Petition for Writ of Certiorari — Ifrah Yassin, Petitioner v. Heather Weyker
Supreme Court briefDec 7, 2022
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No. _______
In The
Supreme Court of the United States
IFRAH YASSIN,
Petitioner,
v.
HEATHER WEYKER,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Eighth Circuit
PETITION FOR A WRIT OF CERTIORARI
PATRICK JAICOMO
Counsel of Record
ANYA BIDWELL
INSTITUTE FOR JUSTICE
901 N. Glebe Rd., Ste. 900
Arlington, VA 22203
(703) 682-9320
pjaicomo@ij.org
VICTORIA CLARK
INSTITUTE FOR JUSTICE
816 Congress Ave., Ste. 960
Austin, TX 78701
(512) 480-5936
Counsel for Petitioner
i
QUESTION PRESENTED
Whether state and local police officers are immune
from suit under 42 U.S.C. 1983 whenever they are
federally cross-deputized as members of joint statefederal task forces.
ii
RELATED PROCEEDINGS
U.S. District Court for the District of Minnesota:
Yassin v. Weyker,
No. 16-CV-2580 (Sept. 30, 2020)
Mohamud v. Weyker,
Nos. 17-CV-2069, 17-CV-2070 (Sept. 18, 2018)
Yassin v. Weyker,
No. 16-CV-2580 (Aug. 9, 2017)
U.S. Court of Appeals for the Eighth Circuit:
Yassin v. Weyker,
No. 20-3299 (July 14, 2022)
Ahmed v. Weyker,
Nos. 18-3461, 18-3471 (Dec. 23, 2020)
Farah v. Weyker,
Nos. 17-3207, 17-3208, 17-3209, 17-3210, 17-3212,
17-3213 (June 12, 2019)
iii
TABLE OF CONTENTS
Page
Petition for a Writ of Certiorari................................. 1
Opinions Below .......................................................... 4
Jurisdiction................................................................. 4
Statutory Provision Involved ..................................... 4
Statement ................................................................... 5
I. St. Paul police officer Heather Weyker
fabricated a crime ring through lies and
manipulation. .................................................. 5
II. Weyker used the color of her state
authority to have Minneapolis police
arrest Ifrah Yassin and her friends to
cover for a witness. .......................................... 7
III.When Yassin sued Weyker, the lower
courts
denied
Weyker
qualified
immunity. ........................................................ 9
IV. Despite Weyker’s dual authority under
color of both state and federal law, the
Eighth Circuit held that she could not be
sued for abusing either.................................. 11
Reasons for Granting the Petition........................... 13
I. The circuits are split over whether state
officers working on task forces can act
under color of state law. ................................ 15
iv
A. This Court has made clear that an
officer can act under color of both
state and federal law................................ 16
B. Four circuits apply a per se rule that
state-officer task force members act
exclusively under color of federal
law. ........................................................... 18
C. Two circuits consider the totality of
the circumstances to decide whether
state-officer task force members act
under color of state law, federal law,
or both....................................................... 23
II. This case provides a good vehicle for the
Court to resolve the circuit split because
the question is cleanly presented and
dispositive. ..................................................... 25
A. Weyker was acting under color of
state law. .................................................. 26
B. The Eighth Circuit has held that
Weyker cannot be sued for her
actions under color of federal law............ 28
III.The question presented is exceptionally
important because this Court has
rendered Bivens a dead letter, while the
number of state-officer task force
members continues to expand....................... 29
A. Egbert v. Boule all but prohibits
claims for constitutional abuses
committed under color of federal law
v
because Congress has not created a
statutory cause of action. ......................... 30
B. The Eighth Circuit rule allows state
officers to circumvent the statutory
cause of action Congress created in
Section 1983. ............................................ 31
Conclusion ................................................................ 34
vi
TABLE OF APPENDICES
Page
Appendix A:
Opinion of the United States Court of Appeals for the Eighth Circuit, Filed July 14,
2022 ..................................................................... 1a
Appendix B:
Opinion of the United States Court of Appeals for the Eighth Circuit, Filed December 23, 2020 ....................................................... 13a
Appendix C:
Opinion of the United States District Court
for the District of Minnesota, Filed September 30, 2020 ....................................................... 36a
Appendix D:
Opinion of the United States Court of Appeals for the Eighth Circuit, Filed June 12,
2019 ................................................................... 57a
Appendix E:
Opinion of the United States District Court
for the District of Minnesota, Filed September 18, 2018 ....................................................... 80a
Appendix F:
Opinion of the United States District Court
for the District of Minnesota, Filed August
9, 2017 ............................................................... 93a
Appendix G:
List of Cases Resulting from Respondent’s
Task Force Investigation ................................ 111a
Appendix H:
Excerpts from Eighth Circuit Appendix ........ 114a
vii
TABLE OF AUTHORITIES
CASES
Page
Adams v. Springmeyer,
No. 11-CV-790, 2012 WL 1865736 (W.D. Pa.
May 22, 2012) ....................................................... 24
Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970) .............................................. 16
Ahmed v. Weyker,
984 F.3d 566 (8th Cir. 2020 .......................... passim
Aikman v. County of Westchester,
691 F. Supp. 2d 496 (S.D.N.Y. 2010) ................... 19
Askar v. Hennepin County,
No. 21-CV-1829, 2022 WL 1241921 (D.
Minn. Apr. 27, 2022)....................................... 19–20
Askew v. Bloemker,
548 F.2d 673 (7th Cir. 1976) .......................... 23, 25
Bates v. City of Atlanta,
No. 1:20-CV-4074, 2021 WL 5034837 (N.D.
Ga. Aug. 26, 2021) ................................................ 24
Big Cats of Serenity Springs, Inc. v. Rhodes,
843 F.3d 853 (10th Cir. 2016) .............................. 17
Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics,
403 U.S. 388 (1971) ....................................... passim
Bordeaux v. Lynch,
958 F. Supp. 77 (N.D.N.Y. 1997).......................... 19
viii
Boudette v. Sanders,
No. 18-CV-02420, 2019 WL 3935168 (D. Col.
Aug. 19, 2019) ....................................................... 20
Brownback v. King,
140 S. Ct. 2563 (2020) .......................................... 20
Brownback v. King,
141 S. Ct. 740 (2021) ............................................ 13
Burton v. Wilmington Parking Auth.,
365 U.S. 715 (1961) .............................................. 16
Cabrera v. Martin,
973 F.2d 735 (9th Cir. 1992) ................................ 17
Couden v. Duffy,
446 F.3d 483 (3d Cir. 2006) ............................ 23–24
Deavers v. Martin,
No. 2:21-CV-00423, 2022 WL 4348474 (S.D.
W. Va. Sept. 19, 2022) .......................................... 19
DeMayo v. Nugent,
517 F.3d 11 (1st Cir. 2008) ..................19, 21–22, 31
Economan v. Cockrell,
No. 1:20-CV-32, 2020 WL 6874134 (N.D.
Ind. Nov. 23, 2020) ............................................... 24
Edmonson v. Leesville Concrete Co.,
500 U.S. 614 (1991) .................................. 16–17, 27
Egbert v. Boule,
142 S. Ct. 1793 (2022) ................................... passim
Estate of Rahim v. Doe,
51 F.4th 402 (1st Cir. 2022) ........................... 19, 22
Estate of Rahim v. United States,
506 F. Supp. 3d 104 (D. Mass. 2020) ................... 19
ix
Farah v. Weyker,
926 F.3d 492 (8th Cir. 2019) ...................... 6, 10, 11
Guerrero v. Scarazzini,
274 Fed. Appx. 11 (2d Cir. 2008) ........19–20, 22, 31
Hampton v. Hanrahan,
600 F.2d 600 (7th Cir. 1979) ................................ 17
Hari v. Smith,
No. 20-CV-1455, 2022 WL 1122940 (D.
Minn. Jan. 31, 2022)............................................. 20
Hernandez v. Mesa,
137 S. Ct. 2003 (2017) .......................................... 21
Hindes v. FDIC,
137 F.3d 148 (3d Cir. 1998) .................................. 17
Jackson v. Vartanian,
No. 20-CV-1148, 2021 WL 4523072 (E.D.
