrest [Bivens’s] entire family” as they shackled

him; “searched [his] apartment from stem to stern”;

and after booking and interrogating him, “subjected

[him] to a visual strip search.” Id.; see Abbasi, 137

S. Ct. at 1860 (describing the case as “a claim against

FBI agents for handcuffing a man in his own home

without a warrant”). Under those circumstances, the

Supreme Court held that he had “a cause of action

[against the officers] under the Fourth Amendment”

and that “money damages” were potentially available

“for any injuries he ha[d] suffered.” Bivens, 403 U.S. at

397.

Our task is to determine whether this “case is different in a meaningful way from . . . Bivens.” See Abbasi, 137 S. Ct. at 1859. As we explained in Farah,

relevant differences can include, among other things,

Appendix A

“the sorts of actions being challenged, the mechanism

of injury, and the kinds of proof those injuries would

require.” 926 F.3d at 500; see also Abbasi, 137 S. Ct.

at 1859–60 (providing “examples” of differences

without establishing “an exhaustive list”). Even

“small” differences can be “meaningful.” Abbasi, 137

S. Ct. at 1865 (calling this step “eas[y to] satisf[y]”); see

Hernandez, 140 S. Ct. at 743 (“[O]ur understanding of

a ‘new context’ is broad.”). The case before us is meaningfully different from Bivens in four ways.

First, “the sorts of actions being challenged” here

are different. Farah, 926 F.3d at 500. The focus in

Bivens was on an invasion into a home and the officers’

behavior once they got there. 403 U.S. at 389. 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. Farah, 926 F.3d

at 499; see also Franks, 438 U.S. at 155–56 (holding

that fabricating probable cause through material and

knowingly false information in a warrant application

violates the Fourth Amendment); Small, 708 F.3d at

1006 (explaining that an officer violates an individual’s

Fourth Amendment rights when he persuades someone else that there is probable cause “based solely on

information the officer knew to be false” (quotation

marks omitted)). Lying and manipulation, however

bad they might be, are simply not the same as the

physical invasions that were at the heart of Bivens. See

Farah, 926 F.3d at 499; cf. Canada v. United States, 950

F.3d 299, 307 (5th Cir. 2020) (holding that the Supreme

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Court’s prior Bivens cases were meaningfully different

from a situation in which IRS agents had “intentionally manipulated a penalty assessment”).

Second, and closely related, Weyker’s role in the

arrests was different. In contrast to the officers in

Bivens, she did not arrest anyone herself, nor was she

even on the scene when the arrests occurred. See Abbasi, 137 S. Ct. at 1859–60 (listing “the generality or

specificity of the official action” as a meaningful potential difference). Rather, she provided allegedly false

information to another officer in a different police department, who then arrested the plaintiffs. See Cantú

v. Moody, 933 F.3d 414, 423 (5th Cir. 2019) (holding

that a “claim involv[ing] different conduct by different

officers from a different agency” than in Bivens presented a new context). In this way, Weyker’s actions fell

somewhere along the spectrum between a Franks-type

violation and a simple warrantless arrest. Compare

Franks, 438 U.S. at 155–56 (involving a situation in

which an officer makes “a false statement knowingly

and intentionally, or with reckless disregard for the

truth”), with District of Columbia v. Wesby, 138 S. Ct.

577, 586 (2018) (“A warrantless arrest is reasonable if

the officer has probable cause to believe that the suspect committed a crime in the officer’s presence.”). Not

only is this factual difference from Bivens meaningful,

it also narrows the doctrinal divide between a false-affidavit theory, which the dissent concedes is foreclosed

by Farah, and one based solely on the initial arrest itself.

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Third, although “the mechanism of injury” is a

closer call, there is still one meaningful difference.

Farah, 926 F.3d at 499. In Bivens, the injuries included

“humiliation, embarrassment, and mental suffering

[that] were directly caused by the officers’ conduct.” Id.

(internal quotation marks omitted). Ahmed and Mohamud suffered these same injuries, but the “direct[ ]

caus[al]” chain is missing. Id. Multiple “independent

legal actors”—Officer Weyker, Officer Beeks, and even

prosecutors—played a role.2 Id. Indeed, the dissent

concedes as much by invoking the collective-knowledge

doctrine. See United States v. Thompson, 533 F.3d 964,

969 (8th Cir. 2008) (explaining the collective-knowledge

doctrine, which involves multiple actors). Even though

it is true that “the mechanism of injury” is less attenuated here than in Farah, which involved “a series of

intervening steps,” the claims are still less “straightforward” than in Bivens. Farah, 926 F.3d at 499.

Fourth, proving these claims would require a different type of showing. Abbasi, 137 S. Ct. at 1860. For

the allegedly false affidavit, Ahmed and Mohamud

would have to establish that (1) Weyker’s statements

were false; (2) she made them “knowingly and intentionally, or with reckless disregard [for] the truth”; and

(3) without them, there would be no probable cause.

We read the plaintiffs’ allegations as primarily concerned

with the role that Weyker played in their arrests. To the extent

they seek “damages arising out of [their] post-arrest indictment[s],”

any such “claim must proceed, if at all, under section 1983.”

Farah, 926 F.3d at 503 n.2.

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Williams v. City of Alexander, 772 F.3d 1307, 1311 (8th

Cir. 2014) (quotation marks omitted); see Haywood v.

City of Chicago, 378 F.3d 714, 719–20 (7th Cir. 2004)

(applying Franks to misrepresentations made in the

context of continued detention). Bivens did not require

this type of fact-checking and conscience-probing,

403 U.S. at 389; Farah, 926 F.3d at 499, which can, as

the Supreme Court has warned, impose “substantial

costs,” Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982).

Similarly, for the arrest itself, there would have to be

an examination into whether Officers Beeks would

have had probable cause to arrest the plaintiffs in the

absence of Weyker’s allegedly false information. See

Green v. Nocciero, 676 F.3d 748, 754–55 (8th Cir. 2012);

Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 814–18

(8th Cir. 2010); see also Smoak v. Hall, 460 F.3d 768,

779–80 (6th Cir. 2006) (explaining that whether reasonable suspicion existed depended on “the facts

known to the . . . troopers who actually participated

in the seizure,” not simply what the dispatchers, who

relayed misleading and incomplete information, told

them). Although it would not quite rise to the level of

conscience-probing, it would still require fact-checking

what Beeks knew and when. See Green, 676 F.3d at

754–55; Fisher, 619 F.3d at 814–18. No comparable inquiry was in play in Bivens. 403 U.S. at 389 (involving

actions only by the arresting officers).

When one or more meaningful differences exist,

it is not enough to identify a few similarities. The

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plaintiffs and dissent make much of the fact that this

case, like Bivens, arose out of an allegedly illegal arrest. But “a modest extension is still an extension,” Abbasi, 137 S. Ct. at 1864, even if it involves “the same

constitutional provision,” Hernandez, 140 S. Ct. at 743.

If the test sounds strict, it is. As an example, the

Supreme Court refused to recognize an implied cause

of action for a claim of inadequate medical treatment

against officers in a privately contracted prison, Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 63–64, 73–74

(2001), even though it had previously recognized an

identical claim against a prison guard in a federally

run prison, Carlson, 446 U.S. at 16–18. See Hernandez,

140 S. Ct. at 743 (comparing Carlson and Malesko on

this basis). If Malesko was a new context, then this

case is too. See Farah, 926 F.3d at 498–500; see also

Abbasi, 137 S. Ct. at 1856 (explaining that the Supreme Court had “no[ ] inten[t] to cast doubt on the

continued force, or even the necessity, of Bivens in the

search-and-seizure context in which it arose” (emphasis added)); Cantú, 933 F.3d at 423 (concluding that an

unlawful-seizure claim under the Fourth Amendment

presented a new context when the plaintiff alleged

that officers “falsified affidavits,” rather than “entered

[a] home without a warrant”).

At step two, the task is to determine whether,

in this new context, an implied cause of action is available. The focus is on whether there are any “special

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factors” that “cause[ ] [us] to pause before acting without express congressional authorization.” Abbasi, 137

S. Ct. at 1857–58 (quotation marks omitted). “It does

not take much,” Farah, 926 F.3d at 500, because Congress is usually “in the better position” to weigh the

costs and benefits of creating “a new substantive legal

liability,” id. (quoting Abbasi, 137 S. Ct. at 1857). On

this point, Farah once again does much of the heavy

lifting. Id.

Just like in Farah, a trial would “risk . . . burdening and interfering with the executive branch’s investigative . . . functions.” Id. Perhaps the level of

interference would be less than in Farah, as the plaintiffs argue, but a jury would still need to determine

what Weyker knew, what she did not know, and her

state of mind at the time. Williams, 772 F.3d at 1311.

There are, as we explain above, “substantial costs” associated with requiring public officials to litigate these

types of issues, including “the diversion” of public resources and deterring “able citizens from . . . public office.” See Harlow, 457 U.S. at 814, 816. It may well be

that the costs are worth it, but Congress is better

equipped than we are to make the call. Farah, 926 F.3d

at 501.

Moreover, as in Farah, other remedies are available “to address injuries of the sort the plaintiffs have

alleged[ ].” Id. “The so-called Hyde Amendment allows

courts to award attorney fees to criminal defendants

who prevail against ‘vexatious, frivolous, or . . . bad[-]

faith’ positions taken by the government.” Id. (quoting

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Act of Nov. 26, 1997, Pub. L. No. 105-119, § 617, 111

Stat. 2440, 2519 (codified at 18 U.S.C. § 3006A note)).

And for “those who are wrongly convicted and sentenced,” damages may be available. Id. (citing 28 U.S.C.

§ 1495). We are especially reluctant to supplement

those remedies with our own, which could upset the

existing remedial structure. Abbasi, 137 S. Ct. at 1858;

Farah, 926 F.3d at 501–02. This factor alone, as the Supreme Court has explained, is “a convincing reason”

not to extend Bivens. Abbasi, 137 S. Ct. at 1858 (quotation marks omitted).

None of this should be surprising. After all, the Supreme Court has not recognized a new Bivens action

“for almost 40 years.” Hernandez, 140 S. Ct. at 743; see

also Abbasi, 137 S. Ct. at 1857 (collecting cases). Our

conclusion here is no different.

III.

So what happens next? Just because a Bivens remedy is off the table does not mean the plaintiffs’ cases

are over. If the district court determines on remand

that Weyker was acting under color of state law, their

section 1983 claims may proceed, subject to Weyker’s

defense of qualified immunity.3 Farah, 926 F.3d at

It is premature at this point to address Weyker’s argument

that the district court abused its discretion when, in addressing

qualified immunity, it declined to take judicial notice of matters

outside the pleadings. See Cravens v. Smith, 610 F.3d 1019, 1029

(8th Cir. 2010) (standard of review); 2 James Wm. Moore, Moore’s

Federal Practice § 12.34[2], at 12-94 (3d ed. 2020).

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502–03, 503 n.1 (declining “to skip over the undercolor-of-state-law element to decide . . . qualified immunity”); see Magee v. Trs. of Hamline Univ., 747 F.3d

532, 535 (8th Cir. 2014) (evaluating whether an officer

acted under color of state law).

IV.

We accordingly vacate and remand to the district

court to dismiss the plaintiffs’ Bivens claims and determine whether their cases can proceed under 42 U.S.C.

§ 1983.

KELLY, Circuit Judge, dissenting.

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court cautioned that extending Bivens to new

contexts is a “disfavored judicial activity.” Id. at 1857

(cleaned up). But because I believe that one of plaintiffs’ claims does not extend Bivens to a new context, I

respectfully dissent from the court’s conclusion otherwise.4

As an initial matter, I note that it may be premature to

address Officer Weyker’s claim that Bivens does not afford a potential remedy for plaintiffs’ claimed injuries. Officer Weyker appeals the district court’s denial of her motion to dismiss the case

based on qualified immunity. But that opinion concluded that

there was “no need to decide” at that time whether Bivens or 42

U.S.C. § 1983 provided the “proper vehicle” for plaintiffs’ claims,

and we “ordinarily, we do not decide issues the district court did

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In 2017, plaintiffs Hawo Ahmed and Hamdi Mohamud filed complaints against Officer Heather Weyker in federal court. The complaints identify two

separate instances in which Officer Weyker allegedly

lied about Ahmed and Mohamud’s suspected criminal

activity, leading to their detention in federal custody.

