Petition for Writ of Certiorari — Hamdi A. Mohamud, Petitioner v. Heather Weyker, St. Paul Police Officer

Supreme Court briefDec 19, 2025

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No. _______

In The

Supreme Court of the United States

HAMDI MOHAMUD,

Petitioner,

HEATHER WEYKER, IN HER INDIVIDUAL CAPACITY AS A

ST. PAUL POLICE OFFICER,

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

Marie Miller

Dylan Moore

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.,

Ste. 900

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org

Anthony Sanders

INSTITUTE FOR JUSTICE

P.O. Box 315

Lindstrom, MN 55045

(703) 682-9320

Counsel for Petitioner

QUESTIONS PRESENTED

Section 1983 guarantees that “[e]very person” who

violates an individual’s constitutional rights “under

color of any statute, ordinance, custom, or usage, of

any State * * * shall be liable.” 42 U.S.C. 1983.

Respondent St. Paul Police Officer Heather Weyker framed Petitioner Hamdi Mohamud for a crime,

causing Mohamud (then a minor) to spend two years

in prison. At the time, Weyker was cross-deputized

with narrow federal authority, so Mohamud asserted

causes of action against her under both Section 1983

and Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971). The Eighth

Circuit recognized that Mohamud’s rights were

clearly established, but it held in 2020 that she may

not sue under Bivens. In its opinion below, the Eighth

Circuit held that Mohamud may not sue under Section 1983, either. In doing so, the court deepened a

circuit split over how to apply this Court’s state-action

doctrine and left Mohamud remediless.

The questions presented are:

1. Whether a local police officer wielding both

state and federal authority can act under color

of state law for purposes of 42 U.S.C. 1983.

2. If not, whether a local police officer acting with

federal authority is subject to a Bivens cause of

action for Fourth Amendment violations she

commits in the common and recurrent sphere

of domestic law enforcement.

RELATED PROCEEDINGS

U.S. District Court for the District of Minnesota:

Mohamud v. Weyker,

No. 17-CV-2069 (Sept. 18, 2018)

consolidated with:

Ahmed v. Weyker,

No. 17-CV-2070 (Sept. 18, 2018)

Mohamud v. Weyker,

No. 17-CV-2069 (Mar. 25, 2024)

U.S. Court of Appeals for the Eighth Circuit:

Ahmed v. Weyker,

No. 18-3461 (Dec. 23, 2020),

reh’g denied (Mar. 16, 2021)

consolidated with:

Mohamud v. Weyker,

No. 18-3471 (Dec. 23, 2020),

reh’g denied (Mar. 16, 2021)

Mohamud v. Weyker,

No. 24-1875 (Jul. 23, 2025),

reh’g denied (Sept. 30, 2025)

U.S. Supreme Court

Mohamud v. Weyker,

No. 21-187, pet. for cert. denied (Jun. 21, 2022),

reh’g denied (Aug. 22, 2022)

iii

TABLE OF CONTENTS

Page

Opinions Below .......................................................... 1

Jurisdiction................................................................. 1

Provisions Involved .................................................... 2

Introduction ................................................................ 3

Statement of the Case ................................................ 7

As a local law-enforcement official, St.

Paul Police Officer Heather Weyker fabricated a Minnesota sex-trafficking ring ........ 7

II.

Weyker continued working as a St. Paul

officer after gaining marginal federal authority .............................................................. 9

III. To protect her sham investigation, Weyker used her state authority to have

Hamdi Mohamud arrested on suspicion

of violating state law. .................................... 11

IV. The lower courts denied Weyker qualified immunity, found no Bivens cause

of action, and left Section 1983 on the table. .................................................................. 14

This Court declined to review the Eighth

Circuit’s interlocutory Bivens ruling after the Solicitor General urged the Court

to wait until now. .......................................... 15

VI. Mohamud’s

pre-discovery

evidence

proves Weyker used her state office to

have Mohamud arrested, but the lower

courts held Weyker’s narrow federal

authority eclipsed all state color. .................. 16

Reasons for Granting the Petition........................... 20

II.

The circuits are split over how to apply

this Court’s state-action cases to crossdeputized local police officers........................ 21

Three circuits consider the totality

of the circumstances to decide whether local police officers imbued

with federal authority act under

color of state law. ................................. 22

Three circuits hold that crossdeputization is the only fact that

matters. ................................................ 25

As this Court has explained, Section 1983 liability turns on the presence of state authority—not the

absence of other authority. .................. 28

The circuits are split over whether

Bivens remains available for Fourth

Amendment violations during routine,

domestic law enforcement. ............................ 32

III. In Egbert’s wake, the questions presented are exceptionally important. ................... 35

IV. This case is a good vehicle to address the

questions presented. ...................................... 35

Conclusion ................................................................ 38

TABLE OF APPENDICES

Page

Appendix A:

Opinion of the United States Court of Appeals

for the Eighth Circuit (Jul. 23, 2025) ...................... 1a

Appendix B:

Order of the United States District Court for

the District of Minnesota Granting Defendant’s

Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Mar. 25, 2024) ....... 11a

Appendix C:

Opinion of the United States Court of Appeals

for the Eighth Circuit (Dec. 23, 2020) ................... 41a

Appendix D:

Order of the United States District Court for

the District of Minnesota Denying Defendant’s

Motion to Dismiss (Sept. 18, 2018) ........................ 64a

Appendix E:

Order of the United States Court of Appeals for

the Eighth Circuit Denying Petition for Panel

and En Banc Rehearing (Sept. 30, 2025) .............. 78a

Appendix F:

Order of the United States Court of Appeals for

the Eighth Circuit Denying Petition for Panel

and En Banc Rehearing (Mar. 16, 2021) ............... 80a

Appendix G:

Judgment of the United States District Court

for the District of Minnesota (Mar. 26, 2024) ....... 82a

Appendix H:

Declaration Supporting Plaintiff’s Request for

Discovery Under Rule 56(d) (Jul. 17, 2023) .......... 84a

Appendix H-1:

Table of Exhibits to Declaration Supporting

Plaintiff’s Request for Discovery Under Rule

56(d) (Jul. 17, 2023) ............................................. 101a

Appendix H-2:

Exhibits 1–9 to Declaration Supporting Plaintiff’s Request for Discovery Under Rule 56(d)

(Jul. 17, 2023) ....................................................... 104a

1. Gerald D. Vick Human Trafficking Task

Force: Memorandum of Understanding

[Omitted as duplicative. See Pet. App.

268a]........................................................... 104a

2. Minneapolis Joint Terrorism Task

Force: Memorandum of Understanding

[Omitted as duplicative. See Pet. App.

276a]........................................................... 105a

3. Minnesota Cyber Crime Task Force:

Memorandum of Agreement, Memorandum of Understanding, and Standard

Operating Procedures [Omitted as duplicative. See Pet. App. 290a] ........................ 106a

vii

4. Gerald D. Vick Human Trafficking Task

Force: Budget and Proposal for Supplemental Funding ......................................... 107a

5. Saint Paul Police Department Incident

Report (Nov. 1, 2009)................................. 172a

6. Mara H. Gottfried, How 2 St. Paul cops

helped crack alleged sex-trafficking ring,

St. Paul Pioneer Press (Nov. 13, 2010) ..... 190a

7. James Walsh & David Chanen, Unlikely

pair pursue sex-ring case, Star Tribune

(Jan. 1, 2011) ............................................. 200a

8. St. Paul Police Department Records Request Email (Jun.1, 2023) ......................... 210a

9. United States v. Ahmed, 3:11-CR-132

(M.D. Tenn.), Dkt. 241: Excerpts of Trial

Transcript (Jul. 24, 2013).......................... 214a

Appendix I:

Second Amended Complaint (Jun. 5, 2023) ........ 240a

Appendix I-1:

Exhibits 1–3 accompanying Second Amended

Complaint (Jun. 5, 2023) ..................................... 268a

1. Gerald D. Vick Human Trafficking Task

Force: Memorandum of Understanding ... 268a

2. Minneapolis Joint Terrorism Task

Force: Memorandum of Understanding ... 276a

viii

3. Minnesota Cyber Crime Task Force:

Memorandum of Agreement, Memorandum of Understanding, and Standard

Operating Procedures ............................... 290a

Appendix J:

Amended Complaint (Sept. 20, 2017) .................. 365a

Appendix K:

Special Deputation Appointment of Heather L.