Wis. Oct. 4, 2021).................................................. 24
Johnson v. Orr,
780 F.2d 386 (3d Cir. 1986) ............................ 24, 27
King v. Brownback,
140 S. Ct. 2565 (2020) .................................... 13, 20
King v. United States,
917 F.3d 409 (6th Cir. 2019) ......................... passim
Kletschka v. Driver,
411 F.2d 436 (2d Cir. 1969) .................................. 17
Knights of the Ku Klux Klan v. East Baton
Rouge Par. Sch. Bd.,
735 F.2d 895 (5th Cir. 1984) ................................ 17
Lackey v. County of Bernalillo,
166 F.3d 1221 (10th Cir. 1999) ...................... 24, 31
x
Lake Country Estates, Inc. v. Tahoe Reg’l
Planning Agency,
440 U.S. 391 (1979) ....................................... passim
Lugar v. Edmonson Oil Co.,
457 U.S. 922 (1982) .............................16–17, 23, 26
Macaluso v. Dane County, 537 N.W.2d 148
(Wis. Ct. App. 1995).............................................. 24
Martin v. Gray,
No. 20-CV-741, 2021 WL 3855566 (E.D.
Wis. Aug. 27, 2021) ............................................... 20
McLeod v. United States,
No. 1:20-CV-595, 2021 WL 5906373 (S.D.
Ala. Dec. 14, 2021) ................................................ 24
Mohamud v. Weyker,
Nos. 17-CV-2069, 17-CV-2070, 2018 WL
4469251 (D. Minn. Sept. 18, 2018) ................ 10, 28
Monroe v. Pape,
365 U.S. 167 (1961) .............................................. 16
Nesmith v. Fulton,
615 F.3d 196 (5th Cir. 1980) ................................ 27
Olson v. Norman,
830 F.2d 811 (8th Cir. 1987) ................................ 17
Osman v. Weyker,
16-CV-908, 2017 WL 3425647 (D. Minn.
Aug. 9, 2017) ....................................................... 5–6
Pettiford v. Greensboro,
556 F. Supp. 2d 512 (M.D.N.C. 2008) ............ 20, 24
Pike v. United States,
868 F. Supp. 2d 667 (M.D. Tenn. 2012) ............... 19
xi
Polak v. City of Omaha,
No. 8:18-CV-358, 2019 WL 1331912 (D. Neb.
Mar. 25, 2019) ....................................................... 20
Pou v. DEA,
923 F. Supp. 573 (S.D.N.Y. 1996) ........................ 19
Ramirez v. City of Trenton,
No. 21-CV-10283, 2022 WL 1284737 (D.N.J.
Apr. 29, 2022) ....................................................... 19
Robinson v. Sauls,
No. 1:18-CV-131-TCB, 2019 WL 12338303
(N.D. Ga. Sept. 16, 2019)...................................... 20
Strickland v. Shalala,
123 F.3d 863 (6th Cir. 1997) ................................ 17
Texas v. Kleinert,
143 F. Supp. 3d 551 (W.D. Tex. 2015) ................. 19
Thai v. County of Los Angeles,
No. 15-CV-583, 2021 WL 5042099 (S.D. Cal.
Oct. 29, 2021) ........................................................ 24
Tyson v. Sabine,
42 F.4th 508 (5th Cir. 2022) ................................. 26
Tyson v. Willauer, 289 F. Supp. 2d 190 (D.
Conn. 2003) ........................................................... 19
United States v. Adan,
913 F. Supp. 2d 555 (M.D. Tenn. 2012) ............. 1, 7
United States v. Classic,
313 U.S. 299 (1941) .............................................. 16
United States v. Fahra,
643 Fed. Appx. 480 (6th Cir. 2016) ................ 1, 5–7
United States v. Price,
383 U.S. 787 (1966) .............................................. 16
xii
Wearry v. Foster,
33 F.4th 260 (5th Cir. 2022) ................................. 34
West v. Mesa,
128 F. Supp. 3d 1233 (D. Ariz. 2015) ................... 19
Wilkinson v. Hallsten,
No. 5:06-CV-2, 2006 WL 2224293 (W.D.N.C.
Aug. 2, 2006) ......................................................... 24
Yassin v. Weyker,
39 F.4th 1086 (8th Cir. 2022) ........................ passim
Yassin v. Weyker,
No. 16-CV-2580, 2017 WL 3425689 (D.
Minn. Aug. 9, 2017) ...............................6, 10, 28, 31
Yassin v. Weyker,
No. 16-CV-2580, 2020 WL 6438892 (D.
Minn. Sept. 30, 2020) .................................... passim
Ziglar v. Abbasi,
137 S. Ct. 1843 (2017) .......................................... 31
STATUTES
28 C.F.R. 0.112 ......................................................... 27
28 U.S.C. 1254(1) ....................................................... 4
42 U.S.C. 1983 ................................................... passim
Cal. Penal Code § 830.8 ........................................... 33
Mich. Comp. Laws § 764.15d ................................... 33
Minn. Stat. § 609.498 ........................................... 9, 27
Minn. Stat. § 626.8453(2) ........................................ 33
xiii
RULES
Fed. R. Civ. P. 56(d) ................................................. 12
OTHER AUTHORITIES
Form USM-3A, Application for Special
Deputation/Sponsoring Federal Agency
Information (rev. July 2012) .................................. 4
Hassan Kanu, Police Empowered to Lie about
Investigations after Federal Appeals Court
Ruling, Reuters (July 20, 2022) ............................. 1
Heather Weyker, GovSalaries.com ............................. 1
Jerome P. Bjelopera, Cong. Rsch. Serv.,
R41780, The Federal Bureau of
Investigation and Terrorism Investigations
(Apr. 24, 2013) ...................................................... 32
Joint Terrorism Task Forces, FBI.gov ..................... 32
Jonathan Levinson & Ryan Haas, US Attorney
says Portland Police Will Remain Federal
Deputies, Against Mayor’s Wishes, Ore. Pub.
Broad. (Sept. 30, 2020) ......................................... 33
Kade Crockford, Beyond Sanctuary: Local
Strategies for Defending Civil Liberties,
Century Found. (Mar. 21, 2018) .......................... 33
Michael Maharrey, Local Cops Can Skirt
State Limits on Surveillance by Joining
Federal Task Forces, Found. for Econ. Educ.
(May 7, 2018) ........................................................ 33
xiv
Radley Balko, State-Federal Task Forces Are
Out of Control, Wash. Post (Feb. 14, 2020) ......... 32
Simone Weichselbaum, Why Some Police
Departments Are Leaving Federal Task
Forces, Marshall Project (Oct. 31, 2019).............. 32
Task Forces, U.S. Att’y Off. for the W. Dist.
Pa. ......................................................................... 32
U.S. Dep’t of Justice, The Department of
Justice’s Terrorism Task Forces (June 2005) ...... 32
Violent Gang Task Forces, FBI.gov ......................... 33
1
PETITION FOR A WRIT OF CERTIORARI
While working as a member of a joint state-federal
task force, St. Paul, Minnesota, police officer and respondent Heather Weyker fabricated a crime ring
that resulted in life-ruining criminal charges against
33 people, including petitioner Ifrah Yassin. None
were convicted.
Though multiple federal courts acknowledged that
the crime ring was a fiction Weyker created through
lies and manipulation, 1 she has walked away scotfree: Weyker has avoided criminal charges; kept her
high-paying job as a St. Paul police officer; 2 and been
shielded from all liability for her egregious unconstitutional acts. 3 The exclusive reason for Weyker’s
1 See, e.g., United States v. Fahra, 643 Fed. Appx. 480, 482
(6th Cir. 2016) (“[T]he district court caught Weyker lying to the
grand jury and, later, lying during a detention hearing, and
scolded her for it on the record. * * * Weyker also lied on an application to get [money for a witness] from the Tennessee victim’s
compensation fund[.]”); United States v. Adan, 913 F. Supp. 2d
555, 568 n.9 (M.D. Tenn. 2012) (noting the court’s “serious concerns about the truthfulness of Weyker’s testimony”); Pet. App.
14a (Ahmed v. Weyker, 984 F.3d 566 (8th Cir. 2020)) (“The plaintiffs are trying to hold a rogue law-enforcement officer responsible for landing them in jail through lies and manipulation.”)
2 Weyker is still employed by the City of St. Paul as a police
sergeant for which she was compensated $119,905 in 2021.
Heather Weyker, GovSalaries.com, https://perma.cc/9UQGSQ4Q; see also Hassan Kanu, Police Empowered to Lie about Investigations after Federal Appeals Court Ruling, Reuters (July
20, 2022), https://perma.cc/C33L-2TQX (noting that an internal
investigation into Weyker by the St. Paul Police Department is
closed).