First, Ahmed and Mohamud claim that Officer Weyker

knowingly provided false information to Officer Anthijuan Beeks, which caused Officer Beeks to arrest and

transport them to jail when he otherwise had no basis

to do so. Second, they claim that, after this initial arrest, Officer Weyker submitted a federal criminal complaint and supporting affidavit, in which she omitted

exculpatory information and included information that

she knew to be false. This affidavit led the court to issue arrest warrants for Ahmed and Mohamud. They

were then placed in federal custody and eventually indicted for violating multiple federal laws. In both of

these actions, Ahmed and Mohamud contend, Officer

Weyker fabricated “probable cause that did not otherwise exist,” causing them to be “seized, arrested, detained, charged and indicted” in violation of their

Fourth Amendment rights.

I agree with the court that, based on our precedent, no Bivens remedy is available for plaintiffs’ claim

that Officer Weyker violated their Fourth Amendment

rights by submitting a false affidavit to the district

not adjudicate.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,

603 (8th Cir. 2009) (quoting Daisy Mfg. Co. v. NCR Corp., 29 F.3d

389, 395 (8th Cir. 1994)).

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court. In Farah v. Weyker, 926 F.3d 492 (8th Cir. 2019),

this court held that a claim that a federally deputized

officer (namely, Officer Weyker) “duped prosecutors and

a grand jury into believing that the plaintiffs were part

of a multi-state sex-trafficking conspiracy” was “meaningfully different” from established Bivens cases. Id. at

498. Because “special factors” weighed against extending Bivens to the new context, we declined to do so. Id.

at 500-02. As largely the same differences and special

factors are present in Ahmed and Mohamud’s second

allegation against Officer Weyker, Farah forecloses the

possibility of Bivens relief on that claim.

But Farah does not foreclose relief for Ahmed and

Mohamud’s first allegation—that Officer Weyker lied

to Officer Beeks, which resulted in their unlawful arrest.5 As Ahmed and Mohamud describe it in their complaints, this claim asserts that Officer Weyker caused

them to be arrested without probable cause. See

United States v. Thompson, 533 F.3d 964, 969-70 (8th

Cir. 2008) (explaining that the question of whether officers have probable cause to arrest is based on the

collective knowledge of all officers involved). This was

the claim at issue in Bivens. Though Bivens also alleged that officers used unreasonable force during their

search of his home, one of his core contentions was that

the officers did not have probable cause when they

The court describes prosecutors as “play[ing] a role” in the

events underlying Ahmed and Weyker’s claim. Supra at 8. On my

read, the only legal actors involved in the arrest were Officer Weyker and Officer Beeks.

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arrested him. See Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389

(1971) (“[Bivens’s] complaint asserted that the arrest

and search were effected without a warrant, and that

unreasonable force was employed in making the arrest; fairly read, it alleges as well that the arrest was

made without probable cause.”). Rather than representing an extension of Bivens, plaintiffs’ claim falls

squarely within the cause of action recognized by

Bivens itself. Cf. Abbasi, 137 S. Ct. at 1856 (refusing to

“cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in

which it arose”); see also Hicks v. Ferreya, 965 F.3d 302,

311-12 (4th Cir. 2020) (applying Bivens to a claim of

unlawful seizure during a traffic stop); Jacobs v. Alam,

915 F.3d 1028, 1038-39 (6th Cir. 2019) (applying Bivens

to claims for excessive force, false arrest, malicious

prosecution, fabrication of evidence, and civil conspiracy); Brunoehler v. Tarwater, 743 F. Appx. 740, 743-44

(9th Cir. 2018) (unpublished) (applying Bivens to

claims of search and arrest without probable cause).

In concluding that plaintiffs’ claim presents a new

context, the court highlights several differences between plaintiffs’ claim and Bivens that it finds relevant: differences between the “sorts of actions being

challenged,” “the mechanism of injury” and role of Officer Weyker in that injury, and the type of showing required to prove plaintiffs’ claim. See supra at 7-8. To

the court, these differences require it to move on to

step two of Abbasi and determine whether “special

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factors” exist that would counsel hesitation in extending a Bivens remedy.

I do not see the differences that the court does. As

to the first claimed difference, the type of action being

challenged here was also at issue in Bivens: an arrest

unsupported by probable cause. That Bivens also included a separate claim about the officers’ use of force

within Bivens’s home does not undermine the fact that

in both that case and this one the plaintiffs’ claimed

injuries stemmed from the arrest itself. Similarly, the

mechanism of injury and role Officer Weyker played

are the same as in Bivens: actions by law enforcement

officers, one of whom was Officer Weyker. The court

points to the absence of a “direct causal chain” and the

involvement of “multiple independent legal actors” in

this case, see supra at 7, but the situation is simpler

than the court makes it out to be. Officer Weyker is alleged to have lied to Officer Beeks about the basis for

probable cause to arrest plaintiffs, and Officer Beeks

arrested plaintiffs based on that false information. It

is unclear to me why we should take pains to separate

out Officer Weyker’s role in plaintiffs’ arrest, particularly when in other contexts we readily recognize the

collective role different officers play in effectuating arrests. See, e.g., Thompson, 533 F.3d at 969-70 (describing the collective knowledge doctrine). Finally, the

showing required to prove plaintiffs’ claim here would

be the same as that required in Bivens. In any challenge to a warrantless arrest, the person claiming a violation of her Fourth Amendment rights must show

21a

Appendix A

that the facts known to the officers involved did not

provide a reasonable probability of criminal activity.

See, e.g., District of Columbia v. Wesby, 138 S. Ct. 577,

586 (2018) (explaining probable cause standard). Regardless of why a plaintiff might allege that probable

cause was lacking, the court assessing her claim must

examine what the officers knew at the time of the arrest—an inquiry that may, in any case, involve “factchecking” of how those officers came to their conclusions.6 Cf. Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811,

817 (8th Cir. 2010) (when one officer instructs another

to make an arrest, “[w]e consider the pertinent question to be whether [the instructing officer] had probable cause at the time of the arrest: that is, whether the

facts and circumstances would have led to a reasonable

conclusion that a crime had been committed”). This is

the showing that the plaintiff in Bivens would have

had to make and that Ahmed and Mohamud would be

making here.

We are also guided by Abbasi, which provides examples of “differences that are meaningful enough to

make a given context a new one.” Abbasi, 137 S. Ct. at

Williams v. City of Alexander, 772 F.3d 1307 (8th Cir.

2014), which addresses an allegedly false warrant affidavit, may

support the conclusion that plaintiffs’ false affidavit claim is different than that in Bivens. See id. at 1311 (“[W]hen a police officer

deliberately or recklessly makes false statements to demonstrate

probable cause for an arrest warrant, the warrant may be invalidated under Franks v. Delaware.”). But in my view, Franks plays

no role in a claim that officers effectuated a warrantless arrest

without probable cause.

22a

Appendix A

1859-60. These include “the rank of the officers involved; the constitutional right at issue; the generality

or specificity of the official action; the extent of judicial

guidance as to how an officer should respond to the

problem or emergency to be confronted; the statutory

or other legal mandate under which the officer was

operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the

presence or potential special factors that previous

Bivens cases did not consider.” Id. at 1860. No meaningful differences are present here. Like the agents in

Bivens, Officer Weyker was an investigative officer

who is alleged to have violated plaintiffs’ Fourth

Amendment right to be free of unlawful arrest. Cf. Hernandez v. Mesa, 140 S. Ct. 735, 743-44 (2020) (establishing that “[a] claim may arise in a new context even

if it is based on the same constitutional provision” as a

previous claim, but describing Bivens as covering “an

allegedly unconstitutional arrest and search” by local

police officers). The judicial guidance on conducting a

lawful arrest remains clear, and the mandate comes

from the Constitution. Recognizing plaintiffs’ claim

risks no more intrusion into the functioning of another branch of government than did Bivens, which

also turned on the knowledge and actions of police officers. And here, plaintiffs challenge an “individual instance[ ] . . . of law enforcement overreach, which due

to [its] very nature [is] difficult to address except by

way of damages actions after the fact.” Abbasi, 137

S. Ct. at 1862. While these factors are not exhaustive, see id. at 1859-60, each supports the conclusion

23a

Appendix A

that the context for plaintiffs’ false arrest claim is not

new.

The Supreme Court in Abbasi did “not intend[ ] to

cast doubt on the continued force, or even the necessity,

of Bivens in the search-and-seizure context in which it

arose.” Id. at 1856; see also id. at 1856-57 (“Bivens does

vindicate the Constitution by allowing some redress

for injuries, and it provides instruction and guidance

to federal law enforcement officers going forward.”).

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 Hernandez. In my view,

a Bivens remedy is available to Ahmed and Mohamud

on this claim.7 Because the court denies them this remedy, I respectfully dissent.

The court maintains that Ahmed and Mohamud may still

seek recourse for their claimed harm under § 1983. However, I

note that the district court has already determined in a related

case that, on the date in question, Officer Weyker was acting as a

federally deputized officer, not under color of state law, making a

§ 1983 claim unavailable. See Yassin v. Weyker, No. 16-cv-2580

(JNE/TNL), 2020 WL 6438892 at *4-5 (D. Minn. Sept. 30, 2020),

appeal filed, No. 20-3299 (8th Cir. Nov. 2, 2020). The court’s decision here will thus have the likely effect of denying plaintiffs any

legal remedy for the constitutional violation they allege. See Abbasi, 137 S. Ct. at 1863 (“There is a persisting concern, of course,

that absent a Bivens remedy there will be insufficient deterrence

to prevent officers from violating the Constitution.”).

24a

Appendix B

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Hamdi A. Mohamud,

Plaintiff,

Heather Weyker, in her

individual capacity as a

St. Paul Police Officer,

Case No. 17-cv-2069

(JNE/TNL) ORDER

Defendant.

Hawo O. Ahmed,

Plaintiff,

Heather Weyker, in her

individual capacity as a

St. Paul Police Officer,

Case No. 17-cv-2070

(JNE/TNL) ORDER

Defendant.

Filed: September 18, 2018

Asserting that they were seized in violation of the

Fourth Amendment, Hamdi A. Mohamud and Hawo O.

Ahmed brought actions against Heather Weyker under

42 U.S.C. § 1983 (2012) and Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971). Mohamud and Ahmed alleged that Weyker,

a St. Paul police officer, provided false information, fabricated evidence, and withheld exculpatory evidence

about them. They were arrested and subsequently

charged with witness tampering and obstructing sex

25a

Appendix B

trafficking enforcement. Ahmed was acquitted after a

jury trial. The charges against Mohamud were dismissed.

Weyker moved to dismiss Mohamud’s and Ahmed’s actions, arguing that she is entitled to qualified

immunity because Mohamud and Ahmed failed to

plausibly allege Weyker violated any clearly established constitutional right. Weyker also asserted that

no cause of action exists under either Bivens or § 1983

to sue her in her individual capacity. For the reasons

set forth below, the Court denies Weyker’s motions.

BACKGROUND

Mohamud’s and Ahmed’s amended complaints are

essentially identical. The following summarizes them.

On June 16, 2011, Mohamud, Ahmed, and another

individual were involved in an altercation with Muna

Abdulkadir.1 The incident took place at Abdulkadir’s

apartment building in Minneapolis, Minnesota. Ahmed and Abdulkadir agreed to fight to settle their

“beef.” After agreeing to fight, Abdulkadir indicated

she wanted to go upstairs and change her clothes. The

four entered an elevator, where a scuffle briefly took

Ifrah Yassin is the third individual who was involved in the

altercation with Abdulkadir. Yassin brought an action against

Weyker and others that is similar to the actions brought by Mohamud and Ahmed. The Court granted in part and denied in part

Weyker’s motion to dismiss Yassin’s claims. Yassin v. Weyker, Case

No. 16-cv-2580 (JNE/TNL), 2017 WL 3425689 (D. Minn. Aug. 9,

2017), appeal docketed, No. 17-3208 (8th Cir. Oct. 13, 2017).

26a

Appendix B

place. Abdulkadir exited the elevator, and the other

three descended in the elevator.

