Amicus Curiae Brief — Hamdi A. Mohamud, Petitioner v. Heather Weyker, St. Paul Police Officer

No. 25-760

IN THE

Supreme Court of the United States

HAMDI A. MOHAMUD,

Petitioner,

v.

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

BRIEF OF THE CATO INSTITUTE AS

AMICUS CURIAE SUPPORTING PETITIONER

FELICIA H. ELLSWORTH

SYDNEY E. DONOVAN

WILMER CUTLER PICKERING Counsel of Record

MICHAELA P. SEWALL

HALE AND DORR LLP

J

1225 17th Street, Suite 2600 EFFREY M. SOLLER

WILMER CUTLER PICKERING

Denver, CO 80202

HALE AND DORR LLP

MARLEY J. PETERS

60 State Street

ANDREW NELL

Boston, MA 02109

WILMER CUTLER PICKERING (617) 526-6000

HALE AND DORR LLP

felicia.ellsworth@wilmerhale.com

2100 Pennsylvania Ave. NW

Washington, DC 20037

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE............................... 1

INTRODUCTION .............................................................. 2

SUMMARY OF THE ARGUMENT ............................... 3

ARGUMENT ....................................................................... 6

I.

THE DECISION BELOW IS WRONG .............................. 7

A. The Decision Conflicts With The

Constitution’s Original Public Meaning ............. 7

B. Denying Bivens Relief Here Moves

The Law Further From The

Constitution’s Original Meaning ....................... 14

II. THE DECISION BELOW IS OF EXCEPTIONAL

IMPORTANCE AND WARRANTS THIS

COURT’S REVIEW ........................................................ 19

A. The Decision Perpetuates An

Entrenched Circuit Split.................................... 19

B. Joint State–Federal Task Forces

Present Unique Federalism Concerns

Warranting This Court’s Input ......................... 21

CONCLUSION ................................................................. 22

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Agostini v. Felton,

521 U.S. 203 (1997) ................................................. 5, 15

Ahmed v. Weyker,

984 F.3d 564 (8th Cir. 2020) .......... 2, 4, 5, 6, 10, 15, 19

Alexander v. Sandoval,

532 U.S. 275 (2001) ..................................................... 17

Annappareddy v. Pascale,

996 F.3d 120 (4th Cir. 2021) ...................................... 19

Arias v. Herzon,

150 F.4th 27 (1st Cir. 2025) ....................................... 20

Ashby v. White,

92 Eng. Rep. 126 (K.B. 1703) ................................ 8, 13

Bates v. Clark,

95 U.S. 204 (1877) ................................................... 6, 11

Bivens v. Six Unknown Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ... 1, 2, 6, 17

Boyd v. United States,

116 U.S. 616 (1886) ....................................................... 9

Buck v. Colbath,

70 U.S. (3 Wall.) 334 (1866) ....................................... 11

Cantú v. Moody,

933 F.3d 414 (5th Cir. 2019) ...................................... 19

Carey v. Curtis,

44 U.S. (3 How.) 236 (1845) ................................. 13, 18

iii

TABLE OF AUTHORITIES—Continued

Page

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) ...................................... 6

Cushing v. Laird,

107 U.S. 69 (1883) ....................................................... 13

Davis v. Passman,

442 U.S. 228 (1979) ....................................................... 4

District of Columbia v. Heller,

554 U.S. 570 (2008) ....................................................... 8

Edwards v. Gizzi,

107 F.4th 81 (2d Cir. 2024) ........................................ 20

Egbert v. Boule,

596 U.S. 482 (2022) ............................................... 14, 15

Elhady v. Unidentified CBP Agents,

18 F.4th 880 (6th Cir. 2021) ....................................... 20

Entick v. Carrington,

19 How. Tr. 1029 (C.P. 1765) ....................................... 9

Erie Railroad Company v. Tompkins,

304 U.S. 64 (1938) ....................................................... 16

Farah v. Weyker,

926 F.3d 492 (8th Cir. 2019) ............................ 2, 13, 20

Gamble v. United States,

587 U.S. 678 (2019) ..................................................... 16

Hernandez v. Mesa,

589 U.S. 93 (2020) ....................................................... 15

Hicks v. Ferreyra,

64 F.4th 156 (4th Cir. 2023) ....................................... 20

iv

TABLE OF AUTHORITIES—Continued

Page

Huckle v. Money,

95 Eng. Rep. 768 (C.P. 1763)....................................... 8

Hui v. Castaneda,

559 U.S. 799 (2010) ..................................................... 17

Jacobs v. Alam,

915 F.3d 1028 (6th Cir. 2019) .................................... 19

Little v. Barreme,

6 U.S. (2 Cranch) 170 (1804) .................................. 4, 12

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) ..................................................... 16