3 Descriptions of Weyker’s misdeeds span many cases, see
Pet. App. 111a–113a (collecting 25 cases), which the lower courts
2
immunity is her cross-deputization as a Special U.S.
Marshal for task force work.
This Court has made clear that color of state law
and color of federal law are not mutually exclusive;
officials with federal authority can act under color of
state law. See Lake Country Estates, Inc. v. Tahoe
Reg’l Planning Agency, 440 U.S. 391, 399–400 (1979).
But the court below held to the contrary. Despite possessing and abusing power under color of both state
and federal law, the Eighth Circuit held that Weyker
is immune from liability under both. She cannot be
sued under Bivens because her actions do not “exactly
mirror[]” Bivens itself. Pet. App. 19a. And she cannot
be sued under Section 1983 because her federal deputization for task force membership means she was acting exclusively under color of federal law. Pet. App.
9a–10a.
This second holding is the exclusive focus of Yassin’s petition and an issue over which the circuits are
split. Four circuits—the First, Second, Sixth, and
Eighth below—apply a blanket rule that state-officer
members of task forces act under the exclusive color
of federal law. In these circuits, federally deputized
state officers “carr[y] federal authority and act[] under color of that authority rather than under any state
authority,” regardless of their invocation of state
cross-referenced. Because of that and because Yassin has not
been permitted to engage in discovery, the facts most relevant to
this petition come from three Eighth Circuit decisions by Judge
Stras and three District of Minnesota decisions by Judge Ericksen that directly addressed the claims brought against Weyker
by Yassin and her friends Hamdi Mohamud and Hawo Ahmed.
Yassin includes these in her appendix.
3
credentials or reliance on state support. Pet. App. 10a
(cleaned up and citation omitted). But two circuits—
the Third and Seventh—look at the totality of the circumstances to assess whether a state-officer task
force member acts under color of state law, federal
law, or both.
This case underscores why the Court’s guidance on
this issue is needed. A single cross-deputized state officer had the power to ruin dozens of lives through a
years-long campaign of unconstitutional abuses. See,
e.g., note 1, supra. But since Bivens is effectively off
the table after this Court’s decision in Egbert v. Boule,
142 S. Ct. 1793 (2022), she cannot be sued for constitutional violations committed under color of federal
law. And because circuits like the Eighth Circuit below categorically treat the actions of state-officer task
force members as exclusively under color of federal
law, she cannot be sued under Section 1983 either.
This problem is only getting worse as the use of
state-federal task forces continues to expand. Coupled
with the blanket rule adopted below and the unavailability of Bivens, thousands of state officers acting under color of state law are immune from liability. Without this Court’s intervention, these officers are exempt from the restrictions of the Bill of Rights and the
intent of Congress as expressed through Section 1983.
Countless Americans whose constitutional rights are
violated by state officers will have no remedy in American courts—all because a simple two-page form
4
imbued these officers with federal authority in addition to their state authority. 4
The Court should grant the petition.
OPINIONS BELOW
The opinion of the Eighth Circuit, Pet. App. 1a, is
reported as Yassin v. Weyker, 39 F.4th 1086 (8th Cir.
2022). The opinion of the United States District Court
for the District of Minnesota, Pet. App. 36a, is not reported but is available electronically as Yassin v. Weyker, No. 16-CV-2580, 2020 WL 6438892 (D. Minn.
Sept. 30, 2020).
JURISDICTION
The Eighth Circuit entered its decision below on
July 14, 2022. Justice Kavanaugh granted petitioner’s application to extend the time to file her petition to December 9, 2022. Yassin timely files this petition and invokes this Court’s jurisdiction under 28
U.S.C. 1254(1).
STATUTORY PROVISION INVOLVED
The Civil Rights Act of 1871, 42 U.S.C. 1983, provides:
Every person who, under color of any
statute, ordinance, regulation, custom,
4 Form USM-3A, Application for Special Deputation/Spon-
soring Federal Agency Information (rev. July 2012) (requiring an
applicant answer 21 basic questions, e.g., name, employer, citizenship status, and identify a federal sponsor to receive federal
deputization), https://perma.cc/2HDF-WCTB.
5
or usage, of any State * * * , 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[.]
STATEMENT
I.
St. Paul police officer Heather Weyker
fabricated a crime ring through lies and
manipulation.
In 2008, St. Paul police officer Heather Weyker led
her local department’s investigation into an ostensible sex-trafficking ring. Pet. App. 63a. The investigation was loosely aligned with the work of an FBI task
force and poised to advance both Weyker’s career and
the St. Paul Police Department’s standing in the lawenforcement community. 5 But Weyker’s investigation
was a sham; there was no sex-trafficking ring. As the
Sixth Circuit would observe after a “painstaking review of the record,” Weyker and her witnesses spun a
“likely * * * fictitious story.” United States v. Fahra,
643 Fed. Appx. 480, 481–484 (6th Cir. 2016). 6
5 Osman v. Weyker, 16-CV-908, 2017 WL 3425647, *2–3 (D.
Minn. Aug. 9, 2017). The district court relied on its “fuller opinion” in Osman as background for its decisions in Yassin’s case.
Pet. App. 94a–95a.
6 The Sixth Circuit also noted it was “curious that even
though Officer Weyker (the lead agent), Jane Doe 2 (the principal victim-witness), and all but a few of the 30 defendants reside
6
The linchpin of Weyker’s investigation was a witness named Muna Abdulkadir, whom Weyker met in
2009 and developed as a source for the St. Paul police
department. Pet. App. 46a (Yassin v. Weyker, No. 16CV-2580, 2020 WL 6438892 (D. Minn. Sept. 30,
2020)); id. at 97a (Yassin v. Weyker, No. 16-CV-2580,
2017 WL 3425689 (D. Minn. Aug. 9, 2017)). Working
with Abdulkadir and others, Weyker later “exaggerated or fabricated important aspects of” the sex-trafficking story. Fahra, 643 Fed. Appx. at 482. For example, Weyker was caught “lying to the grand jury,”
lying “during a detention hearing,” lying to receive
compensation for one of her witnesses, and “endorsing
the validity of [a] forged birth certificate.” Ibid. See
also Pet. App. 63a–64a (Farah v. Weyker, 926 F.3d
492 (8th Cir. 2019)) (listing other examples of Weyker’s dishonesty).
Because Weyker’s work ultimately grew into a
“joint investigation” between St. Paul and the FBI,
Weyker was cross-deputized as a Special Deputy U.S.
Marshal in August 2010, giving her authority under
both state and federal law. Pet. App. 65a; Pet. App.
129a (Special Deputation Appointment Form). Even
so, the form specified that Weyker remained a fulltime employee of the St. Paul Police Department. Pet.
App. 129a.
in Minnesota, and an overwhelming portion of the events at issue occurred in Minnesota, the federal prosecutor in Minnesota
did not prosecute this case in Minnesota.” Fahra, 643 Fed. Appx.
at 482. Instead, Weyker had to “dupe[]” federal prosecutors in
Tennessee into bringing the charges. Osman, 2017 WL 3425674
at *3.
7
Because of Weyker’s investigation, more than
thirty people were federally indicted. “[O]nly nine
were ultimately tried, and each was acquitted.” Pet.
App. 14a (citing United States v. Adan, 913 F. Supp.
2d 555, 558–559 (M.D. Tenn. 2012); Fahra, 643 Fed.
Appx. at 483–484).
II.
Weyker used the color of her state authority to have Minneapolis police arrest Ifrah
Yassin and her friends to cover for a witness.
In 2011, Petitioner Ifrah Yassin was unaware of
Weyker’s investigation. Pet. App. 2a–3a, 15a. Perhaps
the most accidental of Weyker’s victims, Yassin and
her friends, Hamdi Mohamud and Hawo Ahmed, were
only ensnared because they were attacked by Weyker’s star witness, Abdulkadir.
On June 16, 2011, a verbal confrontation between
Abdulkadir and Ahmed turned physical, and Abdulkadir attacked the girls with a knife. Pet. App. 3a,
37a–38a. Yassin called 911, and Minneapolis police
arrived and interviewed the girls, while Abdulkadir
hid from police in a friend’s apartment nearby. Id. at
3a. Meanwhile, Abdulkadir made a call of her own—
to Weyker, who Mirandized Abdulkadir using a St.
Paul police form. Id. at 9a, 15a. Then, worried about
the possibility of losing a witness, Weyker “sprang
into action.” Id. at 15a.