Abdulkadir retrieved a knife from her apartment,

proceeded downstairs, and exited the building. Abdulkadir approached Ahmed’s vehicle and smashed its

windshield with the knife. A short time later, Ahmed,

Mohamud, and the other individual exited the building. Abdulkadir struck the other individual with the

knife. Ahmed, Mohamud, and the other individual

called 911 to report Abdulkadir for assault and property damage.

When Abdulkadir realized the police had been

summoned, she returned to her apartment building

and called Weyker. Abdulkadir told Weyker that she

had been in a fight; that she had attacked Mohamud,

Ahmed, and the other individual with a knife; that the

police had been summoned; that she was hiding in a

neighbor’s apartment; and that she feared she was going to be arrested.

A Minneapolis police officer, Anthijuan Beeks, responded to the 911 call made by Ahmed, Mohamud,

and the other individual. When he arrived on the

scene, Beeks regarded them as victims of a crime committed by Abdulkadir. He had no reason to suspect that

Ahmed, Mohamud, and the other individual had

sought to harm, threaten, or intimidate Abdulkadir because of her role as a witness in a federal prosecution.

Approximately 20 minutes after he arrived on the

scene, Beeks received a message that he should contact Weyker before he continued his investigation. He

27a

Appendix B

called her, and she told him that Abdulkadir is a federal witness in a prostitution investigation in which 30

people had been indicted; that Weyker had information

and documentation that Ahmed, Mohamud, and the

other individual had been actively seeking out Abdulkadir and attempting to intimidate and harm Abdulkadir; and that one of Ahmed’s friends was dating a

man who had been indicted in the prostitution investigation. Weyker knowingly gave false information to

Beeks. She had no information or documentation that

Ahmed, Mohamud, and the other individual were actively looking for Abdulkadir and attempting to intimidate or harm Abdulkadir. Weyker had no information

that one of Ahmed’s friends was dating a man who had

been indicted in the prostitution investigation.

After he spoke with Weyker, Beeks interviewed

Abdulkadir about the altercation. Abdulkadir told

Beeks that the altercation started with a casual conversation. Abdulkadir did not say anything about having a dispute with Ahmed, Mohamud, and the other

individual; about Ahmed, Mohamud, and the other individual making any threats; about the prostitution investigation or her role in it; about Ahmed, Mohamud,

and the other individual having a knife; about why she

agreed to fight Ahmed; or about being injured by a

knife. Beeks determined that Abdulkadir had not attempted to call 911 and that she instead obtained a

knife, proceeded downstairs, and smashed the windshield of Ahmed’s car. Abdulkadir admitted to Beeks

that she struck the other individual with the knife.

28a

Appendix B

In addition to speaking with Beeks, Weyker spoke

with a Minneapolis police sergeant, Gary Manty, on

June 16, 2011. Weyker gave Manty false information:

that a friend of Ahmed and Mohamud had stated to

Abdulkadir that her friends were incarcerated because

of Abdulkadir; that the incarcerated individuals were

Somali Outlaws; that a friend of Ahmed and Mohamud

was acquainted with a man who had been indicted in

the prostitution investigation; that Ahmed, Mohamud,

and the other individual went to Abdulkadir’s apartment building to intimidate Abdulkadir about being a

federal witness against individuals who were arrested

and charged in the prostitution investigation; and that

Abdulkadir feared for her life and feared retaliation

because of her involvement in the prostitution investigation.

Weyker provided the false information to Beeks

and Manty to shield Abdulkadir from arrest. Weyker

sought to assist Abdulkadir to avoid criminal charges

so as to provide Abdulkadir an incentive to continue to

work with Weyker by fabricating evidence and providing false testimony in the prostitution investigation.

Beeks arrested Ahmed, Mohamud, and the other

individual on suspicion of tampering with a federal

witness. While transporting them to jail, Beeks told

them they were arrested because of the assertions

Weyker had made about them.

On June 17, 2011, Weyker executed a federal criminal complaint and a supporting affidavit against Ahmed, Mohamud, and the other individual for tampering

29a

Appendix B

with a federal witness and obstructing the prostitution

investigation. Weyker included false information in the

criminal complaint. For instance, Weyker stated the altercation was related to the prostitution investigation,

but she knew there were no facts to support the assertion. Weyker stated the friend of Ahmed and Mohamud

confronted Abdulkadir because Abdulkadir was the

reason her friends were incarcerated, but Weyker

knew there was no factual basis to support the statement. Weyker claimed that Abdulkadir had been attacked with a knife and injured, but Weyker knew

there was no evidence that Abdulkadir was attacked

with a knife or injured. Weyker stated that Ahmed, Mohamud, or the other individual chased Abdulkadir outside with a knife, but Weyker knew Ahmed, Mohamud,

and the other individual did not have a knife and did

not chase Abdulkadir. Weyker asserted that Ahmed,

Mohamud, or the other individual attacked Abdulkadir’s mother, but Weyker knew nobody had attacked

Abdulkadir’s mother. Weyker stated that Ahmed, Mohamud, and the other individual had threatened Abdulkadir about putting people in jail, but Weyker knew

no such threats were made.

Weyker did not provide exculpatory evidence in

the criminal complaint and supporting affidavit. For

example, Weyker did not state that Ahmed, Mohamud,

and the other individual called 911 to report being

assaulted by Abdulkadir. Weyker did not stated that

Abdulkadir contacted Weyker while hiding from the

Minneapolis police out of fear of being arrested for assaulting Mohamud, Ahmed, and the other individual.

30a

Appendix B

Weyker did not state that that there was no record of

Mohamud, Ahmed, and the other individual being involved with the individuals who were indicted in the

prostitution investigation. Weyker did not state that

there was no record of Mohamud, Ahmed, and the other

individual communicating with Abdulkadir about the

prostitution investigation. Weyker did not state that

the on-scene investigator’s interview with Abdulkadir

revealed no statement about Mohamud, Ahmed, and

the other individual threatening Abdulkadir; no

statement about Mohamud, Ahmed, and the other individual attacking Abdulkadir with a knife; and no

statement about Mohamud, Ahmed, and the other individual mentioning Abdulkadir’s role as a witness in

the prostitution investigation.

On June 17, 2011, warrants to arrest Mohamud

and Ahmed were issued, and they were placed in federal custody. They were indicted on June 29, 2011, for

violating federal laws. From June 17, 2011, to July 30,

2013, Ahmed remained in federal custody. She was acquitted of all charges after a jury trial. From June 17,

2011, to July 10, 2013, when all charges against her

were dismissed, Mohamud remained in federal custody. She was subject to supervised release for a short

time.

II.

DISCUSSION

“To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

31a

Appendix B

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A

plaintiff satisfies this requirement by “plead[ing] factual content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. “[T]he tenet that a court must

accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare

recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Id.

“When there are well-pleaded factual allegations, a

court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to

relief.” Id. at 679. “The plausibility standard is not akin

to a ‘probability requirement,’ but it asks for more than

a sheer possibility that a defendant has acted unlawfully.” Id. at 678.

In considering a motion to dismiss for failure to

state a claim, “a district court generally may not consider materials outside the pleadings.” Noble Sys. Corp.

v. Alorica Cent., LLC, 543 F.3d 978, 982 (8th Cir. 2008).

A district court may “consider some public records, materials that do not contradict the complaint, or materials

that are ‘necessarily embraced by the pleadings.’” Id.

“[D]efendants seeking dismissal under Rule 12(b)(6)

based on an assertion of qualified immunity ‘must

show that they are entitled to qualified immunity on

the face of the complaint.’” Kulkay v. Roy, 847 F.3d 637,

642 (8th Cir. 2017) (alteration in original) (quoting

Carter v. Huterson, 831 F.3d 1104, 1107 (8th Cir. 2016));

accord Stanley v. Finnegan, 899 F.3d 623, 627 (8th Cir.

32a

Appendix B

2018); Kiesling v. Holladay, 859 F.3d 529, 533 (8th Cir.

2017). “The doctrine of qualified immunity generally

shields public and government officials performing discretionary functions from civil liability ‘insofar as their

conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have known.’” Kulkay, 847 F.3d at 642 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To

determine whether a defendant is entitled to dismissal on the basis of qualified immunity, we consider

‘(1) whether the official’s conduct violated a constitutional right; and (2) whether the violated right was

clearly established.’” Stanley, 899 F.3d at 627 (quoting

Manning v. Cotton, 862 F.3d 663, 668 (8th Cir. 2017)).

The parties presented matters outside the pleadings in connection with Weyker’s motions to dismiss.

The Court excludes them. See Fed. R. Civ. P. 12(d);

Covey v. Assessor of Ohio Cty., 777 F.3d 186, 193 & n.7

(4th Cir. 2015) (“Although some of the parties’ filings

(such as the criminal complaint) could have been used

for limited purposes . . . any disputed testimony contained therein should have been ignored in favor of the

complaint’s allegations. Perhaps more simply, the court

could have wholly ignored such attachments and relied

exclusively on the complaint.” (citation omitted)); Stahl

v. U.S. Dep’t of Agric., 327 F.3d 697, 701 (8th Cir. 2003)

(quotation omitted) (stating a court has complete discretion to determine whether to accept any material

beyond the pleadings offered in connection with a Rule

12(b)(6) motion); cf. Glob. Network Commc’ns, Inc. v.

City of New York, 458 F.3d 150, 157 (2d Cir. 2006)

33a

Appendix B

(“[A]lthough the final determination of March 2005

and Massie’s testimony may be public records of which

a court may take judicial notice, ‘it may do so on a motion to dismiss only to establish the existence of the

opinion, not for the truth of the facts asserted in the

opinion.’”).

“A warrantless arrest is consistent with the

Fourth Amendment if it is supported by probable

cause, and an officer is entitled to qualified immunity

if there is at least ‘arguable probable cause.’” Ulrich v.

Pope Cty., 715 F.3d 1054, 1059 (8th Cir. 2013) (quoting

Borgman v. Kedley, 646 F.3d 518, 522-23 (8th Cir.

2011)). “Probable cause exists if the totality of facts

based on reasonably trustworthy information would

justify a prudent person in believing the individual arrested had committed an offense.” Small v. McCrystal,

708 F.3d 997, 1003 (8th Cir. 2013) (quoting Copeland v.

Locke, 613 F.3d 875, 879 (8th Cir. 2010)). “Arguable

probable cause exists even where an officer mistakenly

arrests a suspect believing it is based in probable cause

if the mistake is ‘objectively reasonable.’” Ulrich, 715

F.3d at 1059 (quoting Borgman, 646 F.3d at 523). “The

probable cause standard inherently allows room for

reasonable mistakes by a reasonable person, but the

qualified immunity standard affords law enforcement

officials an even wider berth for mistaken judgments

‘by protecting all but the plainly incompetent or those

who knowingly violate the law.’” Id. (quoting Hunter v.

Bryant, 502 U.S. 224, 229 (1991)).

“A warrant based upon an affidavit containing ‘deliberate falsehood’ or ‘reckless disregard for the truth’

34a

Appendix B

violates the Fourth Amendment.” Small, 708 F.3d at

1006 (quoting Bagby v. Brondhaver, 98 F.3d 1096, 1098

(8th Cir. 1996)). “[W]hen a police officer deliberately or

recklessly makes false statements to demonstrate

probable cause for an arrest warrant, the warrant may

be invalidated” under Franks v. Delaware, 438 U.S. 154

(1978). Williams v. City of Alexander, 772 F.3d 1307,

1311 (8th Cir. 2014). “To establish a Franks violation,

the plaintiff must prove ‘1) that a false statement

knowingly and intentionally, or with reckless disregard to the truth, was included in the affidavit, and

2) that the affidavit’s remaining content is insufficient

to provide probable cause.’” Id. (quoting United States

v. Box, 193 F.3d 1032, 1034-35 (8th Cir. 1999)). “Under

Franks, [a plaintiff ] can challenge the affidavit based

on the omission of facts by proving ‘1) that facts were

omitted with the intent to make, or in reckless disregard of whether they thereby make, the affidavit misleading, and 2) that the affidavit, if supplemented by

the omitted information, could not support a finding of

probable cause.’” Id. at 1312 (quoting Box, 193 F.3d at

1035).