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .............................. 4, 6, 18

Mitchell v. Harmony,

54 U.S. (13 How.) 115 (1852) ..................................... 11

Murray v. Schooner Charming Betsey,

6 U.S. (2 Cranch) 64 (1804) .......................................... 4

New York v. United States,

505 U.S. 144 (1992) ..................................................... 21

Oliva v. Nivar,

973 F.3d 438 (5th Cir. 2020) ...................................... 19

Otis v. Bacon,

11 U.S. (7 Cranch) 589 (1813) .................................... 10

Philadelphia Company v. Stimson,

223 U.S. 605 (1912) ....................................................... 6

Rowland v. Matevousian,

121 F.4th 1237 (10th Cir. 2024) ................................. 20

v

TABLE OF AUTHORITIES—Continued

Page

Sands v. Knox,

7 U.S. (3 Cranch) 499 (1806) ...................................... 10

Sheikh v. DHS,

106 F.4th 918 (9th Cir. 2024) ..................................... 19

Sigalovskaya v. Braden,

149 F.4th 226 (2d Cir. 2025) ................................ 19, 20

Snowden v. Henning,

72 F.4th 237 (7th Cir. 2023) ....................................... 20

Tanzin v. Tanvir,

592 U.S. 43 (2020) ................................................... 4, 12

The Apollon,

22 U.S. (9 Wheat.) 362 (1824) .................. 11, 12, 17, 18

The Estrella,

17 U.S. (4 Wheat.) 298 (1819) .................................... 13

Tracy v. Swartwout,

35 U.S. (10 Pet.) 80 (1836) ......................................... 11

United States v. Bevans,

24 F. Cas. 1138 (C.C.D. Mass. 1816)

(No. 14,5890) ................................................................ 12

United States v. Lee,

106 U.S. 196 (1882) ................................................. 4, 18

United States v. Rahimi,

602 U.S. 680 (2024) ....................................................... 8

Wilkes v. Wood,

19 How. Tr. 1163 (C.P. 1763) ....................................... 9

Wise v. Withers,

7 U.S. (3 Cranch) 331 (1806) ...................................... 10

vi

TABLE OF AUTHORITIES—Continued

Page

Xi v. Haugen,

68 F.4th 824 (3d Cir. 2023) ........................................ 19

Yearsley v. W.A. Ross Construction Company,

309 U.S. 18 (1940) ......................................................... 6

Ziglar v. Abbasi,

582 U.S. 120 (2017) ......................... 5, 15, 16, 17, 19, 21

DOCKETED CASES

Case v. Montana, No. 24-624 (U.S.)................................ 14

Noem v. Perdomo, No. 25A169 (U.S.) .............................. 6

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Declaration of Independence (U.S. 1776)................. 3

U.S. Constitution

amend. IV ...................................................................... 8

art. V ............................................................................ 16

28 U.S.C. § 2679 ........................................................... 14, 16

42 U.S.C. § 1983 ........................................................... 1, 2, 6

Collection of Duties Act, 1 Stat. 29 (1789) ..................... 11

Judiciary Act of 1789, 1 Stat. 73 ...................................... 11

Collection of Duties Act, 1 Stat. 145 (1790) ................... 11

Act of Feb. 4, 1815, 3 Stat. 195......................................... 12

LEGISLATIVE MATERIALS

1 Annals of Cong. (1789) ................................................... 10

13 Annals of Cong. (1814) ................................................. 11

vii

TABLE OF AUTHORITIES—Continued

Page

H.R. Rep. No. 8-46 (1805), reprinted in

1 American State Papers: Naval Affairs

(Washington, Gales & Seaton 1834) ......................... 12

OTHER AUTHORITIES

Amar, Akhil Reed, Of Sovereignty and

Federalism, 96 Yale L.J. 1425 (1987) .................. 6, 14

Amar, Akhil Reed, The Words That Made Us:

America’s Constitutional Conservation,

1760–1840 (2021) ........................................................... 9

Baude, William, Kavanaugh on Halfway

Originalism, Reason Foundation: The

Volokh Conspiracy Blog (Oct. 20, 2022),

https://reason.com/volokh/2022/10/20/kavan

augh-on-halfway-originalism/ ................................... 17

3 Blackstone, William, Commentaries on the

Laws of England (1768) .............................................. 8

Dewan, Shaila, If the Police Lie, Should They

Be Held Liable? Often the Answer Is No,

N.Y. Times (Sept. 12, 2021),

https://www.nytimes.com/2021/09/12/us/fed

eral-police-immunity.html ........................................... 3

Elliot’s Debates on the Federal Constitution

(1836) ........................................................................ 9, 10