Using her St. Paul credentials, Weyker injected
herself into the state-law investigation of Abdulkadir’s attack and persuaded Minneapolis officers not to
arrest Weyker’s witness. Instead, Weyker framed
8
Yassin and her friends and had Minneapolis police arrest and charge them with state-law witness tampering. Weyker then documented her efforts in a St. Paul
police report. Pet. App. 3a–4a, 9a–10a.
To accomplish her scheme, Weyker first contacted
Minneapolis police dispatch and, through her selfidentification as a local officer, was put in contact
with Minneapolis Officer Anthijuan Beeks on the
scene. Pet. App. 124a (Minneapolis police report, noting that Beeks was alerted to an urgent message reading, “OFFICER HEATHER WEYKER 710 out of St
Paul would like Officers to call her ASAP”); id. at 39a.
When Beeks called Weyker, she again identified herself as a St. Paul officer, id. at 39a, as well as a member of a federal task force, id. at 3a.
Weyker then lied to Beeks, telling him that she
had “information and documentation” that Yassin
and her friends “had been actively seeking out Abdulkadir” in an effort “to intimidate” her for cooperating
in a federal investigation. Pet. App. 15a. But Weyker
had no such information or documentation. Ibid.; Pet.
App. 4a. Weyker just wanted to shield Abdulkadir
from arrest to facilitate her continued participation in
the investigation. Id. at 15a.
Weyker similarly contacted Beeks’s supervisor,
Minneapolis Police Sergeant Gary Manty. Again,
Weyker held herself out as a St. Paul officer “on Special assignment with the FBI in Tennessee.” Pet. App.
125a–126a (Minneapolis police report); id. at 4a. She
repeated the fabricated information she provided
Beeks. Based on Weyker’s statements, Sergeant
Manty found probable cause to arrest Yassin and her
9
friends for witness tampering under Minnesota law.
Ibid.; Minn. Stat. § 609.498.
Weyker then documented her actions in a St. Paul
police report. Pet. App. 130a–134a (SPPD Report); id.
at 9a–10a. The next day, Weyker doubled down. She
filed a criminal complaint in support of federal
charges. Once again, Weyker fabricated facts, gave
false information, and withheld exculpatory evidence—all with the intention that Yassin, Mohamud,
and Ahmed would continue to be pursued for crimes
Weyker knew the girls had not committed. Id. at 3a–
4a. In her supporting affidavit, Weyker identified herself as an “FBI Task Force Officer / St Paul MN PD
Officer.” Id. at 4a. As the Eighth Circuit noted, Weyker’s federal “affidavit was riddled with inaccuracies,
just like her call to Officer Beeks the day before.” Ibid.
As a result of Weyker’s actions, Yassin, Mohamud,
and Ahmed spent approximately two years in federal
custody, where Ahmed gave birth in prison awaiting
trial. Pet. App. 16a. The government eventually dismissed its case against Mohamud, and a jury acquitted Ahmed and Yassin. Id. at 4a, 16a.
Yassin—along with Ahmed, Mohamud, and many
others caught up in her sham investigation—sued
Weyker. Pet. App. 111a–113a.
III.
When Yassin sued Weyker, the lower
courts denied Weyker qualified immunity.
Because of Weyker’s dual status as a state and federal officer, Yassin, Mohamud, and Ahmed brought
Fourth Amendment claims against Weyker as a St.
10
Paul police officer under 42 U.S.C. 1983 and as a federal marshal under Bivens. Pet. App. 4a–5a. Mohamud’s and Ahmed’s cases were consolidated in the
district court, see id. at 80a (Mohamud v. Weyker,
Nos. 17-CV-2069, 17-CV-2070, 2018 WL 4469251 (D.
Minn. Sept. 18, 2018)), and Yassin’s case was ultimately consolidated in the circuit court with the cases
of several plaintiffs who were charged in Weyker’s
crime-ring investigation, see Pet. App. 57a (Farah v.
Weyker). District of Minnesota Judge Ericksen heard
all the cases against Weyker.
Weyker sought dismissal of the claims in Yassin’s,
Mohamud’s, and Ahmed’s cases, asserting that she
(1) was entitled to qualified immunity; (2) was not liable under Bivens because her actions were not identical to those in Bivens; and (3) was not liable under
Section 1983 because she was acting under color of
federal law when she framed the girls. See Pet. App.
42a.
The district court rejected Weyker’s arguments,
concluding that her actions violated clearly established law and that Yassin, Mohamud, and Ahmed
had valid causes of action against Weyker. Pet. App.
91a–92a, 101a–105a. Because the court had concluded Weyker’s actions fell within an established
context for Bivens, the district court did not reach
whether Yassin’s claims should be brought under Section 1983 or Bivens. Id. at 101a n.5; see also id. at 92a
(same in Mohamud’s and Ahmed’s cases). Weyker appealed the various cases against her.
In Yassin’s consolidated appeal, the Eighth Circuit
concluded in a decision by Judge Stras that Weyker
11
was not entitled to qualified immunity for Yassin’s
claims under the Fourth Amendment because “a reasonable officer would know that deliberately misleading another officer into arresting an innocent individual to protect a sham investigation is unlawful.” Pet.
App. 79a. But the Court did not address whether Yassin could sue Weyker under Bivens or Section 1983
because Weyker had not meaningfully addressed the
issue on appeal. Id. at 78a. So the Eighth Circuit remanded that issue to the district court. Id. at 77a.
IV.
Despite Weyker’s dual authority under
color of both state and federal law, the
Eighth Circuit held that she could not be
sued for abusing either.
While Yassin’s case returned to the district court,
Mohamud’s and Ahmed’s consolidated cases came before the Eighth Circuit on whether Weyker could be
sued under Bivens. In another decision written by
Judge Stras, the court held 2-1 that she could not be.
Finding that Weyker’s actions did not “exactly mirror[]” Bivens itself, the Eighth Circuit found that the
claims against Weyker presented a new context for
which special factors counseled hesitation against extending a constitutional remedy. Pet. App. 18a–27a.
The Eighth Circuit tried to soften the harsh result
of its denial of a Bivens remedy against Weyker by
pointing to Section 1983 as an alternative. “Just because a Bivens remedy is off the table does not mean
that 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.” Pet. App. 27a. But as dissenting Judge Kelly
12
pointed out, Judge Ericksen had already held in Yassin’s case that Weyker could not be sued under Section 1983 either. Pet. App. 35a n.7.
Indeed, three months earlier, Judge Ericksen had
decided Yassin’s case on the issue of Section 1983. Despite “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 [in a St. Paul police report], and Weyker’s relationship with Abdulkadir before Weyker’s [federal
cross-]deputization,” the district court held that she
could not be sued under Section 1983 and granted
summary judgment to Weyker. Pet. App. 45a–46a. To
reach that conclusion, the district court adopted a
blanket rule that, because Weyker was federally deputized as a member of a task force, she was acting exclusively under color of federal law. Id. at 47a–48a (citations omitted). And although no discovery had been
permitted in the case, the court also denied Yassin’s
request for limited discovery under Rule 56(d). Id. at
11a.
On appeal, the Eighth Circuit affirmed in a third
decision by Judge Stras. Pet. App. 2a. Despite the
court’s earlier offer that Section 1983 provided a potential avenue for relief, id. at 27a, the court closed off
that avenue in Yassin’s case. Applying the same blanket-rule analysis as the district court, the Eighth Circuit held that Weyker could not be sued under Section
1983. Id. at 9a–10a.
The court found it irrelevant that “Weyker occasionally let her local practices creep into her federal
activities.” Pet. App. 9a. It did not matter, for
13
instance, that Weyker had repeatedly held herself out
as a St. Paul officer, used a St. Paul form to advise
Abdulkadir of her Miranda rights, or filed a St. Paul
police report. According to the Eighth Circuit, those
facts did not establish color of state law. Id. at 9a–10a.
Nor did it matter that Weyker used Minneapolis officers to effect her unconstitutional acts. Id. at 10a n.3.
As a deputized federal agent, Weyker “carried federal
authority and acted under color of that authority rather than under any state authority” she had. Id. at
10a (quoting King v. United States, 917 F.3d 409, 433
(6th Cir. 2019), cert. denied on Section 1983 issue sub
nom. King v. Brownback, 140 S. Ct. 2565 (2020)
(mem.), and rev’d on other grounds sub nom. Brownback v. King, 141 S. Ct. 740 (2021)). All that matters,
in other words, is that Weyker “purported to act in the
performance of her federal duties, even if she overstepped her authority and misused power.” Pet. App.
10a–11a (cleaned up); id. at 8a (“Color of law is rooted
in authority.”).