Weyker-Sanders (Aug. 24, 2010) ......................... 385a

Appendix L:

List of Cases Resulting from Respondent’s

Task-Force Investigation ..................................... 389a

TABLE OF AUTHORITIES

Page

Cases

Ahmed v. Weyker,

984 F.3d 564 (8th Cir. 2020)

................................................1, 6, 8, 12–15, 19, 26

Argo Dynamics, LLC v. United States,

2025 WL 934454 (S.D. Cal. Mar. 27, 2025) ....... 24

Arias v. Herzon,

150 F.4th 27 (1st Cir. 2025)................................ 34

Askew v. Bloemker,

548 F.2d 673 (7th Cir. 1976)......................... 22–25

Belbachir v. County of McHenry,

726 F.3d 975 (7th Cir. 2013)............................... 20

Big Cats of Serenity Springs, Inc. v. Rhodes,

843 F.3d 853 (10th Cir. 2016)............................. 20

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics,

403 U.S. 388 (1971) ............................................... 5

Brentwood Acad. v. Tennessee Secondary Sch.

Athletic Ass’n,

531 U.S. 288 (2001) ............................................. 29

Brownback v. King,

592 U.S. 209 (2021) ............................................. 19

Burton v. Wilmington Parking Auth.,

365 U.S. 715 (1961) ....................................... 29–30

Chambers v. Herrera,

78 F.4th 1100 (9th Cir. 2023) ............................. 33

Couden v. Duffy,

446 F.3d 483 (3d Cir. 2006) .......................... 22–23

Egbert v. Boule,

596 U.S. 482 (2022) ................................... 6, 32–33

Enriquez-Perdomo v. Newman,

149 F.4th 623 (6th Cir. 2025) ............................. 33

Evans v. McKay,

869 F.2d 1341 (9th Cir. 1989)............................. 20

Farah v. Weyker,

926 F.3d 492 (8th Cir. 2019)....................... 5–6, 15

Griffin v. Maryland,

378 U.S. 130 (1964) ................................... 6, 20, 29

Guerrero v. Scarazzini,

274 Fed. Appx. 11 (2d Cir. 2008) ........................ 25

Hernandez v. Causey,

124 F.4th 325 (5th Cir. 2024) ............................. 33

Hicks v. Ferreyra,

64 F.4th 156 (4th Cir. 2023) ............................... 34

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) ............................................. 29

Jakuttis v. Town of Dracut,

95 F.4th 22 (1st Cir. 2024)............................ 25–27

Johnson v. Orr,

780 F.2d 386 (3d Cir. 1986) .......................... 23–24

King v. United States,

917 F.3d 409 (6th Cir. 2019)..............19, 25–26, 35

Kletschka v. Driver,

411 F.2d 436 (2d Cir. 1969) ................................ 20

Lake Country Ests., Inc. v. Tahoe Reg’l

Plan. Agency,

440 U.S. 391 (1979) ................................... 4, 30–31

Lindke v. Freed,

601 U.S. 187 (2024) ....................3, 5, 20, 29–30, 34

Livers v. Schenck,

700 F.3d 340 (8th Cir. 2012)............................... 14

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) ..............................5, 18, 20, 28

Marsh v. Alabama,

326 U.S. 501 (1946) ............................................. 30

Maryland v. United States,

381 U.S. 41 (1965) ............................................... 31

McLeod v. United States,

2021 WL 5906373 (S.D. Ala. Dec. 14, 2021) ...... 22

Mohamud v. Weyker,

142 S. Ct. 2833 (2022)......................................... 16

Mohamud v. Weyker,

144 F.4th 1099 (8th Cir. 2025)

....................................................1, 6, 18–19, 25–26

Mohamud v. Weyker,

2018 WL 4469251 (D. Minn.

Sept. 18, 2018) .....................................1, 14–15, 27

Mohamud v. Weyker,

2024 WL 1255536 (D. Minn.

Mar. 25, 2024) ................................1, 11–13, 17–18

Murray v. Wal-Mart, Inc.,

874 F.2d 555 (8th Cir. 1989)............................... 20

xii

Noem v. Perdomo,

603 U.S. ____, 2025 WL 2585637

(Sept. 8, 2025) ........................................... 7, 21, 34

Pettiford v. City of Greensboro,

556 F. Supp. 2d 512 (M.D.N.C. 2008) ................ 22

Screws v. United States,

325 U.S. 91 (1945) ............................................... 29

Silva v. United States,

45 F.4th 1134 (10th Cir. 2022) ........................... 33

Snowden v. Henning,

72 F.4th 237 (7th Cir. 2023) ............................... 34

Thai v. County of Los Angeles,

127 F.4th 1254 (9th Cir. 2025) ..........22, 24, 26–27

United States v. Adan,

No. 3:10-CR-260 (M.D. Tenn.) .............................. 8

United States v. Fahra,

643 Fed. Appx. 480 (6th Cir. 2016) ................ 8, 13

West v. Atkins,

487 U.S. 42 (1988) ................................5, 20, 28, 30

Xi v. Haugen,

68 F.4th 824 (3d Cir. 2023)................................. 33

Yassin v. Weyker,

39 F.4th 1086 (8th Cir. 2022)

..................................................6, 11, 13, 16–17, 26

Ziglar v. Abbasi,

582 U.S. 120 (2017) ..............................6, 32–34, 36

Constitutional and Statutory Provisions

28 C.F.R. 0.112 ........................................................... 9

xiii

28 U.S.C. 1254(1) ....................................................... 1

42 U.S.C. 1983 ............................................ 2–4, 28, 34

U.S. Const. amend. IV ............................................... 2

Hamdi Mohamud petitions for a writ of certiorari

to review the Eighth Circuit’s judgment in this case.

OPINIONS BELOW

The Eighth Circuit’s opinion denying Mohamud a

cause of action under Section 1983, Pet. App. 1a, is

reported as Mohamud v. Weyker, 144 F.4th 1099 (8th

Cir. 2025). The district court’s opinion granting Weyker’s motion for summary judgment, denying Mohamud’s motion to amend, and dismissing the case,

Pet. App. 11a, is unreported but available as Mohamud v. Weyker, 2024 WL 1255536 (D. Minn. Mar.

25, 2024).

The Eighth Circuit’s interlocutory opinion denying

Mohamud a cause of action under Bivens, Pet. App.

41a, is reported as Ahmed v. Weyker, 984 F.3d 564

(8th Cir. 2020). The district court’s opinion denying

Weyker’s motion to dismiss and finding that she is not

entitled to qualified immunity, Pet. App. 64a, is unreported but available as Mohamud v. Weyker, 2018 WL

4469251 (D. Minn. Sept. 18, 2018).

JURISDICTION

The Eighth Circuit entered its opinion below on

July 23, 2025, and denied a petition for rehearing on

September 30. Mohamud timely files this petition and

invokes this Court’s jurisdiction under 28 U.S.C.

1254(1).

PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be

seized.

U.S. Const. amend. IV.

To enforce constitutional rights like those secured

by the Fourth Amendment, Congress passed the Civil

Rights Act of 1871. It provides:

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 . . . .

42 U.S.C. 1983.

INTRODUCTION

Through Section 1983, Congress guaranteed that

“[e]very person” who deprives someone of her rights

under “any” color of state law “shall be liable.” 42

U.S.C. 1983. In most cases, “state action is easy to

spot.” Lindke v. Freed, 601 U.S. 187, 195 (2024). This

is because Section 1983’s state-color requirement is

satisfied whenever the state “allow[s] its power to be

exercised by someone” who uses it to violate the Constitution. Id. at 196. And because certain state employees—like police officers—depend on state power

to do their jobs, “[c]ourts do not ordinarily pause to

consider whether § 1983 applies to” those officers’ actions. Id. at 195.