“It is clearly established that a warrantless arrest,

unsupported by probable cause, violates the Fourth

Amendment.” Dowell v. Lincoln Cty., 762 F.3d 770, 777

(8th Cir. 2014) (quoting Small, 708 F.3d at 1003). It is

also clearly established that “a seizure without ‘a

truthful factual showing sufficient to constitute probable cause’ violates the Fourth Amendment.” Livers v.

Schenck, 700 F.3d 340, 357 (8th Cir. 2012) (quoting

Hedges v. Poletis, 177 F.3d 1071, 1074 (8th Cir. 1999)).

35a

Appendix B

Weyker asserted that she is entitled to qualified

immunity because “probable cause existed for Officer

Beeks to arrest Plaintiffs independent of any information provided by Officer Weyker”; “Plaintiffs’ initial

arrest complied with the Fourth Amendment because

probable cause existed for other crimes”; “the federal

criminal complaint filed by Officer Weyker was supported by probable cause”; “Plaintiffs’ assertions of innocence and reliance on the judicial opinions in the

sex trafficking cases lend no plausibility to a Fourth

Amendment violation”; and “Plaintiffs’ claims are barred

because Plaintiffs did not mount a successful probable

cause challenge during their criminal proceedings.”

Weyker’s arguments relied heavily on matters outside

the pleadings. According to the Ahmed’s and Mohamud’s amended complaints, Beeks regarded Ahmed

and Mohamud as victims of a crime committed by Abdulkadir when he arrived on the scene on June 16, and

nothing in his subsequent investigation, except the allegedly false information conveyed to him by Weyker,

led him to believe that Ahmed or Mohamud had engaged in any criminal activity. Ahmed and Mohamud

alleged that Weyker knowingly recounted a false narrative to support the criminal complaint against them.

Given the allegations of Ahmed and Mohamud, their

failures to successfully contest probable cause during

their criminal cases do not vitiate their claims against

Weyker. See Manuel v. City of Joliet, 137 S. Ct. 911,

919-20 (2017). The Court concludes that Ahmed and

Mohamud plausibly alleged Weyker violated rights under the Fourth Amendment and that their allegedly violated rights were clearly established. See Odom v.

36a

Appendix B

Kaizer, 864 F.3d 920, 922-23 (8th Cir. 2017); Dowell,

762 F.3d at 777; Livers, 700 F.3d at 357. At this stage

of the litigation, Weyker is not entitled to qualified immunity.

In similar cases, the Court discerned no need to

“decide whether the proper vehicle for [the plaintiff ’s]

claims is a § 1983 or Bivens cause of action.” Osman

v. Weyker, Case No. 16-cv-908 (JNE/TNL), 2017 WL

3425647, at *6-7 (D. Minn. Aug. 9, 2017), appeal docketed, No. 17-3209 (8th Cir. Oct. 13, 2017); see Yassin,

2017 WL 3425689, at *3 n.5. The Court does the same

here.

III.

CONCLUSION

Based on the files, records, and proceedings

herein, and for the reasons stated above, IT IS ORDERED THAT:

Weyker’s motions to dismiss [Docket No.

15 in Case No. 17-cv-2069; Docket No. 16

in Case No. 17-cv-2070] are DENIED.

Dated: September 18, 2018

s/ Joan N. Ericksen

JOAN N. ERICKSEN

United States District Judge

37a

Appendix C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 18-3461

Hawo O. Ahmed

Appellee

Heather Weyker, in her individual

capacity as a St. Paul Police Officer

Appellant

No: 18-3471

Hamdi A. Mohamud

Appellee

Heather Weyker, in her individual

capacity as a St. Paul Police Officer

Appellant

Appeals from U.S. District Court

for the District of Minnesota

(0:17-cv-02070-JNE)

(0:17-cv-02069-JNE)

38a

Appendix C

ORDER

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

March 16, 2021

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

39a

Appendix D

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Ifrah Yassin,

Plaintiff,

Heather Weyker, individually

and in her fficial capacity as a

St. Paul Police Officer; John

Does 1–2, individually and in

their official capacities as St.

Paul Police Officers; John

Does 3–4, individually and in

their official capacities as

supervisory members of the

St. Paul Police Department;

and The City of St. Paul,

Case No. 16-cv-2580

(JNE/TNL)

ORDER

Defendants.

Zane A. Umsted and Joshua A. Newville, Madia Law

LLC, appeared for Ifrah Yassin.

Glenn Greene and David G. Cutler, United States Department of Justice, appeared for Heather Weyker.

Filed: September 30, 2020

Ifrah Yassin asserted claims against the City of St.

Paul and members of the St. Paul Police Department

under 42 U.S.C. § 1983 and Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), for violations of the Fourth, Fifth, Sixth,

40a

Appendix D

and Fourteenth Amendments. In August 2017, the

Court dismissed Yassin’s claims against the City of St.

Paul and John Does 3–4; dismissed Yassin’s claims

against Heather Weyker for violations of the Fifth,

Sixth, and Fourteenth Amendments; and denied Weyker’s motion to dismiss Yassin’s claims under § 1983

and Bivens for violations of the Fourth Amendment.1

Order 13, Aug. 9, 2017, ECF No. 47. Weyker appealed.

The United States Court of Appeals for the Eighth Circuit “affirm[ed] the denial of Weyker’s motion to dismiss Yassin’s unlawful-arrest claim and remand[ed]

her case for further proceedings consistent with [its]

opinion.” Farah v. Weyker, 926 F.3d 492, 503–04 (8th

Cir. 2019).2 On remand, Weyker moved for summary

judgment. For the reasons set forth below, the Court

grants Weyker’s motion.

BACKGROUND

On June 16, 2011, Yassin, Hamdi Mohamud, and

Hawo Ahmed were involved in an altercation with

Muna Abdulkadir. The incident took place at Abdulkadir’s apartment building in Minneapolis, Minnesota.

The four entered an elevator, where the altercation

took place. Abdulkadir eventually exited the elevator,

and the other three descended in the elevator.

Yassin’s claims against John Does 1–2 were dismissed

without prejudice by stipulation.

“To the extent Yassin is . . . suing for damages arising out

of her post-arrest indictment, the claim must proceed, if at all,

under section 1983.” Farah, 926 F.3d at 503 n.2.

41a

Appendix D

Abdulkadir retrieved a knife from her apartment, proceeded downstairs with her mother and her

brother, and exited the building. Abdulkadir approached Ahmed’s vehicle and smashed its windshield

with the knife. A short time later, Yassin, Ahmed, and

Mohamud exited the building. Abdulkadir slapped

Yassin with the knife. Yassin called 911 and reported

that Abdulkadir had slapped her with a knife and

smashed the windshield.

After Yassin called 911, Abdulkadir and her family

members returned to their apartment. Fearing arrest,

Abdulkadir went to a neighbor’s apartment and called

Weyker, a St. Paul police officer and, from August 2010

to August 2014, a Special Deputy United States Marshal. Weyker’s duties as a Special Deputy United

States Marshal included investigative work on a federal task force whose efforts led to the indictments of

approximately 30 individuals in 2010 in the Middle

District of Tennessee. Abdulkadir was a witness in that

investigation.

A Minneapolis police officer, Anthijuan Beeks, responded to the 911 call made by Yassin. Beeks interviewed Yassin, Ahmed, and Mohamud while other

officers attempted to locate Abdulkadir. Yassin and

Ahmed told Beeks that they had been in an altercation

with Abdulkadir and that Abdulkadir was the aggressor. Yassin told Beeks about Abdulkadir’s use of the

knife and damage to Ahmed’s car. Mohamud told Beeks

she had witnessed the events but did not participate in

them.

42a

Appendix D

Approximately 15 or 20 minutes after he arrived

on the scene, Beeks received a message to call Weyker.

Beeks called Weyker, who introduced herself as a St.

Paul police officer. Weyker also introduced the other

law enforcement officers who were on the call. Weyker

told Beeks that Abdulkadir was a witness in a federal

prostitution investigation; that the investigation resulted in the indictment of 30 Somali males; and that

Weyker had information and documentation that Yassin, Ahmed, and Mohamud were looking for Abdulkadir to intimidate her or cause bodily harm to her.

Beeks decided to speak to Yassin, Ahmed, and Mohamud separately. He placed Yassin in the back of a

squad car. Yassin told Beeks that she struck Abdulkadir after Abdulkadir hit Ahmed, who was pregnant, in

the stomach. Yassin denied knowing about the federal

prostitution investigation, acknowledged rumors of 30

men being locked up, and asserted that Abdulkadir

was a prostitute.

Beeks continued his investigation. He viewed

several videos taken by cameras in the apartment

building. One shows Abdulkadir, Yassin, Ahmed, and

Mohamud entering the elevator. Another shows Abdulkadir running from the elevator as Yassin and Ahmed

chase and strike Abdulkadir.

After he viewed the videos, Beeks located Abdulkadir and interviewed her. Abdulkadir told Beeks that

Yassin, Ahmed, and Mohamud attacked Abdulkadir in

the elevator, that one of the three stopped the elevator

by pressing a “stop” button, that Abdulkadir was able

43a

Appendix D

to make the elevator move again, and that Abdulkadir

was able to escape the three when the elevator doors

opened. Abdulkadir also told Beeks that she took a

knife from her apartment, that she smashed the windshield, and that she struck Yassin with the knife.

Additional law enforcement officers were present

at the scene. They included agents from the Federal

Bureau of Investigation and a sergeant from the Minneapolis Police Department, Gary Manty. Beeks spoke

with one of the agents after the agent interviewed Yassin and Ahmed. Beeks also conferred with Manty, who

had spoken with Weyker. She told Manty that Yassin,

Ahmed, and Mohamud were attempting to intimidate

Abdulkadir because Abdulkadir was a witness in a

federal sex-trafficking case. Yassin, Ahmed, and Mohamud were arrested.

On June 17, 2011, the United States filed a criminal complaint against Yassin in the Middle District of

Tennessee. The United States charged Yassin with retaliation against a witness. Weyker signed the criminal

complaint, submitted an affidavit in support of it, and

identified herself as an FBI Task Force Officer and St.

Paul Police Officer. On June 29, 2011, Yassin was indicted in the Middle District of Tennessee for retaliation against a witness and obstruction. In July 2013, a

jury found her not guilty of all charges.

Three years after her acquittal, Yassin brought

this action. She alleged that Weyker “did not have ‘information and documentation’ that Yassin, Ahmed, and

Mohamud had been actively seeking out Abdulkadir to

44a

Appendix D

intimidate her and cause bodily harm to her because

of her role in the federal investigation”; that Weyker

“had no ‘information or documentation’ of any kind regarding Yassin, Ahmed, and Mohamud – the first time

that she even heard of any of them was on June 16,

2011 – the day of the incident”; and that “[t]he reason

that Officer Weyker provided false information to Officer Beeks is that Abdulkadir was a lynchpin of Weyker’s manufactured human-trafficking case against

approximately 30 Somali males.” (Compl. ¶¶ 21, 24)

II.

DISCUSSION

Summary judgment is proper “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). To support an assertion that a fact cannot be or is genuinely disputed,

a party must cite “to particular parts of materials in

the record,” show “that the materials cited do not establish the absence or presence of a genuine dispute,”

or show “that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1)(A)–(B). “The court need consider only the cited

materials, but it may consider other materials in the

record.” Fed. R. Civ. P. 56(c)(3). In determining whether

summary judgment is appropriate, a court must view

genuinely disputed facts in the light most favorable to

the nonmovant, Ricci v. DeStefano, 557 U.S. 557, 586

(2009), and draw all justifiable inferences from the evidence in the nonmovant’s favor, Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

45a

Appendix D

Weyker moved for summary judgment, asserting

that Yassin cannot sue Weyker under § 1983, that Yassin cannot sue Weyker under Bivens, and that Weyker

is entitled to qualified immunity. Yassin maintained

that Weyker is “subject to liability under § 1983”; that,

in the alternative, “Yassin’s claim may proceed under

Bivens”; and that Weyker is not entitled to qualified

immunity.

A. Section 1983

Weyker asserted that Yassin cannot sue Weyker

under § 1983 because Weyker did not act under color

of state law. According to Yassin, Weyker’s “emphasis

of her St. Paul credentials during the course of her misconduct . . . makes her a state actor.” In addition, Yassin maintained that Weyker is subject to liability

under § 1983 under theories of “dual employment” or

“joint activity.”