As a result, the Eighth Circuit held that Weyker—
whose fictitious criminal investigation ruined the
lives of dozens of people through egregious and judicially acknowledged constitutional violations—could
not be held accountable for her abuses of federal or
state authority.
REASONS FOR GRANTING THE PETITION
Across the United States, thousands of state and
local officers like Weyker are federally deputized to
work on joint state-federal task forces. These officers
do not cede their state authority when cross-deputized. To the contrary, they are only eligible for task
14
force membership because of that authority. They remain employed by state agencies, continue to be paid
from state budgets, and carry state-issued weapons
and badges. By design, these duly authorized officers
wield power under both state and federal law. Still,
some lower courts have held that these state-officer
task force members categorically act under the exclusive color of federal law. But the circuits are split over
this issue.
In the First, Second, Sixth, and Eighth Circuits,
“color of state law” and “color of federal law” are mutually exclusive concepts. These circuits then apply a
blanket rule: “When state or local officers are federally deputized to work as task force officers in support
of a federal mission, their actions are under color of
federal law, not state law.” Gov’t C.A. Br. at 20 (citing
the decisions addressed in Reasons I(B), infra). But
other circuits, like the Third and Seventh, look at the
totality of the circumstances to determine whether
these officers act under color of state law, federal law,
or both.
Because Weyker has been shielded from accountability for her actions under color of both state and federal law, Yassin’s case provides a good vehicle for this
Court to resolve the split. Moreover, her case neatly
illustrates the newfound importance of this issue. The
number of state officers being federally deputized has
steadily grown to facilitate the nationwide expansion
of task forces. Meanwhile, this Court has curtailed the
availability of the court-created cause of action under
Bivens, and the rule applied by the Eighth Circuit curtails the availability of the Congress-created cause of
action under Section 1983. Without this Court’s
15
intervention, state-officer task force members, who
act with power under both state and federal law, will
be accountable for abusing neither.
I.
The circuits are split over whether state
officers working on task forces can act under color of state law.
Section 1983 provides a cause of action for constitutional violations committed “under color of” state
law. 42 U.S.C. 1983. This Court has interpreted that
phrase broadly, looking to the totality of the circumstances to determine whether an individual acts under color of state law, federal law, or both. But the circuit courts are split on whether that test applies to
one specific group: state-officer members of joint
state-federal task forces.
Evaluating task force members, two circuits apply
the traditional test outlined by this Court and consider the totality of the circumstances under which
task force members act. But another four circuits,
now including the Eighth below, apply a per se rule
that state-officer task force members act exclusively
under color of federal law. These circuits reach this
conclusion by ignoring this Court’s guidance that officials can wield both state and federal power, and they
treat as irrelevant the obvious fact that state-officer
task force members are federally deputized for that
very reason.
16
A. This Court has made clear that an officer can act under color of both state
and federal law.
Actions taken under color of state law include
every “[m]isuse of power, possessed by virtue of state
law and made possible only because the wrongdoer is
clothed with the authority of state law[.]” Monroe v.
Pape, 365 U.S. 167, 184 (1961) (quoting United States
v. Classic, 313 U.S. 299, 325–326 (1941)). Accordingly,
even persons jointly engaged with state officers can
act under color of state law. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 152 (1970) (citing United States v.
Price, 383 U.S. 787, 794 (1966) (holding that a private
person can act under color of state law)).
To determine whether a person acts under color of
state law, this Court looks to the totality of the circumstances. Burton v. Wilmington Parking Auth.,
365 U.S. 715, 722 (1961). Two factors govern this
analysis: (1) whether the deprivation is “caused by the
exercise of some right or privilege created by the State
* * * or by a person for whom the State is responsible”
and (2) whether the party charged with the deprivation is “a person who may fairly be said to be a state
actor.” Lugar v. Edmonson Oil Co., 457 U.S. 922, 937
(1982). 7 On the second factor, state actors include
state officials, as well as those who act with them or
“obtain[] significant aid from [them], or [individuals
whose] conduct is otherwise chargeable to the State.”
Ibid, see also Edmonson v. Leesville Concrete Co., 500
7 While the two factors are not the same, “[t]hey collapse into
each other when the claim of constitutional deprivation is directed against a party whose official character is such as to lend
the weight of the State to his decisions.” Lugar, 457 U.S. at 937.
17
U.S. 614, 620–622 (1991) (applying Lugar to hold that
a private litigant using peremptory challenges to
strike jurors acts under color of state law).
Relying in large part on the Lugar test, the circuit
courts have held that both federal officers and private
persons can act “under color of state law.” 8 Although
the Court has never squarely addressed this issue, it
came close in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979). There,
Lake Tahoe property owners brought claims under
Section 1983 and Bivens against officers of the Tahoe
Regional Planning Agency—a body created through a
congressionally approved compact between California
and Nevada. Id. at 393–394. The officers argued that
congressional approval precluded their acts from being under color of state law. See id. at 396. The Ninth
Circuit agreed. It concluded that “the requirement of
federal approval of [an] interstate Compact foreclosed
the possibility that * * * officers could be found to be
‘under color of state law’ within the meaning of
§ 1983.” Id. at 399.
This Court rejected that holding, explaining instead that “[e]ven if it were not well settled that
§ 1983 must be given a liberal construction, these
8 E.g., Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d
853, 869–870 (10th Cir. 2016); Hindes v. FDIC, 137 F.3d 148,
158 (3d Cir. 1998); Strickland v. Shalala, 123 F.3d 863, 866 (6th
Cir. 1997); Cabrera v. Martin, 973 F.2d 735, 742–744 (9th Cir.
1992); Olson v. Norman, 830 F.2d 811, 821 (8th Cir. 1987);
Knights of the Ku Klux Klan v. East Baton Rouge Par. Sch. Bd.,
735 F.2d 895, 899–900 (5th Cir. 1984); Hampton v. Hanrahan,
600 F.2d 600, 623 (7th Cir. 1979), overruled in part on other
grounds by 446 U.S. 754 (1980); Kletschka v. Driver, 411 F.2d
436, 448–449 (2d Cir. 1969).
18
facts adequately characterize the alleged actions of
the respondents as ‘under color of state law’ within
the meaning of that statute. * * * [A]nd there is no
need to address the question whether there is an implied remedy [under Bivens].” Lake Country, 440 U.S.
at 399–400 (footnote omitted). Thus, Lake Country
makes clear that officials with federal authority can
act under color of state law and shows that color of
state law and color of federal law are not mutually exclusive. Lake Country further indicates that, to the extent it is unclear whether actions were taken under
color of state or federal law, Section 1983 liability
should prevail. Ibid. (declining to even consider
whether officials acted under color of federal law after
finding that they acted under color of state law).
But when it comes to state officers working on
joint state-federal task forces, the circuits have
largely ignored Lake Country’s guidance. Now, they
are split on how to designate the actions of these dulyauthorized state-federal actors. Although the role of
state-officer task force members is intended to allow
officers like Weyker to wield power under color of both
state and federal law, several circuits, like the Eighth
Circuit below, treat them exclusively as federal officers.
B. Four circuits apply a per se rule that
state-officer task force members act exclusively under color of federal law.
With its opinion below, the Eighth Circuit joins the
First, Second, and Sixth Circuits in applying a categorical rule that task force members act under color
19
of federal law, 9 regardless of the circumstances: “As a
deputized federal agent, [a task force member] carrie[s] federal authority and act[s] under color of that
authority rather than under any state authority[.]”
Pet. App. 10a (quoting King, 917 F.3d at 433); see also
Pet. App. 9a–10a (holding that all actions taken incident to a task force investigation are necessarily and
exclusively federal, despite indicia of state authority). 10
9 See Pet. App. 9a–10a; DeMayo v. Nugent, 517 F.3d 11, 14
n.5 (1st Cir. 2008); Guerrero v. Scarazzini, 274 Fed. Appx. 11, 12
n.1 (2d Cir. 2008) (summary order); King, 917 F.3d at 433; see
also Gov’t C.A. Br. at 20–22 (successfully arguing in the Eighth
Circuit that the foregoing decisions support the proposition that
“a federally deputized officer acts under color of federal law”).
Accord Estate of Rahim v. Doe, 51 F.4th 402, 407 n.3 (1st Cir.
2022) (relying on the fact that the parties and district court
treated cross-deputized task force members as having acted under color of federal law).
10 Many district courts have also applied this categorical rule
to task force members. See, e.g., published decisions in Estate of
Rahim v. United States, 506 F. Supp. 3d 104, 116 n.10 (D. Mass.