Despite Section 1983’s categorical language and

this Court’s opinions interpreting it, the circuits are

split over whether local police officers cross-deputized

with federal authority can act under state law. All circuits in this split profess consistency with this Court’s

state-action precedents: Each claims to look at the

facts to determine whether a cross-deputized local police officer exercised state authority to violate the

Constitution. In practice, however, no circuit is entirely faithful to this Court’s state-action cases, and

some circuits treat a single fact (cross-deputization)

as dispositive.

Three circuits (the Third, Seventh, and Ninth)

identify specific facts that guide the color-of-law analysis and consider those facts to determine whether a

cross-deputized officer’s conduct was more state or

federal in character. See Part I.A, infra. These circuits

accurately claim that they consider the totality of the

circumstances. Under this approach, a cross-deputized local police officer can act under color of state

law if, for example, the officer is paid by the state, is

supervised by state employees, or relies on her state

authority to violate the Constitution.

Three other circuits (the First, Sixth, and Eighth)

rule that a Section 1983 cause of action is never available when a cross-deputized officer’s unconstitutional

conduct has any tangential connection to her federal

duties. See Part I.B, infra. Like the totality-of-the-circumstances courts, these circuits claim to conduct a

fact-bound analysis. But unlike their sisters, these

circuits ultimately treat a single fact—the officer’s

federal deputization—as dispositive. Under this approach, it does not matter whether the officer reports

to a state superior, collects a check from the state, or

uses her position as a state officer to cause harm. Any

tie to federal power eclipses state color and renders

Section 1983 inapplicable.

While the Third, Seventh, and Ninth Circuits’ approach is preferable, neither side of this split is faithful to the text of Section 1983 or this Court’s stateaction doctrine. See Part I.C, infra. Section 1983 does

not impose liability on those who act under “exclusive

color of state law” or even “primary color of state

law”—it mandates that “[e]very person” who violates

the Constitution “under color of any” state law “shall

be liable.” 42 U.S.C. 1983 (emphasis added). As a result, this Court has recognized that Section 1983’s

text “must be given a liberal construction.” Lake

Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440

U.S. 391, 399–400 (1979). The statute comes into play

whenever an official’s actions are “fairly attributable

to the State.” Lindke, 601 U.S. at 198 (emphasis omitted) (quoting Lugar v. Edmondson Oil Co., 457 U.S.

922, 937 (1982)). And this requirement is satisfied

when, as here, a cross-deputized local law-enforcement officer “abuses the position given to him by the

State” to violate clearly established constitutional

rights. West v. Atkins, 487 U.S. 42, 50 (1988).

Before Respondent St. Paul Police Officer Heather

Weyker acquired any federal authority, she led a Minnesota investigation into a fabricated, Minnesotabased sex-trafficking ring. Weyker expanded her

phony investigation across state lines after the Minnesota U.S. Attorney told her she had a state case, not

a federal one. And later, Weyker used her St. Paul

credentials to protect an unreliable witness who came

under investigation for attacking Petitioner Hamdi

Mohamud and her friends with a knife in Minneapolis. Holding herself out as a local police officer, Weyker injected herself into the local investigation and

framed Mohamud and her friends for the Minnesota

crime of witness tampering. Mohamud spent more

than two years in prison before the charges against

her were dropped.

By the time Weyker framed Mohamud, Weyker

had been cross-deputized with limited federal authority. The Eighth Circuit held that this fact placed Weyker beyond all legal accountability. When Mohamud

and her friends sued Weyker under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971), and Section 1983, the Eighth Circuit (in a series of decisions) concluded that the girls

had no cause of action. The court recognized that Weyker could not claim qualified immunity. See Farah v.

Weyker, 926 F.3d 492, 503 (8th Cir. 2019). But it took

Bivens off the table because “no Supreme Court case

exactly mirrors the facts and legal issues presented

here.” Pet. App. 47a (cleaned up). And Section 1983

provided no alternative: Because Weyker was crossdeputized, her marginal federal authority overrode all

the state authority she used to frame Mohamud. Id.

at 6a–9a; see also Yassin v. Weyker, 39 F.4th

1086, 1090–1091 (8th Cir. 2022).

Taken together, these rulings deny an innocent

woman any constitutional cause of action against a local police officer who abused her state authority to violate the Fourth Amendment. This outcome is unjust

and inconsistent with the text of Section 1983. See,

e.g., Griffin v. Maryland, 378 U.S. 130, 135 (1964)

(finding state action even when off-duty deputy sheriff violated the Constitution working as a private security officer).

As the number of cross-deputized local officers

grows, lower courts need guidance on whether and

how these officers may be held accountable for violating the Constitution. The best way for this Court to

supply that guidance is by granting the first question

presented and answering it in the affirmative. Alternatively, the Court could grant both questions presented and settle the circuit split over whether a

Bivens remedy remains available in the “common and

recurrent sphere of [domestic] law enforcement.”

Ziglar v. Abbasi, 582 U.S. 120, 134 (2017). Though

some circuits hold that Ziglar still means what it

says, others interpret this Court’s decision in Egbert

v. Boule, 596 U.S. 482 (2022), as barring a Bivens

cause of action in virtually every instance, see Part II,

infra.

It is exceptionally important that this Court address these issues in Egbert’s wake. See Part III, infra. If neither Section 1983 nor Bivens provides plaintiffs like Mohamud a cause of action, cross-deputized

local police officers like Weyker are free to violate

clearly established constitutional rights with impunity. However the Court ultimately decides this case,

it should ensure that remedies are “available in federal court” when law-enforcement officers take actions that “the Fourth Amendment prohibits.” See

Noem v. Perdomo, 603 U.S. ____, 2025 WL 2585637,

at *5 (mem.) (Sept. 8, 2025) (Kavanaugh, J., concurring).

This case is a good vehicle to address these important issues. See Part IV, infra. No discovery has

been conducted, so no fact disputes cloud the record.

Nor is qualified immunity an issue; the lower courts

have already determined that Weyker is not entitled

to that defense. As a result, the state-color question is

dispositive for Mohamud’s Section 1983 claims, and

the continued existence of an implied constitutional

remedy is dispositive for her Bivens claims.

STATEMENT OF THE CASE

As a local law-enforcement official, St.

Paul Police Officer Heather Weyker fabricated a Minnesota sex-trafficking ring.

In 2008, Heather Weyker was a St. Paul police officer with no federal authority. That year, she initiated a doomed investigation into a fictitious crime

ring that resulted in criminal cases against 30 people—nearly all Minnesota residents (the “Adan investigation”1). See Pet. App. 42a; United States v. Fahra,

643 Fed. Appx. 480, 481–484 (6th Cir. 2016). None

was convicted, and reviewing courts noted Weyker’s

chronic dishonesty.2

Weyker led the Adan investigation through the

Gerald D. Vick Human Trafficking Task Force of Minnesota. The St. Paul Police Department was the task

force’s “lead agency.” Pet. App. 167a. And the Vick

Task Force Memorandum of Understanding explains

that the task force’s mission was to “combat * * * human trafficking when it appears in Minnesota.” Ibid.

To promote this state interest, Weyker and her supervisor, St. Paul Sergeant John Bandemer, received

support from two federal officers. Id. at 193a–194a.

In 2009, Weyker met a woman, Muna Abdulkadir,

whom Weyker began cultivating as a witness for the

Adan investigation. See Pet. App. 174a. Around the

same time, the Vick Task Force asked the Minnesota

U.S. Attorney’s Office to bring charges in the Adan

cases. The U.S. Attorney declined because the evidence “supported a state prosecution, but not a federal case.” Id. at 205a. Undeterred, Weyker continued

expanding her sham investigation—still working as a

1 See United States v. Adan, No. 3:10-CR-260 (M.D. Tenn.),

et al.

2 See, e.g., Fahra, 643 Fed. Appx. at 482 (“[T]he district court

caught Weyker lying to the grand jury and, later, lying during a

detention hearing * * * . Weyker also lied on an application * * * and endors[ed] the validity of [a] forged birth certificate.”).

St. Paul officer under the exclusive color of state law.

Ibid.