Section 1983 states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within

the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable

to the party injured in an action at law, suit

in equity, or other proper proceeding for redress . . . .

46a

Appendix D

42 U.S.C. § 1983. A plaintiff asserting a claim under

§ 1983 must show that she “has been deprived ‘of a

right secured by the “Constitution and laws” of the

United States’ and that the defendant acted ‘under

color of any statute . . . of any State.’” Lugar v. Edmondson Oil Co., 457 U.S. 922, 931 (1982) (alteration

in original) (quoting Adickes v. S. H. Kress & Co., 398

U.S. 144, 150 (1970)); see West v. Atkins, 487 U.S. 42, 48

(1988) (“To state a claim under § 1983, a plaintiff must

allege the violation of a right secured by the Constitution and laws of the United States, and must show that

the alleged deprivation was committed by a person acting under color of state law.”). “The traditional definition of acting under color of state law requires that the

defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of

state law.’” West, 487 U.S. at 49 (quoting United States

v. Classic, 313 U.S. 299, 326 (1941)). “Conduct causing

a deprivation of civil rights must be ‘fairly attributable’

to the state to be considered under color of state law.”

Smith v. Insley’s Inc., 499 F.3d 875, 880 (8th Cir. 2007)

(quoting Lugar, 457 U.S. at 937). “The defendant must

act or purport to act ‘in the performance of official duties, even if he oversteps his authority and misuses

power.’ Acts of officials in ‘the ambit of their personal

pursuits are plainly excluded’ from Section 1983 liability.” Magee v. Trs. of Hamline Univ., 747 F.3d 532, 535

(8th Cir. 2014) (citation omitted) (quoting Johnson v.

Phillips, 664 F.3d 232, 240 (8th Cir. 2011), and Dossett

v. First State Bank, 399 F.3d 940, 949 (8th Cir. 2005)).

“[W]hether a police officer is acting under color of state

47a

Appendix D

law turns on the nature and circumstances of the officer’s conduct and the relationship of that conduct to

the performance of his official duties.” Id. (alteration in

original) (quoting Roe v. Humke, 128 F.3d 1213, 1216

(8th Cir. 1997)). Section 1983 “is inapplicable to persons acting under color of federal law.” Haley v. Walker,

751 F.2d 284, 285 (8th Cir. 1984) (per curiam).

“The Fourth Amendment . . . requires that an officer have probable cause before making a warrantless

arrest. Probable cause exists when a police officer has

reasonably trustworthy information that is sufficient

to lead a person of reasonable caution to believe that

the suspect has committed or is committing a crime.”

Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257

(8th Cir. 2010) (citation omitted). “[P]retrial detention

can violate the Fourth Amendment not only when it

precedes, but also when it follows, the start of legal process in a criminal case. The Fourth Amendment prohibits government officials from detaining a person in

the absence of probable cause. That can happen when

the police hold someone without any reason before the

formal onset of a criminal proceeding. But it also can

occur when legal process itself goes wrong—when, for

example, a judge’s probable-cause determination is

predicated solely on a police officer’s false statements.”

Manuel v. City of Joliet, 137 S. Ct. 911, 918 (2017) (citation omitted); see Stewart v. Wagner, 836 F.3d 978,

983 (8th Cir. 2016). If the legal proceeding used to establish probable cause is tainted such that probable

cause is lacking, “then the ensuing pretrial detention

violates the confined person’s Fourth Amendment

48a

Appendix D

rights.” Manuel, 137 S. Ct. at 920 n.8 (rejecting view

that a grand jury indictment “does expunge such a

Fourth Amendment claim”); see King v. Harwood, 852

F.3d 568, 587–88 (6th Cir. 2017).

Weyker asserted that Yassin cannot sue Weyker

under § 1983 because Weyker did not act under color

of state law. Weyker stated that she “was deputized as

a Special Deputy U.S. Marshal, sponsored by the FBI,

from August 24, 2010, through August 31, 2014”; that

her “duties as a Special Deputy included investigative

work on a task force supporting the FBI’s investigation

of approximately 30 subjects associated with Somali

gangs”; and that the investigation led to a federal sextrafficking prosecution “that Yassin was later accused

of obstructing.” Because she “was federally deputized

when Yassin was arrested for tampering with the

federal prosecution that Weyker was supporting as a

federal officer,” Weyker asserted that “§ 1983 is not

available to challenge [Yassin’s] arrest.”

Yassin responded that she may sue Weyker under

§ 1983 because Weyker presented herself as a St. Paul

police officer when she spoke to Beeks on June 16,

2011; Weyker drafted her police report as a St. Paul

police officer; and Weyker worked with Abdulkadir “for

nearly a year before she was deputized.” In addition,

Yassin asserted that Weyker is liable under § 1983

based on Weyker’s “dual employment”:

While Weyker emphasizes her federal credentials, there can be no dispute that she was also

employed by the St. Paul Police Department

49a

Appendix D

during the relevant period of time. As such,

her decision to wield state-level authority

against Ms. Yassin supports a § 1983 [claim],

regardless of the extent of her federal employment.

Finally, Yassin maintained that Weyker “engaged in a

joint activity supporting § 1983 liability” by “roping in

state actors (Office[r] Beeks and Sergeant Manty) as

unknowing dupes in her efforts to violate Ms. Yassin’s

constitutional rights.”

Weyker’s employment as a St. Paul police officer,

her identification as a St. Paul police officer on her call

with Beeks, her documentation of Yassin’s arrest,3 and

Weyker’s relationship with Abdulkadir before Weyker’s deputation do not demonstrate that Weyker was

acting under color of state law. Cf. Magee, 747 F.3d at

536 (“While his editorial noted he was an officer, this

recites his occupation and does not necessarily indicate

he was acting in his official capacity.”). Weyker was a

federally deputized member of a federal task force

whose efforts yielded indictments against approximately 30 individuals in 2010 in the Middle District of

Tennessee. Abdulkadir was a witness in that investigation. After she received a call from Abdulkadir, Weyker called Beeks. Federal law enforcement officers

were also on the call. Weyker told Beeks that Abdulkadir was a witness in a federal prostitution investigation; that the investigation resulted in the indictment

In her St. Paul Police Department supplemental offense/

incident report, Weyker identified herself as an FBI Task Force

Officer.

50a

Appendix D

of 30 Somali males; and that Weyker had information

and documentation that Yassin, Ahmed, and Mohamud

were looking for Abdulkadir to intimidate her or cause

bodily harm to her. As a federally deputized member of

the task force, Weyker was not acting under color of

state law when she allegedly violated Yassin’s Fourth

Amendment rights. See King v. United States, 917 F.3d

409, 433 (6th Cir. 2019) (“Although Detective Allen was

a detective with the Grand Rapids Police and was

therefore employed by the state, Detective Allen was

working full time with an FBI task force at the time of

the incident at issue. . . . As a deputized federal agent,

Detective Allen carried federal authority and acted under color of that authority rather than under any state

authority he may have had as a Grand Rapids Police

detective.”), cert. granted sub nom. Brownback v. King,

140 S. Ct. 2563 (2020), and cert. denied, 140 S. Ct. 2565

(2020); Guerrero v. Scarazzini, 274 F. App’x 11, 12 n.1

(2d Cir. 2008) (“Guerrero framed his false arrest claims

against Scarazzini and McAllister as arising under 42

U.S.C. § 1983; however, because Scarazzini and McAllister were federally deputized for their Task Force

work, this claim was properly brought (as the parties

agree) as a Bivens action.”); DeMayo v. Nugent, 517

F.3d 11, 14 n.5 (1st Cir. 2008) (“DeMayo originally

brought his claims without knowledge that Nugent

and Lugas were part of a DEA task force, rendering

42 U.S.C. § 1983 the appropriate avenue for relief,

although his complaint does not explicitly indicate

whether the action lay under § 1983 or Bivens. The

parties and the district court, however, all treated the

51a

Appendix D

suit as lying under Bivens after the officers’ roles were

revealed.”).

As to Yassin’s assertion of joint activity, she has

not directed the Court to any evidence that supports

her assertion. Instead, she characterized Beeks and

Manty as “unknowing dupes” in Weyker’s alleged “efforts to violate Ms. Yassin’s constitutional rights.” Yassin has not supported her assertion of “joint activity.”

See Arar v. Ashcroft, 585 F.3d 559, 568 (2d Cir. 2009)

(“A federal officer who conspires with a state officer

may act under color of state law; but since ‘federal officials typically act under color of federal law,’ they are

rarely deemed to have acted under color of state law.”

(citation omitted)); Premachandra v. Mitts, 753 F.2d

635, 641 n.7 (8th Cir. 1985) (en banc) (“Conspiracies

that make federal officials liable under section 1983

are not commonplace but nor are they unheard of.”); cf.

Magee, 747 F.3d at 536 (“To be liable under § 1983, a

private actor must be a ‘a willful participant in joint

activity with the State’ in denying a plaintiff ’s constitutional rights.” (quoting Dossett, 399 F.3d at 947)).

Yassin’s claim against Weyker for violation of Yassin’s

Fourth Amendment rights may not proceed under

§ 1983.

B. Bivens

Weyker asserted that Yassin cannot sue Weyker

under Bivens. Weyker asserted that Yassin’s “evidencefabrication claim presents a new Bivens context for

which numerous special factors counsel hesitation.”

52a

Appendix D

Yassin responded that this Court previously concluded

that her Fourth Amendment claim does not present a

new context for a Bivens action, that the Eighth Circuit

did not disturb this Court’s resolution of the issue, and

that “this Court’s prior resolution of the issue remains

the law of the case.”

The Court previously declined to reach the question of whether Yassin’s Fourth Amendment claim

should be brought under § 1983 or Bivens:

Because the Court finds that only the Fourth

Amendment, and not substantive due process,

is applicable; because a Fourth Amendment

claim in this case does not present a new context for a Bivens action; and because § 1983

and Bivens claims are analyzed similarly, the

Court does not reach the question of whether

Yassin’s claim should be brought under § 1983

or Bivens.

Order 7 n.5, Aug. 9, 2017, ECF No. 47. The Eighth Circuit did not decide that Yassin’s claim is viable under

Bivens. Instead, the court of appeals assumed it was

and considered the issue of qualified immunity:

Yassin’s case is different. Her primary theory

is that she was unlawfully arrested because

Weyker falsely told another police officer that

she was trying to intimidate a federal witness.

We need not decide whether this theory of liability would require us to extend Bivens, because Weyker has not meaningfully briefed

the point on appeal.

53a

Appendix D

Even if we assume that Yassin’s unlawfularrest claim is viable under Bivens, however,

Weyker still claims that she is entitled to

qualified immunity for every action she took

during the investigation. So we must address

the two familiar qualified-immunity questions: assuming Yassin’s allegations are true,

did Weyker violate her constitutional rights?

And if so, were those rights clearly established? On both points, our review is de novo,

and our answer is yes.

Farah, 926 F.3d at 503 (citations omitted) (footnote

omitted).

This Court’s statement in the August 9 Order that

“a Fourth Amendment claim in this case does not present a new context for a Bivens action” is not the law

of the case:

We have described the law of the case doctrine

as providing that “when a court decides upon

a rule of law, that decision should continue to

govern the same issues in subsequent stages

in the same case.” The underlying intent of

the doctrine is to “prevent[] the relitigation of

settled issues in a case, thus protecting the

settled expectations of parties, ensuring uniformity of decisions, and promoting judicial

efficiency.” The doctrine applies to appellate

decisions, as well as to final decisions by the

district court that have not been appealed. It

does not apply to interlocutory orders, however, “for they can always be reconsidered and

54a

Appendix D

modified by a district court prior to entry of a

final judgment.”

First Union Nat’l Bank v. Pictet Overseas Tr. Corp., 477

F.3d 616, 620 (8th Cir. 2007) (alteration in original) (citations omitted); see Gander Mountain Co. v. Cabela’s,

Inc., 540 F.3d 827, 830 (8th Cir. 2008) (“The doctrine

applies to decisions made by appellate courts and final

decisions made by district courts that have not been

appealed.”). The Court turns to whether Yassin’s claim

may proceed under Bivens.