Engdahl, David E., Immunity and

Accountability for Positive Governmental

Wrongs, 44 U. Colo. L. Rev. 1 (1972) ....................... 12

viii

TABLE OF AUTHORITIES—Continued

Page

Essay by a Maryland Farmer No. 1 (Feb. 15,

1788), reprinted in 5 The Complete AntiFederalist 4 (Herbert J. Storing ed., 1981) .............. 9

Kagan, Elena, The Development and

Erosion of the American Exclusionary

Rule: A Study in Judicial Method,

Oxford University (1983),

https://tinyurl.com/mvhjp2s8 .................................... 16

Lawson, Gary, The Constitutional Case

Against Precedent, 17 Harv. J. L. & Pub.

Pol’y 23 (1994) ............................................................. 17

Letter from the Federal Farmer to the

Republican No. 16 (Jan. 20, 1788), reprinted

in 2 The Complete Anti-Federalist 196

(Herbert J. Storing ed., 1981) ..................................... 9

Pfander, James E. & Jonathan L. Hunt, Public

Wrongs and Private Bills: Indemnification

and Government Accountability in the

Early Republic, 85 N.Y.U. L. Rev. 1862

(2010) ............................................................................ 18

Ramsey, Michael, Don’t Fear Bivens,

The Originalism Blog (Nov. 12, 2019),

https://originalismblog.com/dont-fearbivensmichael-ramsey/ .............................................. 17

Sachs, Stephen, Constitutional Backdrops,

80 Geo. Wash. L. Rev. 1813 (2012) ........................... 13

Sachs, Stephen, Originalism as a Theory of Legal

Change, 38 Harv. J. L. & Pub. Pol’y 817 (2015) .......... 16

ix

TABLE OF AUTHORITIES—Continued

Page

3 Story, Joseph, Commentaries on the

Constitution of the United States

(2d ed. 1833) ................................................................. 14

2 Story, Joseph, Commentaries on the

Constitution of the United States

(3d ed. 1858) ................................................................. 13

The Federalist No. 78 (Hamilton) (Clinton

Rossiter ed., 1961) ...................................................... 18

1 Tocqueville, Alexis de, Democracy in

America (Eduardo Nolla ed., 1835) ......................... 11

Wimer, Andrew, If a Federal-State Task Force

Violates Your Rights, Can Anyone Be

Held Accountable?, Forbes (Nov. 5, 2020),

https://www.forbes.com/sites/instituteforju

stice/2020/11/05/if-a-federal-state-taskforce-violates-your-rights-can-anyone-beheld-accountable/ ........................................................ 21

Wood, Gordon S., The Creation of the

American Republic 1776–1787 (1969) ....................... 6

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public-policy research foundation founded in 1977 and dedicated to advancing the principles of individual liberty, free markets,

and limited government. Cato’s Project on Criminal Justice, founded in 1999, focuses on the scope of substantive

criminal liability, the proper role of law enforcement in

communities and society, the protection of constitutional

safeguards for criminal suspects and defendants, citizen

participation in the criminal justice system, and accountability for law enforcement.

Cato submits this brief to urge the Court to confirm

that victims of government wrongdoing have ways to

hold officers accountable for violations of their constitutional rights. The proliferation of joint state-federal task

forces risks a constitutional catch-22: cross-deputized

state officers may evade liability in either a state or federal capacity for indisputably unconstitutional conduct.

Under a now familiar two-step approach, state officers

use the guise of task-force designations to alchemize

state into federal action and then rely on the unavailability of federal remedies to shield their actions from judicial review altogether. Cato agrees with Petitioner that

she has stated a viable claim under 42 U.S.C. § 1983.

Should the Court disagree, we also explain why Petitioner should have a remedy under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971).

1

No counsel for a party authored this brief, and no entity or

person, other than amicus curiae, its members, and counsel, made a

monetary contribution to fund this brief. Counsel of record for the

parties received notice of amicus’s intent to file this brief at least 10

days prior to its due date.

2

INTRODUCTION

This case presents an egregious manifestation of unchecked and unconstitutional power in the hands of a

rogue law-enforcement officer. A local St. Paul, Minnesota police officer, Heather Weyker, claimed to have uncovered a vast interstate sex trafficking conspiracy,

which led to the indictment of thirty individuals. But no

such conspiracy existed. The entire scheme was based

on “lies, manipulate[d] witnesses, and falsifie[d] evidence.” Farah v. Weyker, 926 F.3d 492, 496 (8th Cir.