Weyker’s hoax investigation grew until, as she put

it in an interview, the Vick Task Force “required a lot

more resources.” Pet. App. 194a. In 2010, the Vick

Task Force began working with another group of state

and federal agencies: the Minneapolis Police Department, U.S. Department of Homeland Security, Tennessee Bureau of Investigation, and U.S. Secret Service. This inter-agency initiative was dubbed the “ad

hoc task force.”3 See id. at 258a.

II.

Weyker continued working as a St. Paul

officer after gaining marginal federal authority.

In August 2010, after the Vick Task Force and ad

hoc task force banded together for Weyker’s phony investigation, Weyker was cross-deputized as a Special

Deputy U.S. Marshal. Pet. App. 385a–388a. Weyker’s

cross-deputization depended on, and supplemented,

her authority under Minnesota law. Under federal

law, Weyker was eligible for cross-deputization only

because she was a local law-enforcement officer. 28

C.F.R. 0.112.

3 Despite the label “ad hoc task force,” the record suggests

that this initiative was nothing but a group of agencies and

agents informally working together. Whereas other task forces

appearing in the record had memoranda of understanding outlining governance for participating entities and officers, Pet.

App. 276a–364a, no such memorandum exists for the ad hoc task

force, see id. at 94a.

The federal authority Weyker gained was marginal. Her one-page Special Deputation Appointment

form granted her enumerated federal powers. The

form included six checkboxes that could grant specific

federal authority. Only one was checked, allowing

Weyker “[t]o seek and execute arrest and search warrants supporting a federal task force.”4 Pet. App.

386a.

Weyker’s cross-deputization did not create an employment relationship with the federal government.

Nor did it authorize her to do more than seek and execute warrants supporting the ad hoc task force. Pet.

App. 386a–388a.

After her cross-deputization, Weyker remained a

St. Paul officer and continued running the same stateled investigation she initiated years earlier. She continued to report to Sergeant Bandemer, her St. Paul

supervisor. And the St. Paul Police Department continued to pay her salary. Pet. App. 91a, 140a–141a,

192a, 194a.

The record confirms that every government official

involved in the ad hoc task force would have understood Weyker to exercise state authority. Mohamud

has uncovered two memoranda of understanding between the St. Paul Police Department and federal

law-enforcement agencies that governed similar

state-federal task forces. These memoranda describe

standard practice for task forces involving the St.

4 Weyker’s deputation form included a seventh checkbox that

clarified she was “[n]ot authorized to participate in Federal Drug

Investigations unless also deputized by DEA or FBI.” Pet. App.

387a.

Paul Police Department, and they explicitly recognize

that “[l]iability for violations of federal constitutional

law rests with the individual federal agent or officer

pursuant to * * * 42 U.S.C. Section 1983 for state and

local officers or cross-deputized federal officers.” Pet.

App. 282a; see also id. at 351a (similar). Nothing in

the record suggests that Weyker’s ad hoc task force

departed from this understanding of liability, under

which cross-deputized officers like Weyker can be

sued under Section 1983.

III.

To protect her sham investigation, Weyker used her state authority to have

Hamdi Mohamud arrested on suspicion of

violating state law.

Hamdi Mohamud had nothing to do with the Adan

investigation. She and her friends were “the most accidental of participants” in Weyker’s scheme. Yassin,

39 F.4th at 1088. In June 2011, the witness Weyker

had been cultivating for several years, Abdulkadir, attacked the girls with a knife. After the attack, the

girls called 911 for help. Abdulkadir fled and called

Weyker. She told Weyker that she had attacked Mohamud and her friends, was hiding in a neighbor’s

apartment, and feared she would be arrested. Pet.

App. 18a–19a.

Meanwhile, Minneapolis police officer Anthijuan

Beeks responded to the girls’ 911 call. When he arrived on the scene, Beeks regarded Mohamud and her

friends as the victims of a Minnesota crime committed

by Abdulkadir. Pet. App. 19a.

“Worried about the possibility of losing a witness,

Weyker sprang into action.” Pet. App. 43a. Using her

knowledge and resources as a St. Paul police officer,

she contacted Minneapolis police dispatch. By identifying herself as a St. Paul officer, Weyker was put in

touch with the officers on the scene. Beeks was informed—through local police channels—that he had

an urgent message on the computer in his patrol vehicle: “OFFICER HEATHER WEYKER 710 out of St.

Paul would like Officers to call her ASAP[.]” Id. at

20a.

Beeks immediately called Weyker. She fed him

lies, claiming she had “information and documentation” that Mohamud and her friends “had been actively seeking out” Abdulkadir and attempting to “intimidate her or cause bodily harm” for cooperating in

the Adan investigation. Pet. App. 20a, 33a. Holding

herself out as a St. Paul officer “on special assignment

with the FBI in Tennessee,” Weyker made similar untruthful statements to Minneapolis Police Sergeant

Gary Manty, who was also on the scene. Id. at 21a.

Weyker, in fact, “had no ‘information’ or ‘documentation’”; she just wanted to shield Abdulkadir from arrest. Pet. App. 43a. Weyker’s misrepresentations led

Beeks to arrest Mohamud and her friends for the Minnesota crime of witness tampering. Id. at 21a–22a.

Only by leveraging her position as a St. Paul police

officer was Weyker able to contact Beeks and Manty

and persuade them to flip the script of their investigation. Otherwise, Mohamud and her friends would

not have been arrested. Id. at 253a–254a.

Weyker then created a St. Paul police report and

emailed it to Manty. In the report, Weyker fabricated

facts, knowingly gave false information, and withheld

exculpatory facts—all to keep Mohamud and her

friends detained for crimes that Weyker knew were

unsupported by probable cause. Pet. App. 22a, 250a.

The next day, Weyker used the false and misleading information from her St. Paul police report to

swear out a federal criminal complaint and supporting affidavit. These documents accused the girls of

tampering with a federal witness and obstructing the

Adan investigation. Weyker’s affidavit also confirmed

that her investigation began and continued through

the Vick Task Force of Minnesota—the St. Paul-led

task force Weyker spearheaded long before gaining

any federal authority. Based on Weyker’s misleading

criminal complaint, Mohamud and her friends were

imprisoned and charged with retaliating against a

federal witness. Pet. App. 43a–44a, 243a, 254a.

Before the dismissal of all charges against her,

Mohamud—a minor—spent nearly 25 months incarcerated, facing a potential sentence of life in prison.

Pet. App. 44a, 255a. Meanwhile, a jury acquitted both

her friends. See Yassin, 39 F.4th at 1088; Pet. App.

44a. The Adan cases met a similar fate. “[P]lagued

with problems from the start,” only nine of the 30 people indicted were tried. Pet. App. 42a. Each was acquitted. Ibid. And after a “painstaking review of the

record,” the Sixth Circuit concluded that Weyker’s

tale “of sex trafficking and prostitution” was “likely a

fictitious story.” Fahra, 643 Fed. Appx. at 484.

IV.

The lower courts denied Weyker qualified

immunity, found no Bivens cause of action, and left Section 1983 on the table.

Mohamud sued Weyker in June 2017 “to hold [the]

rogue law-enforcement officer responsible for landing

[her] in jail through lies and manipulation.” Pet. App.

42a. Mohamud brought two Fourth Amendment

claims for damages: one under Section 1983 for Weyker’s actions under color of state law, and one under

Bivens for Weyker’s actions under color of federal law.

Id. at 379a–382a. Although this case has been pending for more than eight years, Weyker has not answered Mohamud’s complaint, and the parties have

not exchanged discovery.

In 2017, Weyker moved to dismiss Mohamud’s

complaint. She argued that probable cause existed to

arrest and prosecute Mohamud and her friends, that

Weyker is entitled to qualified immunity, and that no

cause of action exists against her under Section 1983

or Bivens. Pet. App. 65a.

The district court denied Weyker’s motion. Rejecting Weyker’s first two arguments, the court held that

Weyker was not entitled to qualified immunity because it is clearly established that “a seizure without

‘a truthful factual showing sufficient to constitute

probable cause’ violates the Fourth Amendment.” Pet.