“Determining whether an implied cause of action

is available under Bivens involves two steps.” Farah,

926 F.3d at 498. They are:

First, we must determine whether the cases

before us present one of “the three Bivens

claims the Court has approved in the past” or

whether, instead, allowing the plaintiffs to sue

would require us to extend Bivens to a “new

context.” If there is a previously recognized

Bivens claim alleged, then the cases may proceed. If not, then we advance to the second

step and ask whether any “special factors

counsel[ ] hesitation” before implying a new

cause of action “in the absence of affirmative

action by Congress.” Only if we are confident

that “the Judiciary is well suited . . . to consider and weigh the costs and benefits of allowing a damages action” will we take it upon

ourselves to do so. Otherwise, we will leave

the balancing to Congress.

Id. (alterations in original) (citations omitted) (quoting

Ziglar v. Abbasi, 137 S. Ct. 1843, 1857–60 (2017)); see

55a

Appendix D

Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020). “The

proper test for determining whether a case presents a

new Bivens context is”:

If the case is different in a meaningful way

from previous Bivens cases decided by this

Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make

a given context a new one, some examples

might prove instructive. A case might differ in

a meaningful way because of the rank of the

officers involved; the constitutional right at issue; the generality or specificity of the official

action; the extent of judicial guidance as to

how an officer should respond to the problem

or emergency to be confronted; the statutory

or other legal mandate under which the officer

was operating; the risk of disruptive intrusion

by the Judiciary into the functioning of other

branches; or the presence of potential special

factors that previous Bivens cases did not consider.

Ziglar, 137 S. Ct. at 1859–60.

Weyker asserted that “[t]he core holding of the

Eighth Circuit’s consolidated opinion in this matter is

broad and unequivocal” and that the “holding applies

with equal force to Yassin’s ‘primary theory’ of Bivens

liability—that Yassin ‘was unlawfully arrested because Weyker falsely told another police officer that

she was trying to intimidate a federal witness.’” The

Court agrees.

56a

Appendix D

“No Supreme Court case exactly mirrors the facts

and legal issues presented here. The one that comes

closest is Bivens itself. Bivens involved a claim against

federal agents for an illegal arrest and warrantless

search.” Farah, 926 F.3d at 498 (citations omitted).

“Weyker’s alleged misdeeds [in this case] are different

from those in Bivens, even if the ‘constitutional right

at issue’ is the same. The agents in Bivens handcuffed

and strip-searched the plaintiff and combed through

his apartment, all without a warrant. Weyker did none

of these things, nor anything similar.” Id. at 498–99 (citations omitted). Yassin alleged that “she was unlawfully arrested because Weyker falsely told another

police officer that [Yassin] was trying to intimidate a

federal witness.” Id. at 503.

In addition, “the mechanism of injury is different.

In Bivens, the plaintiff ’s injuries—‘humiliation, embarrassment, and mental suffering’—were directly

caused by the officers’ conduct.” Id. at 499. Here, Weyker was not the arresting officer; she was not present

at the scene. She passed on information to officers at

the scene who investigated Yassin and others. The investigation included interviews of several individuals

and review of video taken by cameras in the apartment

building. Based on that investigation, Yassin was arrested.

Finally, “recognizing an implied cause of action

here would pose a greater risk of interference with the

other branches of government than it did in Bivens.”

Id. “The initial step would be to discover what Weyker

said, to whom she said it, and when. The information

57a

Appendix D

Weyker provided to investigators . . . would then need

to undergo examination for its truth or falsity. For any

false information she provided, the question would be

whether the evidence was material. The determination

would center on whether other evidence available to

investigators . . . would have independently led them

to . . . detain” Yassin. Id.

“By any measure, [Yassin’s claim is] meaningfully

different from the Fourth Amendment claim at issue

in Bivens. [She] does not allege [Weyker] entered [her]

home without a warrant or violated [her] rights of privacy.” Cantú v. Moody, 933 F.3d 414, 423 (5th Cir. 2019),

cert. denied, 207 L. Ed. 2d 1052 (2020); see Farah, 926

F.3d at 500.

Weyker asserted that the Court “should not extend or assume the existence of a Bivens remedy for

Yassin’s claim for the same panoply of special factors

that gave the Eighth Circuit ‘pause’ with respect to the

related claims against Officer Weyker.” The Court

agrees. To prevail, Yassin needs “to show that Weyker’s

allegedly false information was what established probable cause” for Yassin’s arrest. Farah, 926 F.3d at 500.

That “after-the-fact inquir[y] . . . pose[s] a risk of intrusion on executive-branch authority to enforce the law

and prosecute crimes.” Id. at 501. “Another ‘special factor counselling hesitation’ is what Congress has already done to address injuries of the sort” Yassin has

allegedly suffered. Id. at 501. “[T]he existence of a statutory scheme for torts committed by federal officers”

is yet another. Cantú, 933 F.3d at 423. The Court

58a

Appendix D

concludes that Yassin’s Fourth Amendment claim is

not viable under Bivens.4

III.

CONCLUSION

Based on the files, records, and proceedings

herein, and for the reasons stated above, IT IS ORDERED THAT:

Weyker’s Motion for Summary Judgment

[Docket No. 74] is GRANTED.

Yassin’s Complaint is DISMISSED WITH

PREJUDICE as to Heather Weyker, John

Does 3–4, and the City of St. Paul.

LET JUDGMENT BE ENTERED ACCORDINGLY.

s/ Joan N. Ericksen

JOAN N. ERICKSEN

United States District Judge

Having concluded that Yassin’s Fourth Amendment claims

against Weyker may not proceed under § 1983 or Bivens, the

Court need not consider the arguments regarding qualified immunity. See Neb. Beef, Ltd. v. Greening, 398 F.3d 1080, 1085 (8th

Cir. 2005) (“Because we resolve the instant case on the lack of a

Bivens remedy, we do not reach the issue of qualified immunity.”).

59a

Appendix E

United States Court of Appeals

for the Eighth Circuit

-----------------------------------------------------------------------

No. 17-3207

-----------------------------------------------------------------------

Yasin Ahmed Farah

Plaintiff - Appellee

Heather Weyker, individually and in her

official capacity as a St. Paul Police Officer

Defendant - Appellant

The City of St. Paul; John Does 1–5, in their

individual capacities as St. Paul Police Officers;

Richard Roes 1–5, in their individual capacities

as federal law enforcement officers

Defendants

------------------------The Human Trafficking Institute

Amicus on Behalf of Appellant

60a

Appendix E

-----------------------------------------------------------------------

No. 17-3208

-----------------------------------------------------------------------

Ifrah Yassin

Plaintiff - Appellee

Heather Weyker, individually and in her

official capacity as a St. Paul Police Officer

Defendant - Appellant

The City of St. Paul; John Does 1–2,

individually and in their official capacities

as St. Paul Police Officers; John Does 3–4,

individually and in their official capacities

as supervisory members of the

St. Paul Police Department

Defendants

------------------------The Human Trafficking Institute

Amicus on Behalf of Appellant

61a

Appendix E

-----------------------------------------------------------------------

No. 17-3209

-----------------------------------------------------------------------

Hamdi Ali Osman

Plaintiff - Appellee

Heather Weyker, in her individual

capacity as a St. Paul Police Officer

Defendant - Appellant

The City of St. Paul; John Bandemer, in his

individual and official capacities as a St. Paul

Police Sergeant; Robert Roes 4–6, in their

individual and official capacities as supervisory

members of the St. Paul Police Department

Defendants

------------------------The Human Trafficking Institute

Amicus on Behalf of Appellant

62a

Appendix E

-----------------------------------------------------------------------

No. 17-3210

-----------------------------------------------------------------------

Ahmad Abnulnasir Ahmad

Plaintiff - Appellee

Heather Weyker, in her individual

capacity as a St. Paul Police Officer

Defendant - Appellant

The City of St. Paul; John Bandemer, in his

individual and official capacities as a St. Paul

Police Sergeant; John Does 1–2, in their

individual capacities as St. Paul Police Officers;

John Does 3–4, in their individual and official

capacities as supervisory members of the

St. Paul Police Department

Defendants

------------------------The Human Trafficking Institute

Amicus on Behalf of Appellant

63a

Appendix E

-----------------------------------------------------------------------

No. 17-3212

-----------------------------------------------------------------------

Bashir Yasin Mohamud

Plaintiff - Appellee

Heather Weyker, in her individual

capacity as a St. Paul Police Officer

Defendant - Appellant

The City of St. Paul; John Bandemer, in his

individual and official capacities as a St. Paul

Police Sergeant; John Does 1–2, in their

individual capacities as St. Paul Police Officers;

John Does 3–4, in their individual and official

capacities as supervisory members of the

St. Paul Police Department

Defendants

------------------------The Human Trafficking Institute

Amicus on Behalf of Appellant

64a

Appendix E

-----------------------------------------------------------------------

No. 17-3213

-----------------------------------------------------------------------

Mohamed Amalle

Plaintiff - Appellee

Heather Weyker, in her individual

capacity as a St. Paul Police Officer

Defendant - Appellant

The City of St. Paul; John Bandemer, in his

individual and official capacities as a St. Paul

Police Sergeant; John Does 1–2, in their

individual capacities as St. Paul Police Officers;

John Does 3–4, in their individual and official

capacities as supervisory members of the

St. Paul Police Department

Defendants

------------------------The Human Trafficking Institute

Amicus on Behalf of Appellant

-----------------------------------------------------------------------

Appeals from United States District Court

for the District of Minnesota - Minneapolis

-----------------------------------------------------------------------

Submitted: November 14, 2018

Filed: June 12, 2019

-----------------------------------------------------------------------

65a

Appendix E

Before COLLOTON, SHEPHERD, and STRAS, Circuit

Judges.

-----------------------------------------------------------------------

STRAS, Circuit Judge.

If a federal law-enforcement officer lies, manipulates witnesses, and falsifies evidence, should the

officer be liable for damages? We hold that the Constitution does not imply a cause of action under Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), so the answer must come

from Congress, not from us. And Congress has, so far,

answered no.

In 2008, police officers in St. Paul, Minnesota, were

investigating a suspected sex-trafficking operation

involving minors. After one alleged victim was reported missing in Minneapolis and then turned up in

Nashville, federal investigators in Tennessee became

involved too. The government eventually charged thirty

people with a variety of crimes allegedly arising out of

an extensive conspiracy that spanned ten years and

four states.

The cases against nine of the defendants, including Ahmad Ahmad and Mohamed Amalle, proceeded to

trial in the Middle District of Tennessee. The jury acquitted some, while the district court acquitted the others after the jury found them guilty. See United States

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v. Adan, 913 F. Supp. 2d 555, 579 (M.D. Tenn. 2012). In

affirming, the Sixth Circuit expressed “acute concern,

based on [a] painstaking review of the record, that this

story of sex trafficking and prostitution may be fictitious.” United States v. Fahra, 643 F. App’x 480, 484

(6th Cir. 2016) (unpublished). Prosecutors dropped the

charges against the remaining defendants, including

Yasin Farah, Hamdi Osman, and Bashir Mohamud.

Ahmad, Amalle, Farah, Osman, and Mohamud

each sued Officer Heather Weyker, who had led the investigation for the St. Paul Police Department. They

accused Weyker of exaggerating and inventing facts in

reports, hiding evidence that would have exonerated

them, and pressuring and manipulating the alleged

victims into lying. She deceived prosecutors, the grand

jury, and other investigators, according to the complaints filed in each case, about the ages of the alleged

victims, whether the victims were coerced into sex, and

the relationships among the supposed conspirators. By

doing so, the plaintiffs claimed, Weyker caused them to

be charged and detained for periods ranging from four

months to over three years, all in violation of the

Fourth Amendment’s prohibition on unreasonable seizures. See Manuel v. City of Joliet, 137 S. Ct. 911, 919–

20 (2017).

A sixth plaintiff, Ifrah Yassin, was not part of the

alleged federal conspiracy. Rather, according to Yassin’s complaint, she was arrested for witness intimidation based on false information from Weyker. The

arrest arose out of a fight between a cooperating

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Appendix E

witness in the sex-trafficking investigation and one of

Yassin’s friends. After the fight started, Yassin called

911 and the witness called Weyker. Weyker then told

the officer responding to the 911 call that, based on “information and documentation,” Yassin and her friends

were trying to intimidate the witness and prevent her

from cooperating in a federal investigation. Relying on

Weyker’s tip, the officer arrested Yassin, who was later

charged with witness tampering and obstruction of

justice. A jury acquitted her of both charges.