2020), rev’d on other grounds Rahim, 51 F.4th at 402; West v.
Mesa, 128 F. Supp. 3d 1233, 1240 (D. Ariz. 2015), aff ’d, 708 Fed.
Appx. 288 (9th Cir. 2017); Texas v. Kleinert, 143 F. Supp. 3d 551,
562 (W.D. Tex. 2015), aff ’d, 855 F.3d 305 (5th Cir. 2017); Pike v.
United States, 868 F. Supp. 2d 667, 677–678 (M.D. Tenn. 2012);
Aikman v. County of Westchester, 691 F. Supp. 2d 496, 498
(S.D.N.Y. 2010); Tyson v. Willauer, 289 F. Supp. 2d 190, 192 nn.1
& 3 (D. Conn. 2003); Bordeaux v. Lynch, 958 F. Supp. 77, 83–84
(N.D.N.Y. 1997); Pou v. DEA, 923 F. Supp. 573, 579 (S.D.N.Y.
1996), aff ’d sub nom. Pou v. Loszynski, 107 F.3d 3 (2d Cir. 1997).
See also, e.g., unpublished decisions in Pet. App. 47a–48a (district court below quoting at length from King, Guerrero, and
DeMayo); Deavers v. Martin, No. 2:21-CV-00423, 2022 WL
4348474 (S.D. W. Va. Sept. 19, 2022); Ramirez v. City of Trenton,
No. 21-CV-10283, 2022 WL 1284737 (D.N.J. Apr. 29, 2022);
Askar v. Hennepin County, No. 21-CV-1829, 2022 WL 1241921
20
These courts hold that if a state officer is a member of a task force, she acts exclusively under color of
federal law. They do not consider the totality of the
circumstances or independently evaluate facts establishing color of state law. Section 1983 liability is prohibited. A plaintiff may proceed against task force
members, if at all, under Bivens. See Pettiford v.
Greensboro, 556 F. Supp. 2d 512, 534–537 (M.D.N.C.
2008) (discussing alternative legal frameworks applied when state and federal officers act cooperatively).
For instance, in King v. United States, the Sixth
Circuit held that a deputized state officer “carrie[s]
federal authority and act[s] under color of that authority rather than under any state authority[.]” 917
F.3d at 433 (citing Guerrero v. Scarazzini, 274 Fed.
Appx. 11, 12 n.1 (2d Cir. 2008) (summary order)). 11 In
(D. Minn. Apr. 27, 2022); Hari v. Smith, No. 20-CV-1455, 2022
WL 1122940 (D. Minn. Jan. 31, 2022), report & recommendation
adopted, 2022 WL 612100 (D. Minn. Mar. 2, 2022); Martin v.
Gray, No. 20-CV-741, 2021 WL 3855566 (E.D. Wis. Aug. 27,
2021); Robinson v. Sauls, No. 1:18-CV-131-TCB, 2019 WL
12338303 (N.D. Ga. Sept. 16, 2019); Boudette v. Sanders, No. 18CV-02420, 2019 WL 3935168 (D. Col. Aug. 19, 2019); Polak v.
City of Omaha, No. 8:18-CV-358, 2019 WL 1331912 (D. Neb.
Mar. 25, 2019).
11 In King, the plaintiff filed a cross-petition for certiorari on
a question similar to the question presented here: “Does a law
enforcement officer’s membership in a joint state-federal police
task force managed, in part, by a federal agency preclude him or
her from acting ‘under color of state law’ for purposes of Section
1983?” Pet. for Cert., King v. Brownback, No. 19-718 (S. Ct. Nov.
27, 2019). Although the Court granted the government certiorari
on another issue, Brownback v. King, 140 S. Ct. 2563 (2020)
(mem.), it denied King’s cross-petition on the issue Yassin now
petitions for this Court to consider here, King, 140 S. Ct. at 2565.
21
King, a Grand Rapids police detective cross deputized
as a Special U.S. Marshal for work on a task force was
spared liability under Section 1983 for brutally beating an innocent college student. Although the beating
resulted from the Michigan detective’s misidentification of the student as a man wanted under a Michigan
warrant for a Michigan crime and for whom the detective was searching in Michigan, the Sixth Circuit
concluded that the detective had not acted under color
of state law. King, 917 F.3d at 416–418, 433. “Plaintiff’s claims against [the detective] are Bivens claims
and not § 1983 claims.” Id. at 434; see also Pet. App.
10a (circuit court below citing King for the blanket
rule); Pet. App. 47a (district court below, same).
In DeMayo v. Nugent, the First Circuit similarly
concluded that Massachusetts State Police Troopers
working as members of a DEA task force acted under
color of federal law when they made a warrantless entry into a home during a controlled delivery of a suspicious package. 517 F.3d 11, 14 n.5 (1st Cir. 2008).
Because the state troopers “were part of a DEA task
force,” they had not acted under color of state law. 12
Ibid.; see also Pet. App. 48a (district court below citing DeMayo for the blanket rule). The plaintiff’s
12 The First Circuit did not independently consider whether
the officers acted under color of state or federal law. Instead, it
accepted the agreement of the parties and district court on that
point. Id. at 14 & n.5. Nevertheless, the court’s approval of
Bivens claims against the officers and its consideration of qualified immunity necessarily implies its agreement with the district
court and parties because the availability of a claim under
Bivens is an issue antecedent to qualified immunity. See Hernandez v. Mesa, 137 S. Ct. 2003, 2006–2007 (2017).
22
claims proceeded, therefore, under Bivens. DeMayo,
517 F.3d at 12–13.
In Guerrero v. Scarazzini, the Second Circuit concluded that two NYPD detectives working on an FBI
task force acted under color of federal law when they
arrested a man on the mistaken belief that he was a
drug dealer. 274 Fed. Appx. 11, 12 (2d Cir. 2008)
(summary order). Although the plaintiff brought his
claims against the detectives under Section 1983, the
court treated them as Bivens claims “because [the detectives] were federally deputized for their Task Force
work.” Id. at 12 n.1. As in DeMayo, the parties apparently agreed on that point, ibid., but the result was
the same: membership in a task force meant that the
detectives were acting under the exclusive color of federal law, see also Pet. App. 47a (district court below
citing Guerrero for the blanket rule); Rahim, 51 F.4th
at 407 n.3 (treating the actions of a cross-deputized
Boston detective as exclusively under color of federal
law because “he was working as a member of a federal
task force”).
Citing King, DeMayo, and Guerrero for its argument that “federally deputized [state] officer[s] act[]
under color of federal law,” the government persuaded
the Eighth Circuit below to adopt the same blanket
rule. Gov’t C.A. Br. at 20–21 (citing King, 917 F.3d at
433; DeMayo, 517 F.3d at 14 n.5; Guerrero, 274 Fed.
Appx. at 12 n.1); see also id. at 28 n.7 (government
insisting that the Eighth Circuit not even consider the
facts because state-officer task force members deputized as “federal officials cannot be held to have acted
under color of state law”). And after describing multiple examples of state-law authority Weyker used to
23
effect Yassin’s unlawful arrest, Pet. App. 9a, the
Eighth Circuit concluded that none “alter[ed] the federal character of what she did,” id. at 10a. Because
Weyker’s role on the task force led to Yassin’s arrest,
she acted under the exclusive color of federal law and
could not be sued under Section 1983. Ibid. (citing
King, 917 F.3d at 433).
Even the fact that Minneapolis officers made the
arrest on Weyker’s behalf did not persuade the Eighth
Circuit that Section 1983 liability is available. To the
contrary, the court waved away clear indications of
state color in that regard. Pet. App. 10a n.3. Reinforcing its view of state and federal authority as mutually
exclusive, the court stated that “[f]ederal and state officers work together all the time without clouding
their distinct sources of authority[.]” Ibid. But it did
not address how Weyker’s status as both a state and
federal officer still provided her a distinct source of
authority.
C. Two circuits consider the totality of
the circumstances to decide whether
state-officer task force members act
under color of state law, federal law, or
both.
The Third and Seventh Circuits take a different
approach. 13 Consistent with this Court’s reasoning in
Lake Country and Lugar, those circuits and likely the
Tenth 14 look beyond the label of an officer’s authority
13 Couden v. Duffy, 446 F.3d 483 (3d Cir. 2006); Askew v.
Bloemker, 548 F.2d 673 (7th Cir. 1976).