App. 75a (quoting Livers v. Schenck, 700 F.3d 340,

357 (8th Cir. 2012)). Nothing in Beeks’s investigation,

“except the allegedly false information conveyed to

him by Weyker, led him to believe that * * * Mohamud had engaged in any criminal activity.” Id. at

76a. From there, the court concluded there was “no

need to decide” whether Section 1983 or Bivens supplied the cause of action for Mohamud’s claims because they could proceed regardless. Ibid. (cleaned

up).

Weyker filed an interlocutory appeal. On review,

the Eighth Circuit did not disturb the district court’s

qualified-immunity holding.5 It did, however, conclude that no cause of action was available under

Bivens because “no Supreme Court case exactly mirrors the facts and legal issues presented here.” Pet.

App. 47a (cleaned up). Still, the court explained that

“[j]ust because a Bivens remedy [was] off the table

d[id] not mean [Mohamud’s case was] over. If the district court determine[d] on remand that Weyker was

acting under color of state law,” Mohamud’s Section

1983 claim could proceed. Id. at 55a.

This Court declined to review the Eighth

Circuit’s interlocutory Bivens ruling after

the Solicitor General urged the Court to

wait until now.

Before litigating the Section 1983 issue on remand, Mohamud petitioned this Court for certiorari

on the Bivens issue. See Pet. for Cert., Mohamud v.

Weyker, 142 S. Ct. 2833 (2022) (No. 21-187). The U.S.

Solicitor General, representing Weyker, argued that

review of the Bivens question would be premature until the case reached its current posture:

5 See Farah, 926 F.3d at 503 (“[A] reasonable officer would

know that deliberately misleading another officer into arresting

an innocent individual to protect a sham investigation is unlawful[.]”).

If the district court finds that petitioner’s

Fourth Amendment claim cannot proceed under Section 1983, and if that determination is

upheld in any subsequent appeal, petitioner

will be able to raise her [Bivens] claim, together

with any other claims that may arise in those

subsequent proceedings, in a single petition for

a writ of certiorari.

BIO at 21, Mohamud v. Weyker, 142 S. Ct. 2833 (2022)

(No. 21-187).

This Court denied certiorari. Mohamud v. Weyker,

142 S. Ct. 2833 (2022) (mem.).

VI.

Mohamud’s

pre-discovery

evidence

proves Weyker used her state office to

have Mohamud arrested, but the lower

courts held Weyker’s narrow federal authority eclipsed all state color.

On remand, Mohamud asked the district court to

address whether Weyker was subject to liability under Section 1983. In an earlier case against Weyker

brought by one of Mohamud’s friends, Ifrah Yassin,

the Eighth Circuit ruled that a Section 1983 cause of

action was unavailable because—on the facts presented in that case—“[s]tate law had nothing to do

with ‘the nature and circumstances’ of Weyker’s conduct.” Yassin, 39 F.4th at 1090 (citation omitted).

Citing Yassin, Weyker moved to dismiss Mohamud’s complaint or, in the alternative, to grant

Weyker pre-discovery summary judgment. For her

part, Mohamud moved to amend her complaint to add

previously unknown evidence that showcases the

many ways Weyker used her state office to cause Mohamud’s arrest. See Pet. App. 14a, 30a–31a. Mohamud, for instance, sought to include the revelation

that Weyker acted to advance the mission of a task

force led by St. Paul—not the federal government:

Id. at 167a.6

Disregarding Mohamud’s new allegations and evidence, the district court denied her motion to amend

as futile. Without analysis, the court concluded that

Mohamud’s new allegations could not survive a motion to dismiss because there was no “actual or purported relationship between Weyker’s conduct and

her duties as a St. Paul police officer,” and “Mohamud’s assertion that Weyker acted under color of

both state and federal law is not well founded.” Pet.

App. 28a, 30a (cleaned up). Then, treating Weyker’s

6 Contra Yassin, 39 F.4th at 1087 (stating—without the ben-

efit of Mohamud’s new evidence—that Weyker served on a “federal task force”).

motion as one for summary judgment, the court summarily rejected Mohamud’s state-color arguments.7

Mohamud appealed, but the Eighth Circuit affirmed. Like the district court, the Eighth Circuit

largely disregarded Mohamud’s evidence tying Weyker’s conduct to her power and authority as a state

official. Although it claimed to conduct a “fact[-]

bound” analysis, Pet. App. 5a (quoting Lugar, 457

U.S. at 939), the court did not identify specific indicia

of federal authority or weigh them against specific indicia of state authority.

Instead, it brusquely concluded that “[s]tate law

had nothing to do with” Weyker’s unconstitutional

conduct. Pet. App. 8a (emphasis added) (citation omitted). But Mohamud explicitly alleged that Weyker

used her state credentials to inject herself into

Beeks’s investigation into the knife attack, and that

Mohamud would not have been arrested otherwise.

Id. 253a–254a. Indeed, Weyker’s federal deputization

could not empower her to meddle with Beeks’s investigation—she was federally authorized only to seek

and execute certain warrants. Id. at 386a–387a. Mohamud also alleged that, throughout Weyker’s time as

a cross-deputized officer, Weyker continued to report

to the same St. Paul supervisor who oversaw her work

on the Vick Task Force. Id. at 91a. The Eighth Circuit

nowhere considered how these facts—which other

7 These arguments included that Weyker used her position

as a state official to contact local officers at the scene of the knife

attack and cause Mohamud’s arrest, that Weyker exercised state

and federal authority simultaneously, and that the state

(through the St. Paul-led Vick Task Force) pervasively intertwined itself with Weyker’s federal work. See Pet. App. 34a–35a.

circuits would view as establishing a Section 1983

cause of action, see Part I.A, infra—impacted the

color-of-law analysis.

Only one fact mattered to the Eighth Circuit: Weyker’s cross-deputization. See Pet. App. 8a (explaining

that cross-deputized officers “carr[y] federal authority

and act[] under color of that authority rather than under any state authority” (quoting King v. United

States, 917 F.3d 409, 433 (6th Cir. 2019), rev’d on

other grounds sub nom. Brownback v. King, 592 U.S.

209 (2021)). Under Eighth Circuit law, when a local

law-enforcement officer exercises any relevant federal

authority (by taking an action tangentially related to

her federal duties, even if she lacks federal authority

to take the challenged action), federal color crowds

out all state color that may have existed otherwise—

leaving the officer beyond Section 1983’s reach. Ibid.

The Eighth Circuit’s treatment of cross-deputization as case-dispositive creates an atextual rule that

Section 1983 requires not only the presence of state

color but also the absence of federal color. Thus, although the court had already taken Bivens “off the table,” Pet. App. 55a, it concluded that Bivens was Mohamud’s “only option,” id. at 9a. Realistically, then,

Mohamud has no option; her rights have no remedies.

Two other circuits (the First and Sixth) share the

Eighth Circuit’s view. They hold that Section 1983 is

unavailable whenever a cross-deputized officer’s conduct has any relationship to her federal authority. On

the other side of the split, three circuits (the Third,

Seventh, and Ninth) examine the totality of the circumstances to determine whether an officer’s conduct

has more indicia of state authority than federal authority—if so, Section 1983 applies.

REASONS FOR GRANTING THE PETITION

The hallmark of the state-color inquiry is whether

an official’s conduct is “fairly attributable to the

State.” Lindke, 601 U.S. at 198 (emphasis omitted)

(quoting Lugar, 457 U.S. at 937). This requirement is

satisfied when an official “abuses the position given to

him by the State,” West, 487 U.S. at 50, or when an

individual “is possessed of state authority and purports to act under that authority”—even if he “might

have taken the same action had he acted in a [nonstate] capacity,” Griffin, 378 U.S. at 135 (citation

omitted); see also Lindke, 601 U.S. at 198–199 (state

color is absent only when the action is “in no way dependent on state authority” (citation omitted)). Typically, faced with situations where an official enjoys

multiple sources of authority, lower courts have no

trouble assessing the facts to determine whether this

standard has been met.8

But the courts are divided over how to apply this

Court’s state-action doctrine to cross-deputized local

police officers, who wield both state and federal

power. All circuits in this split claim to apply this

Court’s state-action doctrine, but some do so more

8 See, e.g., Evans v. McKay, 869 F.2d 1341, 1348 (9th Cir.

1989) (state and tribal authority); Murray v. Wal-Mart, Inc., 874

F.2d 555, 558–559 (8th Cir. 1989) (state and private authority);

Belbachir v. County of McHenry, 726 F.3d 975, 978 (7th Cir.