The crux of Yassin’s case against Weyker is that no

“information and documentation” ever existed. Rather,

Weyker caused Yassin’s unlawful arrest and detention

by lying about the reason for the altercation.

All six, including Yassin, sought damages. Recognizing that Weyker had been deputized as a U.S. Marshal toward the conclusion of the joint investigation,

they pleaded causes of action under both 42 U.S.C.

§ 1983, which authorizes constitutional claims against

state officials; and Bivens, which operates similarly

against federal officials, notwithstanding the absence

of a statutory cause of action, see 403 U.S. at 397. Weyker moved to dismiss, arguing that neither theory was

viable. She reasoned that section 1983 did not apply to

her because she was a deputized federal official. As for

Bivens, she claimed that nothing she was accused of

doing was actionable. And even assuming the plaintiffs

could sue her, she added, she was entitled to qualified

immunity because the facts they alleged did not show

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Appendix E

that she had violated their clearly established constitutional rights.

The district court disagreed. It concluded that

even if Weyker was right that Bivens was the plaintiffs’

only remedy, the claims against her could still proceed.

Weyker immediately appealed, see Wilkie v. Robbins,

551 U.S. 537, 549 n.4 (2007) (holding that the courts of

appeals have jurisdiction to hear interlocutory appeals

challenging “the recognition of the entire [Bivens] cause

of action” in qualified-immunity cases), and we consolidated all six appeals in light of the overlapping facts

and legal issues involved.

II.

We begin with the five plaintiffs charged in the

original conspiracy prosecution. The threshold question is whether their cases are the type for which a

Bivens remedy is available. See, e.g., Bush v. Lucas, 462

U.S. 367, 390 (1983) (holding that a federal employee

demoted for exercising his First Amendment rights did

not have a Bivens claim). We address this “purely legal

question” de novo. Neb. Beef, Ltd. v. Greening, 398 F.3d

1080, 1083 (8th Cir. 2005).

On only three occasions has the Supreme Court

implied a cause of action under Bivens. See Carlson v.

Green, 446 U.S. 14, 16–18 (1980); Davis v. Passman, 442

U.S. 228, 248 (1979); Bivens, 403 U.S. at 397. Since

then, the Court has become “far more cautious” and

has, in fact, “‘consistently refused to extend Bivens to

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Appendix E

any new context or new category of defendants’” for almost forty years. Ziglar v. Abbasi, 137 S. Ct. 1843, 1855,

1857 (2017) (quoting Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 68 (2001)). Recognizing that the Bivens inquiry

is about “who should decide” whether to create a new

cause of action, the Court has answered “most often . . .

Congress.” Id. at 1857 (emphasis added) (citation omitted).

Determining whether an implied cause of action is

available under Bivens involves two steps. First, we

must determine whether the cases before us present

one of “the three Bivens claims the Court has approved in the past” or whether, instead, allowing the

plaintiffs to sue would require us to extend Bivens to

a “new context.” Id. at 1859–60. If there is a previously

recognized Bivens claim alleged, then the cases may

proceed. If not, then we advance to the second step and

ask whether any “special factors counsel[ ] hesitation”

before implying a new cause of action “in the absence

of affirmative action by Congress.” Id. at 1857 (citation

omitted). Only if we are confident that “the Judiciary

is well suited . . . to consider and weigh the costs and

benefits of allowing a damages action” will we take it

upon ourselves to do so. Id. at 1858. Otherwise, we will

leave the balancing to Congress.

No Supreme Court case exactly mirrors the facts

and legal issues presented here. See id. at 1859–60

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Appendix E

(explaining that the comparison is to Supreme Court

cases). The one that comes closest is Bivens itself. See

Bivens, 403 U.S. at 389–90; cf. Carlson, 446 U.S. at 16

n.1, 18–23 (allowing a claim against federal prison officials who failed to treat a prisoner’s asthma); Davis,

442 U.S. at 230, 236–48 (permitting a congressman’s

administrative assistant to sue after he fired her).

Bivens involved a claim against federal agents for an

illegal arrest and warrantless search. See 403 U.S. at

389. Here, the allegations are that a federally deputized officer duped prosecutors and a grand jury into

believing that the plaintiffs were part of a multi-state

sex-trafficking conspiracy.

To determine whether the differences “are meaningful enough to make [this] context a new one,” the

Supreme Court has instructed us to consider several

factors, including:

the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial

guidance as to how an officer should respond

to the problem or emergency to be confronted;

the statutory or other legal mandate under

which the officer was operating; the risk of

disruptive intrusion by the Judiciary into the

functioning of other branches; [and] the presence of potential special factors that previous

Bivens cases did not consider.

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Appendix E

Abbasi, 137 S. Ct. at 1859–60 (emphasizing that this

list is illustrative, not “exhaustive”). The cases before

us are meaningfully different from Bivens in three ways.

First, Weyker’s alleged misdeeds are different from

those in Bivens, even if the “constitutional right at issue” is the same. Id. at 1860. The agents in Bivens

handcuffed and strip-searched the plaintiff and combed

through his apartment, all without a warrant. See 403

U.S. at 389. Weyker did none of these things, nor anything similar. She spoke to witnesses, drafted reports,

and shared information with prosecutors and other investigators. These information-gathering and casebuilding activities are a different part of police work

than the apprehension, detention, and physical searches

at issue in Bivens.

Second, the mechanism of injury is different. In

Bivens, the plaintiff ’s injuries—“humiliation, embarrassment, and mental suffering”—were directly

caused by the officers’ conduct. Id. at 389–90. Here,

by contrast, Weyker’s actions injured the plaintiffs

through a series of intervening steps. And those intervening steps involved decisions by independent legal

actors—the prosecutors who chose to pursue charges

against the plaintiffs, the grand jury that voted to

indict them, and the judges and magistrates who

approved their continued detention. This indirect

mechanism of injury bears little resemblance to the

straightforward claims from Bivens.

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Appendix E

Third, recognizing an implied cause of action here

would pose a greater risk of interference with the other

branches of government than it did in Bivens. See Abbasi, 137 S. Ct. at 1860. Probing the causal chain in

cases like these would involve delving into the evidence before numerous decisionmakers, including federal investigators, prosecutors, and the grand jury. The

initial step would be to discover what Weyker said, to

whom she said it, and when. The information Weyker

provided to investigators, prosecutors, and the grand

jury would then need to undergo examination for its

truth or falsity. For any false information she provided,

the question would be whether the evidence was material. The determination would center on whether other

evidence available to investigators and prosecutors

would have independently led them to charge or detain

the plaintiffs. Cf. Williams v. City of Alexander, 772

F.3d 1307, 1311 (8th Cir. 2014) (citing Franks v. Delaware, 438 U.S. 154 (1978)). Only then, after probing executive charging decisions and peeking behind the

curtain of customarily secret grand-jury proceedings,

would the plaintiffs be able to prove their cases. Nothing so intrusive was required to prove the claims in

Bivens.

To be sure, similarities exist. Bivens involved alleged violations of the Fourth Amendment’s prohibition on “unreasonable searches and seizures,” and so

do these cases. 403 U.S. at 389 (quoting U.S. Const.

amend. IV); see also Abbasi, 137 S. Ct. at 1856

(stressing “the continued force . . . of Bivens in the

73a

Appendix E

search-and-seizure context in which it arose”). But

treating all search-and-seizure cases the same would

contradict the Supreme Court’s direction that a context can be new even if it involves the same constitutional right as an existing case. See Abbasi, 137 S. Ct.

at 1859.

Nor is the context the same just because Weyker

and the agents in Bivens were “street-level” investigators whose alleged misconduct only impacted a single

investigation, rather than senior officers engaged in

policymaking activities. It is true, as Osman and Farah

point out, that the Supreme Court emphasized “the

rank of the officers involved” and “the generality or

specificity of the official action” in its most recent refusal to extend Bivens. See id. at 1860–61 (addressing

claims against Justice Department officials and prison

wardens based on post-9/11 detention policies and conditions). Even so, the Court left no doubt that these

were just two features among many that could meaningfully differentiate potential causes of action. See id.

at 1859–60.

The three differences we have identified—the sorts

of actions being challenged, the mechanism of injury,

and the kinds of proof those injuries would require—

are “meaningful enough” that we cannot simply assume that the same reasons that justified permitting

the plaintiff to recover damages in Bivens apply

equally here. Id. at 1859. Allowing the plaintiffs to pursue damages claims in this context would mean extending Bivens, no matter how “modest” the extension

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Appendix E

may be, id. at 1864, so we must decide whether this is

one of the unusual situations in which we are “well

suited . . . to consider and weigh the costs and benefits

of allowing a damages action to proceed,” id. at 1858.

According to the Supreme Court, we must now determine at the second step whether anything about

these cases “causes [us] to pause before acting without

express congressional authorization.” Id. It does not

take much to make us pause, because “[i]n most instances, . . . [Congress] is in the better position to consider if the public interest would be served by imposing

a new substantive legal liability.” Id. at 1857 (internal

quotation marks and citation omitted). Indeed, recognizing the Court’s “caution” in this regard, we have

adopted a “presumption against judicial recognition of

direct actions for violations of the Constitution by federal officials.” Neb. Beef, 398 F.3d at 1084 (citation

omitted).

Among the “special factors” that have been decisive in the past, Abbasi, 137 S. Ct. at 1857–58, the most

relevant here are whether a Bivens action “would require courts to interfere in an intrusive way with sensitive functions of the Executive Branch,” id. at 1861;

whether Congress has taken other action in the area

without authorizing a damages remedy, see id. at 1862;

and whether a “remedial structure” is already in place

to address constitutional violations, even if it does not

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Appendix E

go as far as a Bivens remedy would, id. at 1858, 1862–

63. See also id. at 1858, 1861 (identifying additional

“special factors”). When factors like these are present,

the Supreme Court has explained, it is “less probable

that Congress would want the Judiciary to entertain a

damages suit.” Id. at 1858.

The first special factor present here is a variation

on one the Supreme Court has already identified: the

risk of burdening and interfering with the executive

branch’s investigative and prosecutorial functions. Cf.

id. at 1861; see also id. at 1858 (recognizing that other

special factors will appear in future cases, but that

they are “difficult to predict in advance”). As we explain above, for these plaintiffs to prevail, they would

need to show that Weyker’s allegedly false information

was what established probable cause for their arrests

and detention. Cf. Williams, 772 F.3d at 1311 (explaining that to succeed on a false-arrest claim against an

officer who has lied in a warrant application, a plaintiff must prove that “[o]nce the purportedly false statements are removed, the affidavit’s remaining content

does not support a finding of probable cause”).

This type of showing would invite a wide-ranging

inquiry into the evidence available to investigators,

prosecutors, and the grand jury. It would not just be

limited to the theories actually pursued by the prosecutors, because the question is not whether their

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Appendix E

theories had support. Rather, it would focus on

whether there was probable cause to charge the plaintiffs with a crime that would have justified their detention pending trial. See Devenpeck v. Alford, 543 U.S.

146, 153 (2004) (“The Fourth Amendment’s concern

with ‘reasonableness’ allows certain actions to be

taken in certain circumstances, whatever the subjective intent [of the officials involved].” (brackets omitted) (quoting Whren v. United States, 517 U.S. 806, 814

(1996))); Keil v. Triveline, 661 F.3d 981, 986 (8th Cir.

2011). Reconstructing the record before the grand

jury, contemplating a panoply of federal crimes, and

determining whether it would have been reasonable to

think that the plaintiffs committed any of them would

be among the likely steps in the analysis.

Take Farah’s case, for example. He assures us that

there would be no need to look at “the great bulk” of

the grand-jury evidence, because Weyker was his only

point of contact with investigators, so any possible support for the charges must have come from her. But to

verify this assertion, the factfinder still has to know

what was in the grand-jury record. Only if there really

is nothing implicating Farah—or at least nothing that

could have supported probable cause—in the police reports, witness statements, transcripts, and other materials will the factfinder be able to determine that

Weyker’s alleged misdeeds caused his injuries.