14 Though it has not addressed this issue directly, the Tenth
Circuit dismissed Section 1983 claims against a cross-deputized
24
and consider the circumstances of her acts to determine whether they were taken under color of state
law, federal law, or both. 15
The Third Circuit looks to the totality of the circumstances. In Couden v. Duffy, for instance, the
court held that Delaware police officers working on a
task force were acting under color of state, not federal,
law because the fugitive they arrested was wanted by
local police and the investigation was initiated locally.
446 F.3d 483, 489, 499 (3d Cir. 2006). Accordingly, the
task force officers were subject to claims under Section 1983. Id. at 499. Accord Johnson v. Orr, 780 F.2d
386, 390 (3d Cir. 1986) (“There is no set formula for
determining whether the employees of an agency with
both state and federal characteristics act under color
of state law. All of the circumstances must be
task force member on the basis of qualified immunity, thereby
tacitly accepting that task force members can act under color of
state law, so long as they are not entitled to some other form of
immunity. See Lackey v. County of Bernalillo, 166 F.3d 1221
(10th Cir. 1999) (table).
15 Many district courts have also adopted the totality-of-thecircumstances approach. See, e.g., Pettiford, 556 F. Supp. 2d at
534–535; McLeod v. United States, No. 1:20-CV-595, 2021 WL
5906373 (S.D. Ala. Dec. 14, 2021); Thai v. County of Los Angeles,
No. 15-CV-583, 2021 WL 5042099 (S.D. Cal. Oct. 29, 2021); Jackson v. Vartanian, No. 20-CV-1148, 2021 WL 4523072 (E.D. Wis.
Oct. 4, 2021); Bates v. City of Atlanta, No. 1:20-CV-4074, 2021
WL 5034837 (N.D. Ga. Aug. 26, 2021); Economan v. Cockrell, No.
1:20-CV-32, 2020 WL 6874134 (N.D. Ind. Nov. 23, 2020); Adams
v. Springmeyer, No. 11-CV-790, 2012 WL 1865736 (W.D. Pa.
May 22, 2012); cf. Wilkinson v. Hallsten, No. 5:06-CV-2, 2006 WL
2224293, at *8 n.7 (W.D.N.C. Aug. 2, 2006), aff ’d, 225 Fed. Appx.
127 (4th Cir. 2007); see also Macaluso v. Dane County, 537
N.W.2d 148 (Wis. Ct. App. 1995) (table).
25
examined to consider whether the actions complained
of were sufficiently linked to the state.”).
In the Seventh Circuit, too, “the totality of the circumstances surrounding the alleged” actions governs
the analysis of whether task force members act “pursuant to federal authority [or] under color of any state
law.” Askew v. Bloemker, 548 F.2d 673, 677 (7th Cir.
1976). In Askew, the court considered whether St.
Louis, Missouri, police officers could be sued under
Section 1983 for their raid of a home in Illinois as
members of a drug task force. Although the court concluded that the officers were acting under color of federal law, it did not apply the blanket rule later
adopted by its sister circuits. Considering the undisputed facts in the pleadings and those elicited
through discovery, the court concluded that the officers were acting under color of federal authority. Id. at
677. Importantly, the court emphasized that the actions of the state officers were taken “pursuant solely
to federal authority” because—unlike Weyker here—
they had no authority under color of Missouri law to
raid a home in Illinois. Ibid.
With half of the circuits weighing in, they are split
on this issue.
II.
This case provides a good vehicle for the
Court to resolve the circuit split because
the question is cleanly presented and dispositive.
This case is a particularly good vehicle to address
the circuit split for two reasons. First, under the
standards applied outside the task force context,
26
Weyker was acting under color of state law. And second, the Eighth Circuit’s decision in Ahmed v. Weyker,
Pet. App. 13a, confirms that Bivens claims are unavailable against Weyker, making the question of
whether Weyker was acting under color of state law,
federal law, or both, dispositive.
A. Weyker was acting under color of state
law.
Applying the two-part test from Lugar, Weyker
was acting under color of state law—even if she was
also acting under color of federal law. 457 U.S. at 937.
Based on the limited facts that have been deduced
without any discovery, Weyker’s deprivation of Yassin’s rights was caused “by the exercise of some right
or privilege created by the State * * * or by a person
for whom the State is responsible.” Ibid.
Weyker is a state official—a St. Paul police officer—and someone for whom the state is responsible.
Moreover, Weyker repeatedly held herself out as a
state official to frame Yassin. See, e.g., Tyson v. Sabine, 42 F.4th 508, 521–523 (5th Cir. 2022) (relying on
self-identification to establish color of state law). And
Weyker’s representations of state authority were not
inconsequential: her expressed identity as a local officer allowed Weyker to gain nearly immediate access
to the Minnesota criminal investigation and then persuade Minnesota officers to arrest Yassin and her
friends. Presumably that is why Weyker chose to
identify herself as a St. Paul officer.
Furthermore, Weyker’s ability to serve on the task
force was conditioned on her status as a St. Paul
27
officer. Pet. App. 129a (Special Deputations Form,
noting Weyker’s employment with the St. Paul Police
Department). Indeed, Weyker was only eligible to be
cross-deputized as a Special Deputy U.S. Marshal because she was a local law enforcement officer. See 28
C.F.R. 0.112 (listing the types of individuals eligible
for deputization: Department of Justice employees;
federal, state, or local law enforcement officers; and
employees of private security companies providing
courtroom security). If a private litigant’s use of peremptory jury challenges constitutes color of state law,
Edmonson, 500 U.S. at 620–622, so too does a St. Paul
police officer persuading Minneapolis police to arrest
someone under state law. Minn. Stat. § 609.498.
Moreover, it does not matter that Weyker was also
exercising federal authority when she framed Yassin.
Although circuit courts like the Eighth Circuit below
apply a mutually exclusive approach when deciding
between the color of state and federal law, that approach conflicts with the plain language of Section
1983. The statute creates liability for “every person”
who violates rights “under color of” state law—not
“under exclusive color of” state law or “under primary
color of” state law. 42 U.S.C. 1983. It is, therefore, irrelevant that Weyker’s actions under color of state
law may have been simultaneously under color of federal law or that her state and federal authority was
intertwined. See Lake Country, 440 U.S. at 399–400;
see also, e.g., Johnson, 780 F.2d at 392 n.11; Nesmith
v. Fulton, 615 F.3d 196, 200–201 & n.7 (5th Cir. 1980).
After all, Weyker was cross-deputized for the very
purpose of granting her both state and federal power.
Under Section 1983, the only question is whether
Weyker acted under any color of state law when she
28
framed Yassin and her friends. As an “FBI Task Force
Officer / St Paul MN PD Officer,” Weyker did. Pet.
App. 4a.
B. The Eighth Circuit has held that Weyker cannot be sued for her actions under color of federal law.
Unlike every other circuit decision treating task
force members as exclusively federal officers, where
task force members could still be pursued under
Bivens, the Eighth Circuit’s decision below holds that
Weyker cannot be pursued at all. Compare, e.g., Pet.
App. 20a–27a (denying the availability of a Bivens
remedy to a state-officer task force member), with
King, 917 F.3d at 433–444 (allowing Bivens claims to
proceed against a state-officer task force member).
For that reason, this case is a particularly salient vehicle to address the question presented.
In other words, if liability for task force officers is
available under Bivens or Section 1983, the issue presented in this petition is largely academic. That’s why
the district court was indifferent to whether Weyker
acted under color of state or federal law before the
Eighth Circuit closed off Bivens. Before that happened, it did not matter. As the district court explained, since “a Fourth Amendment claim * * * does
not present a new context for a Bivens action; and because § 1983 and Bivens claims are analyzed similarly, the Court does not need to reach the question of
whether Yassin’s claim should be brought under
§ 1983 or Bivens.” Pet. App. 101a n.5; see also id. at
92a (decision in Mohamud’s and Ahmed’s cases that
“discerned no need to decide whether the proper
29
vehicle for [the plaintiff’s] claims is a § 1983 or Bivens
cause of action” (internal quotation marks and citations omitted)).
But now that Weyker cannot be sued under
Bivens, Section 1983 is Yassin’s only avenue for relief,
and the question she presents to this Court is dispositive. If Weyker was acting under color of state law,
she may be sued for her constitutional violations. But
if Weyker was acting under the exclusive color of federal law, she is immune from liability.
III.
The question presented is exceptionally
important because this Court has rendered Bivens a dead letter, while the number of state-officer task force members
continues to expand.