2013) (state and federal authority); see also Big Cats of Serenity

Springs, Inc. v. Rhodes, 843 F.3d 853, 870 (10th Cir. 2016) (state

and federal officers working together); Kletschka v. Driver, 411

F.2d 436, 448–449 (2d Cir. 1969) (same).

faithfully than others. Ultimately, no circuit fully appreciates Section 1983’s text or this Court’s cases interpreting it.

This case shows just how far from this Court’s

precedents some courts have strayed: The Eighth Circuit allowed a local police officer to evade accountability for clearly established constitutional violations

simply because she filled out a one-page federal deputation form.

This Court should resolve the split, instruct all circuits to apply Section 1983’s plain text, and close this

constitutional loophole. This case is a good vehicle to

do so. No discovery has changed hands, so there are

no factual disputes. Nor is qualified immunity an issue. Two questions of law are dispositive; each can be

resolved only by this Court. First, whether Weyker

acted under color of state law. Second, if Weyker acted

only under color of federal law, whether a constitutional cause of action remains available under Bivens.

Whichever angle the Court takes, a federal cause of

action should be available for Fourth Amendment violations like this one. Cf. Noem, 2025 WL 2585637, at

*5 (Kavanaugh, J., concurring).

The circuits are split over how to apply

this Court’s state-action cases to crossdeputized local police officers.

Three circuits (the Third, Seventh, and Ninth) apply a totality-of-the circumstances test to determine

whether an officer imbued with both state and federal

authority used her state authority to violate the Constitution. This approach roughly, though imperfectly,

tracks this Court’s precedents. See Part I.A, infra.

Three other circuits (the First, Sixth, and Eighth) employ a categorical rule: Whenever a cross-deputized

officer wields even minimal federal authority related

to her unconstitutional conduct, she cannot act under

color of state law.9 See Part I.B, infra.

No circuit in this split adequately adheres to this

Court’s color-of-law cases. See Part I.C, infra. But the

Eighth Circuit’s opinion below—and the opinions of

the two other circuits like it—depart substantially

from this Court’s state-action doctrine.

A. Three circuits consider the totality of

the circumstances to decide whether

local police officers imbued with federal authority act under color of state

law.

Under the fact-intensive inquiry that three circuits apply, task-force officers like Weyker can act under state or federal color of law. Couden v. Duffy, 446

F.3d 483 (3d Cir. 2006); Askew v. Bloemker, 548 F.2d

673 (7th Cir. 1976); Thai v. County of Los Angeles, 127

F.4th 1254 (9th Cir. 2025). The Third, Seventh, and

Ninth Circuits weigh the circumstances of a taskforce officer’s conduct to determine whether that

9 In circuits without controlling precedent, like the Fourth

and Eleventh, district courts have taken sides on the split. Compare, e.g., McLeod v. United States, 2021 WL 5906373, at *5–8

(S.D. Ala. Dec. 14, 2021) (rejecting officers’ argument that “task

force officers are always acting under color of federal law”), with

Pettiford v. City of Greensboro, 556 F. Supp. 2d 512, 534–535

(M.D.N.C. 2008) (“[C]ross-deputized local law enforcement officers avoid prosecution under section 1983 because they are not

acting under color of state law.”).

conduct is more state or more federal in character. If

the balance tips more toward state color, Section 1983

provides a cause of action.

The Third Circuit, for instance, considers whether

the officer is pursuing a state or federal objective and

whether the officer is supervised by state or federal

officials. In Couden v. Duffy, the court held that Delaware police officers working on a state-federal task

force acted under color of state law because the fugitive they arrested was wanted by local police and—as

here—the investigation was initiated locally. 446

F.3d at 489, 499 (explaining that the task-force officers “were conducting surveillance in an attempt to

capture a fugitive wanted by the New Castle County

Police Department, not by the federal government”).

Elsewhere, the Third Circuit has stressed that “[a]

crucial inquiry is whether the day-to-day operations

are supervised by the Federal or state government.”

Johnson v. Orr, 780 F.2d 386, 390 (3d Cir. 1986)

(cleaned up).

The Seventh Circuit takes a similarly holistic approach. Its analysis considers whether officers are

paid by the state or federal government, are supervised by state or federal employees, and have authority to take the challenged action under state or federal

law. In Askew v. Bloemker, the court assessed

whether St. Louis, Missouri, police officers serving on

a state-federal task force could be sued under Section

1983 for illegally raiding a home in Illinois. 548 F.2d

at 677–678. Although the court concluded that the officers were acting only under color of federal law, it

explained that this was because the officers were

“paid out of federal funds,” were “subject to the

immediate control of [federal] supervisors,” and had

no authority under Missouri law to raid a home in Illinois. Id. at 677. Because the officers lacked authority under Missouri law for their actions, their conduct

was “taken pursuant solely to federal authority[.]”

Ibid.

Finally, the Ninth Circuit agrees that courts

should “consider the totality of the circumstances” in

cases like this one. Thai, 127 F.4th at 1260. Like the

Seventh Circuit in Askew, the Ninth Circuit in Thai

v. County of Los Angeles determined that—on the

facts presented there—local officers working on a federally-controlled task force acted only under color of

federal law. Id. at 1261. But the court did not impose

a blanket rule; its analysis hinged on four facts:

(1) The task force was “implemented under federal

law,” (2) the local officers were directly supervised by

a federal agent, (3) the federal government reimbursed the officers’ salaries, and (4) the relevant conduct took place outside the local officers’ jurisdiction.

Ibid. Had the officers been “supervised by state employees” instead, the case likely would have come out

differently. Id. at 1262 (citing Orr, 780 F.2d at 390–

393); see also Argo Dynamics, LLC v. United States,

2025 WL 934454, at *4 (S.D. Cal. Mar. 27, 2025) (holding that discovery was needed to determine whether

“state and/or federal officials exerted oversight, management, or regulation of the joint task force”).

Had Mohamud brought her case in the Third, Seventh, or Ninth Circuits, she would have a cause of action under Section 1983.

B. Three circuits hold that cross-deputization is the only fact that matters.

Three other circuits, including the Eighth below,

treat federal deputization as dispositive. In these circuits, cross-deputization places state and local police

beyond the reach of Section 1983 whenever an officer’s federal duties somehow overlap with her state

authority. Pet. App. 7a–9a; Jakuttis v. Town of Dracut, 95 F.4th 22, 29–30 (1st Cir. 2024); King, 917 F.3d

at 433–434; see also Guerrero v. Scarazzini, 274 Fed.

Appx. 11, 12 n.1 (2d Cir. 2008) (summary order)

(“[B]ecause Scarazzini and McAllister were federally

deputized for their Task Force work, this claim was

properly brought * * * as a Bivens action.”).