To be sure, sometimes courts must undertake this

sort of review. Indeed, if the plaintiffs’ section 1983

claims turn out to be viable, see infra Part II.C, the

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Appendix E

district court may have to do so in these cases. But such

after-the-fact inquiries still pose a risk of intrusion on

executive-branch authority to enforce the law and

prosecute crimes, not to mention encroach on the usual

secrecy of charging decisions and grand-jury proceedings. That some section 1983 cases pose similar risks

just reflects that Congress has balanced the costs and

benefits and decided that the potential encroachment

is worth it. The fact that recognizing the plaintiffs’

claims in these cases would require us to make this determination on our own, without any congressional

guidance, is reason enough “to pause before acting.”

Abbasi, 137 S. Ct. at 1858.

Another “special factor counselling hesitation” is

what Congress has already done to address injuries of

the sort the plaintiffs have allegedly suffered. Id. The

so-called Hyde Amendment allows courts to award attorney fees to criminal defendants who prevail against

“vexatious, frivolous, or . . . bad[-]faith” positions taken

by the government. Act of Nov. 26, 1997, Pub. L. No.

105-119, § 617, 111 Stat. 2440, 2519 (codified at 18

U.S.C. § 3006A note). And those who are wrongly convicted and sentenced may seek release under 28 U.S.C.

§ 2255 or sue the government for damages, see 28

U.S.C. § 1495 (creating a cause of action for damages

“by any person unjustly convicted of an offense against

the United States and imprisoned”); see also id. § 2513(e)

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Appendix E

(capping the damages available for wrongful imprisonment).

Understandably, the plaintiffs are not satisfied

with these options, which are unavailable to them.

They cannot recover attorney fees, for example, because they were represented by appointed counsel. See

§ 617, 111 Stat. at 2519 (excepting “case[s] in which the

defendant [was] represented by assigned counsel paid

for by the public”). Nor can they seek release or damages because they were never convicted. See 28 U.S.C.

§ 2255(a) (limiting relief to “prisoner[s] in custody under sentence of a [federal] court”); id. § 1495 (requiring “convict[ion]” and “imprison[ment]”). But far from

supporting their position, the plaintiffs’ ineligibility for

these remedies actually cuts against recognizing a new

cause of action.

The reason is that it would upset the existing “remedial structure.” Abbasi, 137 S. Ct. at 1858. These

plaintiffs are ineligible for relief under the unjustconviction statute precisely because they were acquitted or had their charges dropped before trial. But had

they been convicted and imprisoned, they would be eligible to seek damages under the unjust-conviction

statute. The fact that Congress has expressly provided

a damages remedy for some victims of this particular

type of injury, but not for others, suggests that it considered the issue and made a deliberate choice. This is

a “convincing reason” not to imply a second, distinct

“freestanding remedy in damages.” Id. (citation omitted).

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Appendix E

The plaintiffs complain that these alternatives

would not have offered them “roughly similar compensation” or provided “roughly similar incentives” to deter officers from violating the law. Minneci v. Pollard,

565 U.S. 118, 130 (2012). They forget, however, that

Bivens remedies are the exception, and if they were

available every time “roughly similar” remedies are

not, then Bivens would become the rule, available in all

but the most unusual constitutional cases. To be sure,

the availability of “roughly similar” remedies was discussed in one Supreme Court decision, see id., but since

then, no case has mentioned it, much less relied on it.

See Abbasi, 137 S. Ct. at 1858, 1862–63 (saying nothing

about similarity or comparability, despite addressing

alternative remedies in depth). To the contrary, the

Court has since made clear that even remedies that

provide no compensation for victims and little deterrence for violators, such as injunctions and writs of habeas corpus, trigger the general rule that, “when

alternative methods of relief are available, a Bivens

remedy usually is not.” Id. at 1863 (citing several cases,

including Minneci, 565 U.S. at 124–26).

The bottom line is that a balance must be struck

between the costs and benefits of allowing plaintiffs

who have been wrongfully charged and detained based

on allegedly fabricated evidence to sue for damages.

The costs of implying a cause of action include exposing federal officials to “the complex sphere of litigation,” id. at 1858, and intruding on prosecutorial

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Appendix E

functions. Among the benefits, however, are deterring

misconduct, protecting the integrity of the criminal adjudicatory process, and preventing innocent people

from being illegally detained. It is not our place to

weigh these competing policy concerns. Rather, having

identified “sound reasons to think Congress might

doubt the efficacy or necessity of a damages remedy,”

we “must refrain from creating [one]” ourselves. Id.

Declining to extend Bivens does not necessarily

end these five cases, however, because the plaintiffs

also brought section 1983 claims against Weyker. Before the district court, Weyker argued that she was not

acting under color of state law when she committed her

alleged misdeeds, because she had been deputized as a

federal officer by the time the plaintiffs were indicted.

See Magee v. Trs. of Hamline Univ., 747 F.3d 532, 535

(8th Cir. 2014). This argument, which the district court

did not address, potentially requires a fact-intensive

analysis of “the nature and circumstances” of Weyker’s alleged misconduct and its “relationship . . . to

the performance of [her] official [state] duties.” Id. (citation omitted); see also West v. Atkins, 487 U.S. 42, 49

(1988) (“The traditional definition of acting under color

of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state

law and made possible only because the wrongdoer is

clothed with the authority of state law.’” (quoting

United States v. Classic, 313 U.S. 299, 326 (1941))). For

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Appendix E

this reason, and because the parties have not fully

briefed this question on appeal, we remand for the district court to consider the applicability of section 1983

in the first instance.1

III.

Yassin’s case is different. Her primary theory is

that she was unlawfully arrested because Weyker

falsely told another police officer that she was trying

to intimidate a federal witness. We need not decide

whether this theory of liability would require us to extend Bivens, because Weyker has not meaningfully

briefed the point on appeal. See White v. Jackson, 865

F.3d 1064, 1075 (8th Cir. 2017).

Even if we assume that Yassin’s unlawful-arrest

claim is viable under Bivens,2 however, Weyker still

claims that she is entitled to qualified immunity for

every action she took during the investigation. So we

must address the two familiar qualified-immunity

questions: assuming Yassin’s allegations are true, did

Weyker violate her constitutional rights? And if so,

were those rights clearly established? See Hager v. Ark.

Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013).

We decline Weyker’s invitation to skip over the under-colorof-state-law element to decide her claim to qualified immunity.

To the extent Yassin is also suing for damages arising out

of her post-arrest indictment, the claim must proceed, if at all,

under section 1983. See supra Part II.C.

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Appendix E

On both points, our review is de novo, see id., and our

answer is yes.

First, Yassin alleged a constitutional violation. According to her complaint, the officer who arrested her

had no reason to suspect her of a crime until Weyker

lied to him. In fact, the complaint suggests that the

facts known to the officer led him to treat her as a victim, at least until he heard from Weyker. These allegations, if true, would establish an unlawful-arrest claim

under the Fourth Amendment. See Williams, 772 F.3d

at 1310; cf. Small v. McCrystal, 708 F.3d 997, 1006 (8th

Cir. 2013) (“Officers remain liable . . . for the reasonably foreseeable acts of actors they deceive.”).

Second, the right Weyker allegedly violated was

clearly established. It is true, as Weyker explains, that

sexual-abuse and sex-trafficking cases often put investigators in difficult positions, particularly when there

are minors involved. Cf. Myers v. Morris, 810 F.2d 1437,

1459 (8th Cir. 1987) (noting “[t]he uncertainty surrounding acceptable investigative techniques for suspected child sexual abuse”). But even so, a reasonable

officer would know that deliberately misleading another officer into arresting an innocent individual to

protect a sham investigation is unlawful, regardless of

the difficulties presented by the case. See, e.g., Williams, 772 F.3d at 1313; Small, 708 F.3d at 1006.

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Appendix E

IV.

We accordingly vacate the denial of Weyker’s motions to dismiss Ahmad’s, Amalle’s, Farah’s, Osman’s,

and Mohamud’s complaints. We instruct the district

court on remand to dismiss their Bivens claims and determine whether their cases may proceed under section 1983. We also affirm the denial of Weyker’s motion

to dismiss Yassin’s unlawful-arrest claim and remand

her case for further proceedings consistent with this

opinion.

84a

Appendix F

List of Cases Resulting from

Respondent’s Task-Force Investigation

Yassin v. Weyker, No. 16-CV-2580, 2020 WL 6438892 (D.

Minn. Sept. 30, 2020) (on remand from Farah v.

Weyker, 926 F.3d 492 (8th Cir. 2019)), appeal pending, No. 20-3299 (docketed Nov. 2, 2020).

Mohamud v. Weyker, No. 17-CV-2069, 2018 WL

4469251 (D. Minn. Sept. 18, 2018), vacated and remanded sub nom. Ahmed v. Weyker, 984 F.3d 564

(8th Cir. 2020), reh’g & reh’g en banc denied (Mar.

16, 2021).

Adan v. Weyker, No. 16-CV-1235, 2017 WL 3421388 (D.

Minn. Aug. 9, 2017).

Afyare v. Weyker, No. 16-CV-1758, 2017 WL 3421390 (D.

Minn. Aug. 9, 2017).

Ahmad v. Weyker, No. 16-CV-1902, 2017 WL 3425685

(D. Minn. Aug. 9, 2017), vacated and remanded sub

nom. Farah v. Weyker, 926 F.3d 492 (8th Cir. 2019).

Ali v. Weyker, No. 16-CV-1241, 2017 WL 3425667 (D.

Minn. Aug. 9, 2017).

Amalle v. Weyker, No. 16-CV-1898, 2017 WL 3425683

(D. Minn. Aug. 9, 2017), vacated and remanded sub

nom. Farah v. Weyker, 926 F.3d 492 (8th Cir. 2019).

Fahra v. Weyker, No. 16-CV-1146, 2017 WL 3421387 (D.

Minn. Aug. 9, 2017).

Faduma Farah v. Weyker, No. 16-CV-1175, 2017 WL

3425662 (D. Minn. Aug. 9, 2017).

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Appendix F

Yasin Farah v. Weyker, No. 16-CV-1289, 2017 WL

3425676 (D. Minn. Aug. 9, 2017), vacated and remanded, 926 F.3d 492 (8th Cir. 2019).

Hassan v. Weyker, No. 16-CV-1911, 2017 WL 3425687

(D. Minn. Aug. 9, 2017).

Hersi v. Weyker, No. 16-CV-3714, 2017 WL 3425694 (D.

Minn. Aug. 9, 2017).

Ibrahim v. Weyker, No. 16-CV-1865, 2017 WL 3425678

(D. Minn. Aug. 9, 2017).

Jama v. Weyker, No. 16-CV-1230, 2017 WL 3425665 (D.

Minn. Aug. 9, 2017).

Khalif v. Weyker, No. 16-CV-1237, 2017 WL 3425666 (D.

Minn. Aug. 9, 2017).

Mohamud v. Weyker, No. 16-CV-1894, 2017 WL

3425681 (D. Minn. Aug. 9, 2017), vacated and remanded sub nom. Farah v. Weyker, 926 F.3d 492

(8th Cir. 2019).

Abdifatah Omar v. Weyker, No. 16-CV-1243, 2017 WL

3425672 (D. Minn. Aug. 9, 2017).

Liban Omar v. Weyker, No. 16-CV-1113, 2017 WL

3425654 (D. Minn. Aug. 9, 2017).

Mohamed Omar v. Weyker, No. 16-CV-1166, 2017 WL

3425656 (D. Minn. Aug. 9, 2017).

Osman v. Weyker, No. 16-CV-908, 2017 WL 3425647 (D.

Minn. Aug. 9, 2017), vacated and remanded sub

nom. Farah v. Weyker, 926 F.3d 492 (8th Cir. 2019).

Salad v. Weyker, No. 16-CV-1242, 2017 WL 3425671 (D.

Minn. Aug. 9, 2017).

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Appendix F

Yusuf v. Weyker, No. 16-CV-1012, 2017 WL 3425649 (D.

Minn. Aug. 9, 2017).

United States v. Afyare, No. 3:10-CR-00260, 2013 WL

2643408 (M.D. Tenn. June 12, 2013), aff ’d in part,

rev’d in part, 632 Fed. Appx. 272 (6th Cir. 2016).

United States v. Adan, 913 F. Supp. 2d 555 (M.D. Tenn.

2012), aff ’d sub nom. United States v. Fahra, 643

Fed. Appx. 480 (6th Cir. 2016).

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