Yassin’s case also illustrates the exceptional importance of the question presented. This Court has recently held that Bivens is unavailable outside of very
narrow circumstances because Congress has not created a statutory cause of action providing liability for
actions taken under color of federal law. But decisions
like the Eighth Circuit’s below mean that the growing
number of state-officer task force members cannot be
sued under the statutory cause of action Congress created through Section 1983 to provide liability for actions taken under color of state law. That result
clashes with this Court’s reasoning in Egbert and the
language of Section 1983.
30
A. Egbert v. Boule all but prohibits claims
for constitutional abuses committed
under color of federal law because
Congress has not created a statutory
cause of action.
In Egbert v. Boule, this Court restricted the availability of claims for constitutional violations committed under color of federal law. Egbert reasoned that
the court-created cause of action in Bivens was misplaced because “prescribing a cause of action is a job
for Congress, not the courts[.]” 142 S. Ct. at 1800. Accordingly, courts should not imply a cause of action if
“there is any rational reason (even one) to think that
Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.’” Id. at
1805 (citation omitted). The Eighth Circuit held that
Weyker cannot be sued for her actions under color of
federal law for this very reason. Pet. App. 18a–27a.
But its decision below will now allow state officers to
circumvent the statutory cause of action Congress did
create: Section 1983.
The use of joint task forces and the federal deputization of state and local officers to staff them has
continued to grow. Considering Egbert’s removal of liability for federal officers and the circuit decisions
treating state officer task force members as federal officers, state officers now have the incentive to exploit
an enormous loophole in Section 1983 that thwarts
the intent of Congress and allows task force members
to violate the Constitution under color of state law
without the consequence Congress statutorily prescribed. If a state officer wants to avoid liability, all
31
she needs to do is be deputized for membership in a
task force.
Before Egbert the problem of dual authority was
often theoretical because, in cases involving unreasonable searches and seizures, Ҥ 1983 and Bivens
claims [we]re analyzed similarly.” Pet. App. 101a n.5.
That’s why circuit decisions on both sides of the split
were ambivalent about the issue—e.g., relying on the
agreement of the parties or hardly addressing the issue at all. See DeMayo, 517 F.3d at 14 & n.5 (relying
on party characterizations); Guerrero, 274 Fed. Appx.
at 12 n.1 (same); Lackey v. County of Bernalillo, 166
F.3d 1221 (10th Cir. 1999) (table) (not directly addressing the issue). Like the district court explained
below, it did not matter. Pet. App. 101a n.5. Bivens
was generally available for constitutional claims
against federal officers for individual instances of law
enforcement overreach in violation of the Fourth
Amendment. See Ziglar v. Abbasi, 137 S. Ct. 1843,
1856–1857, 1862 (2017). That covered most instances
of abuse by state-officer task force members. After Egbert that is no longer true. The issue is not only important but, as this case illustrates, dispositive on
whether the Constitution limits any of the actions of
state officers working on task forces.
B. The Eighth Circuit rule allows state officers to circumvent the statutory
cause of action Congress created in
Section 1983.
Now that Egbert has restricted the availability of
constitutional claims for actions taken under color of
federal law, the Eighth Circuit’s categorical rule
32
deeming all actions of state-officer task force members under color of federal law is doubly concerning.
Worse still, the categorical rule comes as the use of
joint task forces has exploded over the past fifty years.
So the number of state officers who can avoid liability
under Section 1983 is enormous and will only continue to increase.
The first multi-jurisdictional task forces were assembled in the early 1970s to fight the war on drugs. 16
Today at least a thousand operate under the direction
of various federal agencies. 17 That number is growing. 18 Task forces are charged with policing everything from narcotics to car thefts. The FBI, for example, advertises its involvement with task forces aimed
at terrorism, gangs, organized crime, cyber-crimes,
white collar crimes, “Indian Country” crimes, bank
16 Radley Balko, State-Federal Task Forces Are Out of Control, Wash. Post (Feb. 14, 2020), https://perma.cc/UNE4-HLU2.
17 Simone Weichselbaum, Why Some Police Departments Are
Leaving Federal Task Forces, Marshall Project (Oct. 31, 2019),
https://perma.cc/ALR2-HLZG; see also Task Forces, U.S. Att’y
Off. for the W. Dist. Pa., https://perma.cc/6S8Q-ZGWV (listing
nine different task forces in Pittsburgh, Pennsylvania).
18 In 1979, the FBI and NYPD formed the first state-federal
terrorism task force. By 2001, there were 35, and by 2005, there
were 103, comprised of more than 5,000 state and federal officers. See, e.g., U.S. Dep’t of Justice, The Department of Justice’s
Terrorism Task Forces 15 (June 2005), https://perma.cc/Q2XERW8E. “Today there are about 200[.]” Joint Terrorism Task
Forces, FBI.gov, https://perma.cc/FJR9-FFJ5. As of 2013, terrorism task force members represented more than 600 state agencies and 50 federal agencies. Jerome P. Bjelopera, Cong. Rsch.
Serv., R41780, The Federal Bureau of Investigation and Terrorism Investigations 13 (Apr. 24, 2013), https://perma.cc/MG62M37R.
33
robberies, narcotics, kidnappings, motor vehicle
thefts, and fugitives. 19
Although state-federal composition and administration may vary significantly by task force, members are usually cross-authorized state and federal
police officers. Like Weyker, state officers are typically deputized as Special U.S. Marshals to enforce
federal law, 20 while federal officers often operate under state statutes to enforce state law. 21 This dual role
allows task force members to select the state or federal laws that best suit their purposes. 22 The result is
often a lack of accountability for constitutional violations. 23
19 See, e.g., Violent Gang Task Forces, FBI.gov, https://
perma.cc/CWE8-F3AX (listing 171 gang task forces operating in
38 states, the District of Columbia, and Puerto Rico).
20 See Weichselbaum, supra note 17 (noting that U.S. Marshals deputized one-third of the Pensacola Police Department’s
161-officer force during the summer of 2019); Jonathan Levinson
& Ryan Haas, US Attorney says Portland Police Will Remain
Federal Deputies, Against Mayor’s Wishes, Ore. Pub. Broad.
(Sept. 30, 2020) (noting that “the U.S. Marshals Service federally
deputized 22 sheriff’s deputies and 56 members of the Portland
Police Bureau’s Rapid Response Team” during protests in Portland), https://perma.cc/UF5Z-6GRY.
21 See, e.g., Minn. Stat. § 626.8453(2) (“A qualified federal
law enforcement officer assigned to a special purpose task force
* * * shall possess the authority of the peace officers * * * .”);
Mich. Comp. Laws § 764.15d; Cal. Penal Code § 830.8.
22 See, e.g., Michael Maharrey, Local Cops Can Skirt State
Limits on Surveillance by Joining Federal Task Forces, Found.
for Econ. Educ. (May 7, 2018), https://perma.cc/L95N-UG3F.
23 See, e.g., Kade Crockford, Beyond Sanctuary: Local Strategies for Defending Civil Liberties, Century Found. (Mar. 21,
2018), https://perma.cc/7U7P-SXBE.
34
This case highlights several problems created by
the task force shell game and why it raises an important issue. While violations committed by officers
under color of state law can be pursued through a
statutory cause of action provided by Congress in Section 1983, violations committed by officers under color
of federal law are largely unavailable after Egbert.
It is no wonder then that the government fights for
task force members to avoid Section 1983 claims. If
officers cannot avoid accountability through some
form of immunity—e.g., the “unholy trinity” of qualified immunity, municipal immunity, or prosecutorial
immunity, see Wearry v. Foster, 33 F.4th 260, 278 (5th
Cir. 2022) (Ho, J., dubitante)—they can now avoid accountability by claiming federal authority.
As the circuit courts increasingly hold that state
officers act under the exclusive color of federal law
when they are cross-deputized as members of task
forces, the use of the two-page U.S. Marshal deputation form, see n.4, supra, will extinguish the liability
Congress intended to create in Section 1983. It already has in the First, Second, Sixth, and Eighth Circuits.
CONCLUSION
The Court should grant the petition.
35
Respectfully submitted,
PATRICK JAICOMO
Counsel of Record
ANYA BIDWELL
INSTITUTE FOR JUSTICE
901 N. Glebe Rd., Ste. 900
Arlington, VA 22203
(703) 682-9320
pjaicomo@ij.org
VICTORIA CLARK
INSTITUTE FOR JUSTICE
816 Congress Ave., Ste. 960
Austin, TX 78701
(512) 480-5936
Counsel for Petitioner
December 7, 2022.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.