The Sixth Circuit in King v. United States held

that a cross-deputized state officer categorically “carrie[s] federal authority and act[s] under color of that

authority rather than under any state authority he

may have had” otherwise. 917 F.3d at 433. There, a

cross-deputized Grand Rapids police detective beat

and arrested an innocent college student after mistaking him for a suspect wanted by the State of Michigan. Id. at 416–418. The Sixth Circuit ruled that, although the detective was not entitled to qualified immunity, id. at 432, Section 1983 offered no cause of

action because the detective acted under color of federal law, id. at 433. In the court’s view, it did not matter that the arrest happened in Grand Rapids (where

the detective worked as a state officer), that the suspect was wanted for state crimes, or that the detective

was paid by the state. Ibid. Contra Askew, 548 F.2d

at 677. Instead, the court ruled that the agent’s service on a federal task force controlled the analysis,

and the plaintiff had to proceed under Bivens.10 King,

917 F.3d at 434.

Citing King, the Eighth Circuit ruled below that

an officer’s use of state power is irrelevant if she also

wields relevant federal power. Pet. App. 8a–9a. Unlike in the Third, Seventh, and Ninth Circuits, in the

Eighth Circuit “[i]t [ ] makes little difference” whether

state or federal officials lead a task force or supervise

its cross-deputized officers. Id. at 7a. Contra, e.g.,

Thai, 127 F.4th at 1261 (stressing the importance of

federal supervision to federal color). As soon as federal authority enters the mix, no amount of state authority can render an officers’ actions attributable to

the state—even when she uses her “local practices” to

violate the Constitution. Pet. App. 9a (quoting Yassin,

39 F.4th at 1091).

The First Circuit, also citing King, has taken a

similar approach. In Jakuttis v. Town of Dracut, a

cross-deputized police officer retaliated against another cross-deputized officer for speaking out against

corruption within their local police department. 95

F.4th at 29–30. The court held that the retaliating officer acted under color of federal law alone. Ibid. Although the whistleblower’s allegations concerned two

purely local police officers—and although the officer

retaliated by having the whistleblower demoted

10 The Sixth Circuit issued King before this Court narrowed

the availability of Bivens in Egbert. As a result, the officer’s “potential liability [was] unchanged by whether Plaintiff’s claims

properly arise under Bivens or § 1983.” King, 917 F.3d at 433

n.10. But here, the question is dispositive; the Eighth Circuit has

already held that Weyker cannot be sued under Bivens. Pet. App.

55a.

within their local police department—the First Circuit concluded that the offending officer’s role on a

federal task force placed him beyond Section 1983’s

reach. Ibid. Contra Thai, 127 F.4th at 1261 (suggesting that constitutional violations in an officer’s local

jurisdiction point toward state color).

In the circuits that apply a totality-of-the-circumstances approach, Mohamud’s Section 1983 claim

would have proceeded to discovery. Weyker framed

Mohamud to protect the Adan investigation, which

Weyker spearheaded through the St. Paul-led Vick

Task Force of Minnesota. See Pet. App. 68a–69a,

167a. At the time, Weyker held herself out as a St.

Paul officer, was supervised by St. Paul Sergeant

Bandemer, and was paid by the St. Paul Police Department. Id. at. 91a, 140a–141a, 192a, 194a. Indeed,

Weyker could not have accomplished her unconstitutional scheme without leveraging her state credentials and knowledge of local policing to inject herself

into a local investigation and influence its outcome;

she lacked federal authority to have Mohamud arrested. Id. at 253a–254a, 386a–387a. But because the

Eighth Circuit treats cross-deputization as dispositive, Bivens was Mohamud’s only option—one the

court had already foreclosed.

C. As this Court has explained, Section

1983 liability turns on the presence of

state authority—not the absence of

other authority.

Although Mohamud’s Section 1983 claims would

have proceeded in certain circuits, neither side of this

split gives due consideration to Section 1983’s text or

this Court’s cases interpreting it. Section 1983 mandates that “[e]very person” who violates the Constitution “under color of any” state law “shall be liable.” 42

U.S.C. 1983. Recognizing this categorical command,

this Court’s cases leave no doubt that it is the presence

of state color—not the absence of other color—that

triggers the statute.

“It is firmly established that a defendant in a

§ 1983 suit acts under color of state law when he

abuses the position given to him by the State.” West,

487 U.S. at 49–50. Two factors guide the state-color

inquiry: “First, the deprivation must be caused by the

exercise of some right or privilege created by the

State * * * or by a person for whom the State is responsible.” Lugar, 457 U.S. at 937. “Second, the party

charged with the deprivation must be a person who

may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state

officials, or because his conduct is otherwise chargeable to the State.” Ibid.

As Lugar suggests, plaintiffs can establish state

color in many ways. State employment is usually dispositive. See, e.g., West, 487 U.S. at 49. Alternatively,

plaintiffs may show that the wrongdoer exercised

powers “traditionally exclusively reserved to the

state.” Jackson v. Metropolitan Edison Co., 419 U.S.

345, 352–353 (1974) (collecting cases). Plaintiffs may

show that the wrongdoer pervasively entwined herself with the state. See, e.g., Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288,

303 (2001) (state color when there is “largely overlapping identity” between state and non-state actors). Or

plaintiffs may show that the wrongdoer acted jointly

with state officials. See, e.g., Burton v. Wilmington

Parking Auth., 365 U.S. 715, 722 (1961) (state color

when the state or its officials play a “significant” role

in the deprivation).

Given the various ways to establish state action,

this Court has repeatedly held that state and local officials can act under color of state law even when they

simultaneously possess private or federal authority.

Private authority. Most of this Court’s cases discussing dual authority involve state and private

power. See Lindke, 601 U.S. at 196 (collecting cases).

In this context, the Court looks at the facts of each

case to determine whether the official “is possessed of

state authority and purports to act under that authority.” Griffin, 378 U.S. at 135. If so, Section 1983 provides a cause of action—even if the official “might

have taken the same action had he acted in a purely

private capacity[.].” Ibid. (citing Screws v. United

States, 325 U.S. 91 (1945) (plurality)). In Griffin, the

Court found that a deputy sheriff working as a private

security guard acted under color of state law when he

barred black patrons from entering an amusement

park. Ibid. In a recent decision interpreting Griffin,

the Court explained: “The State had [] allowed its

power to be exercised” by the security guard, so Section 1983 provided a cause of action. Lindke, 601 U.S.

at 196.

This Court has also held that state color exists

when entirely private parties work “in ‘close cooperation and coordination’” with the state. West, 487 U.S.

at 51. For example, the Court has found state color in

the actions of a private doctor who provided medical

treatment to state prisoners, a company town that

punished a person for distributing religious literature, and a private restaurant on public land that refused to serve black patrons. Id. at 54; Marsh v. Alabama, 326 U.S. 501, 505–506 (1946); Burton, 365 U.S.

at 722–726.

Federal authority. This Court’s precedents also instruct that state color does not disappear when parallel federal authority appears. In Lake Country, for instance, Lake Tahoe property owners brought claims

under Section 1983 and Bivens against officers of the

Tahoe Regional Planning Agency—a body created by

congressional compact. 440 U.S. at 393–394. The officers argued that congressional involvement federalized their actions, precluding Section 1983 liability.

Id. at 396. The Ninth Circuit agreed. Ibid.

This Court saw things differently. Rejecting the

Ninth Circuit’s conclusion “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,’” Lake Country, 440 U.S.

at 399, this Court looked at the facts to see if state

action was present, id. at 399–400. It was: The agency

could not exist without state agreement. Id. at 399.

The states could modify or withdraw from the compact without federal permission. Ibid. And although

the officers needed federal approval to act under any

authority, the officers “necessarily * * * served the

interests of the [states and counties] that appointed

them” when discharging their duties. Ibid. The states’

involvement and interest in the actions of the

agency’s officers subjected them to Section 1983—

even though the federal government played an essential role in the agency’s existence.11 Id. at 400.

In short, Lake Country teaches that state action

requires only the presence of state color—not the absence of federal color. See 440 U.S. at 400 (noting “no

need to address the question whether there is an implied remedy” under Bivens because color of state law

permitted claims under Section 1983). Thus, even the

circuits that do not treat federal deputization as dispositive take too crabbed a view of this Court’s stateaction doctrine. The circuits are split across a line

that this Court’s precedents already foreclose.

11 The Court’s Federal Tort Claims Act cases are also instruc-

tive. In Maryland v. United States, 381 U.S. 41 (1965), for example, the Court found that National Guard civilian caretakers

were state actors even though they were “paid with federal funds

and must observe federal requirements in order to maintain

their positions.” Id. at 48. That’s because the caretakers were

employed and supervised by the state. Id. at 52–53.

II.

The circuits are split over whether Bivens

remains available for Fourth Amendment

violations during routine, domestic law

enforcement.

This Court should grant the first question presented and reverse the decision below. If it grants the

first question presented and affirms the decision below, this Court should also address the second question presented and determine whether a Bivens cause

of action remains available in the “common and recurrent sphere of [domestic] law enforcement.”12 Ziglar,

582 U.S. at 134.

Three circuits—the First, Fourth, and Seventh—

continue to heed this Court’s instruction in Ziglar

that a Bivens cause of action remains available in

cases involving domestic policing. Most other circuits

hold that this Court’s decision in Egbert rendered

Bivens a dead letter.

This split exists because of Egbert. There, this

Court clarified the limits of implied causes of action

against federal officials. 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[,]’” a Bivens cause of action is unavailable. Egbert, 596 U.S. at 496 (quoting Ziglar, 582

U.S. at 136). On Egbert’s facts, there was reason to

think that Congress—not the courts—was better

suited for the task: The case arose out of a Border Patrol agent’s conduct mere steps away from the U.S.12 If the Court is not interested in the first question pre-

sented, it should leave the second question presented for another

day.

Canada border. Id. at 493–495. Thus, the Court concluded that “a Bivens cause of action may not lie

where * * * national security is at issue.” Id. at 494.

But Egbert did not disturb the Court’s earlier reasoning in Ziglar concerning “the continued force, or

even the necessity, of Bivens in the search-and-seizure context in which it arose.” Ziglar, 582 U.S. at

134. If the Court’s explanation of Bivens in Ziglar is

still good law, an implied cause of action should exist

in the “common and recurrent sphere of law enforcement” when, as here, no national-security concerns

are present. Ibid.

The circuits are divided over whether the Court’s

statement in Ziglar still applies. After Egbert, most

circuits hold that “expanding Bivens is not just ‘a disfavored judicial activity,’ * * * it is an action that is

impermissible in virtually all circumstances.” Silva v.

United States, 45 F.4th 1134, 1140 (10th Cir. 2022);

see also, e.g., Xi v. Haugen, 68 F.4th 824, 833 (3d Cir.

2023). And aside from the three “narrowly defined”

fact patterns in which this Court has found Bivens to

apply, “virtually everything else is a new context.”

Hernandez v. Causey, 124 F.4th 325, 333 (5th Cir.

2024) (cleaned up); see also, e.g., Chambers v. Herrera, 78 F.4th 1100, 1104 (9th Cir. 2023); EnriquezPerdomo v. Newman, 149 F.4th 623, 632 (6th Cir.

2025) (“The context is new if it differs in virtually any

way from the Bivens trilogy.” (citation omitted)).

Three circuits—the First, Fourth, and Seventh—

hold that Egbert did not go so far. In line with Ziglar,

these courts continue to recognize a Bivens cause of

action in the context of routine, domestic policing.

Hicks v. Ferreyra, 64 F.4th 156, 166 (4th Cir. 2023)

(allowing Bivens claims against U.S. Park Police officers who seized a federal agent during two traffic

stops); Arias v. Herzon, 150 F.4th 27, 49–50 (1st Cir.

2025) (allowing Bivens claims against DEA agent who

arrested a plaintiff outside his home with a warrant);

Snowden v. Henning, 72 F.4th 237, 245–247 (7th Cir.

2023) (same).

If this Court endorses the Eighth Circuit’s position

that cross-deputized officers act only under color of

federal law, the Court should also settle the split over

Bivens’s continued viability in the “common and recurrent sphere of [domestic] law enforcement.” Ziglar,

582 U.S. at 134. After all, this was the question Mohamud asked the Court to resolve before Egbert was

decided, and the Solicitor General’s primary objection

was that Section 1983 may provide a cause of action,

instead. BIO at 21, Mohamud v. Weyker, 142 S. Ct.

2833 (2022) (No. 21-187).

By its plain text, Section 1983 does supply a cause

of action in cases like this one, where a local law-enforcement officer leverages her state authority to violate Fourth Amendment rights. 42 U.S.C. 1983 (imposing liability against “[e]very person” who violates

the Constitution under “any” state color); Lindke, 601

U.S. at 198–199 (to escape state color, an action must

“in no way depend[] on state authority”). But even if

Mohamud is wrong about Section 1983, she must still

have some way to vindicate her rights in federal court.

Cf. Noem, 2025 WL 2585637, at *5 (Kavanaugh, J.,

concurring). Otherwise, those rights are unenforceable and illusory; their abusers will remain unaccountable and able to operate above the law.

III.

In Egbert’s wake, the questions presented

are exceptionally important.

Before this Court decided Egbert, the state-color

question at the heart of this case was largely academic. It usually did not matter whether a plaintiff’s

Fourth Amendment claim arose under Bivens or Section 1983. See, e.g., King, 917 F.3d at 433 n.10. But

now, that question is critically important. Most courts

are unwilling to extend Bivens beyond its precise

facts, even when doing so would not implicate the concerns this Court expressed in Egbert. See Part II, supra. As a result, a plaintiff’s constitutional claims

against a cross-deputized local law-enforcement officer will often turn on whether the officer acted under

color of state law.

Given this state of play, the Court’s resolution of

this case will determine whether clearly established

Fourth Amendment violations like this one have any

remedy at all. Under the text of Section 1983 and this

Court’s decisions interpreting it, a remedy should be

available. See Part I.C, supra. But as this case shows,

whether such constitutional remedies actually exist is

an open question. This Court’s guidance is sorely

needed to clear away the confusion.

IV.

This case is a good vehicle to address the

questions presented.

This case is a good vehicle to address both questions presented. No discovery has been exchanged, so

the operative facts are undisputed: Weyker, a St. Paul

police officer with specific federal responsibilities, leveraged her state authority (by acting outside her

enumerated federal powers) to inject herself into a

Minneapolis investigation, lie to other local police officers, and have Mohamud arrested on suspicion of violating Minnesota law. She did so to protect a witness

in a state-federal task-force investigation led by the

St. Paul Police Department. And throughout it all,

Weyker was supervised and paid by the St. Paul Police Department. Yet because Weyker filled out a onepage deputization form (a form she could fill out only

because she was a state officer), the lower court ruled

that her actions were beyond Section 1983’s reach.

Applying these undisputed facts to the relevant

law is straightforward and dispositive. Weyker has already been denied qualified immunity, so the only obstacle to discovery is the Eighth Circuit’s conclusion

that Mohamud has no constitutional cause of action.

Only this Court can determine whether the Eighth

Circuit was wrong to foreclose any cause of action to

remedy the violation of Mohamud’s clearly established rights.

The Court has two options to right the ship:

(1) Rule that Weyker acted under color of state law,

or (2) reaffirm “the continued force, or even the necessity, of Bivens” in cases like this one. Ziglar, 582 U.S.

at 134. Neither option requires a heavy lift. On the

first question presented, the Court’s prior state-action

cases can guide the analysis. Lake Country, for instance, not only stresses that Section 1983 must be

interpreted liberally, but also explains that federal involvement does not wash away state color. Griffin

similarly teaches that state color persists even when

an official could have taken the same action in another capacity. And Jackson, Brentwood Academy,

and Burton show that even private entities can act

under color of state law when they use the state’s resources, work jointly with the state, or become entangled in the state’s affairs. See Part I.C, supra.

On the second question presented, this Court need

only consider whether Bivens still provides a cause of

action in the “search and seizure context” the Court

recognized in Ziglar. Again, the Court need not resolve this question if it finds that Mohamud has a

cause of action against Weyker for her actions taken

under color of state law. But if the Court suspects that

Section 1983 provides no avenue for relief, it should

also consider the Bivens issue to ensure that the violation of Mohamud’s clearly established Fourth

Amendment rights have a remedy in federal court.

CONCLUSION

This Court should grant the petition and confirm

that cross-deputized state and local law-enforcement

officers can be held accountable for violating innocent

individuals’ clearly established Fourth Amendment

rights.

Respectfully submitted on December 19, 2025,

Patrick Jaicomo

Counsel of Record

Anya Bidwell

Marie Miller

Dylan Moore

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.,

Ste. 900

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org

Anthony Sanders

INSTITUTE FOR JUSTICE

P.O. Box 315

Lindstrom, MN 55045

(703) 682-9320

Counsel for Petitioner

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.