2019). One of those witnesses, Muna Abdulkadir, assaulted two girls, including the petitioner, Hamdi Mohamud, at knifepoint in an altercation unrelated to Weyker’s investigation. When Weyker caught wind of the

assault, she falsely informed officers on the scene that

Abdulkadir’s victims were attempting to intimidate a

federal witness to deter her cooperation. Weyker then

prepared a criminal complaint against the two girls in

which she “once again ‘fabricated facts,’ knowingly relayed false information, and withheld exculpatory facts.”

Ahmed v. Weyker, 984 F.3d 564, 566 (8th Cir. 2020).

Based on Weyker’s false testimony, Mohamud, a 16year-old girl, languished in prison for over two years for

a crime she did not commit. The government eventually

abandoned its case.

Following her release, Mohamud sued Weyker for

redress. But a divided panel of the Eighth Circuit held

that Weyker’s cross-deputized status meant she could

not be sued under 42 U.S.C. § 1983 or under Bivens v.

Six Unknown Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971). As a result, Mohamud was stripped

of over two years of her childhood without recompense,

while Weyker remains employed by the same police department—and was even promoted in the intervening

time after the Justice Department footed the burden of

3

her civil defense. See Dewan, If the Police Lie, Should

They Be Held Liable? Often the Answer Is No, N.Y.

Times (Sept. 12, 2021); C.A. Appellee Br. 38 (Sept. 13,

2024) (showing DOJ’s representation of Weyker).

The Eighth Circuit’s holding flies in the face of constitutional first principles. A central grievance of colonial America was England’s attempt to shield its officials

from judicial accountability. Under what became known

as the Intolerable Acts, England stripped Bostonians of

their right to have local juries hear cases of abuse committed by royal officers. The loss of a local judicial forum

was an animating grievance of American independence.

See The Declaration of Independence paras. 12, 16, 19

(U.S. 1776). Yet not even the British were so bold as to

declare that no court could hear claims against their

rights-violating officers, as the Eighth Circuit held below.

That holding conflicts with the Constitution’s original public meaning and this Court’s Bivens precedents.

It exacerbates an entrenched 5-2 circuit split on the

availability of Bivens for claims of false arrest based on

fabricated evidence. And it presents a question of exceptional importance warranting this Court’s review:

whether any judicial forum exists to remedy Fourth

Amendment violations committed by government officials. Should the decision below stand, any state officer

can enjoy blanket immunity through the mere incantation of federal authority. The Court should grant certiorari and reverse.

SUMMARY OF THE ARGUMENT

The decision below cannot be squared with the Constitution’s original public meaning or this Court’s precedents. It also deepens an entrenched, and growing,

4

circuit split of importance to the public and the broader

corpus juris.

First, the decision below is irreconcilable with the

Constitution’s original meaning. In a line of precedent

stretching back to Marbury and continuing through

Bivens, this Court has recognized that citizens must be

able to enforce their “constitutional rights … through

the courts.” Davis v. Passman, 442 U.S. 228, 241-242

(1979) (citing Marbury v. Madison, 5 U.S. (1 Cranch)

137, 163 (1803)). Beginning at common law and continuing well into the twentieth century, citizens enforced

their constitutional rights through damages suits

against rights-violating officers. See Tanzin v. Tanvir,

592 U.S. 43, 49 (2020) (collecting cases). That unbroken

practice was not simply a matter of prevailing public policy. The Fourth Amendment’s text, history, and tradition show that these suits were an essential feature of

Founding-era constitutional law. Bivens suits are the

lineal descendant of this longstanding constitutional

practice.

Contrary to that practice, the Eighth Circuit abdicated its constitutional role, citing deference to Congress as a justification. See Ahmed v. Weyker, 984 F.3d

564, 565, 570-571 (8th Cir. 2020). But that flips the separation of powers on its head. It is emphatically the duty

of “judicial tribunals” to safeguard “rights which have

been invaded by the officers of the government.” United

States v. Lee, 106 U.S. 196, 219 (1882). At the Founding,

courts imposed liability against any lawbreaking federal

officer, even those who mistakenly and in good faith exceeded the powers of their office. See, e.g., Little v.

Barreme, 6 U.S. (2 Cranch) 170, 179 (1804); Murray v.

Schooneer Charming Betsey, 6 U.S. (2 Cranch) 64, 124

(1804). Yet the Eighth Circuit’s decision, if allowed to

stand, would suggest that it is not the province of the

5

judiciary to remedy even the most naked transgression

of a clearly established constitutional right.

Second, the decision below contravenes this Court’s

precedents. Although the Court has narrowed Bivens in

recent years, it has made clear that Bivens is a “necessity” and of “continued force … in the search-and-seizure

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

That is because Bivens maintains a line of federal officer

accountability tracing back to the Founding. The Eighth

Circuit, however, held that Bivens is inapplicable unless

a case precisely “mirrors” every jot and tittle of the facts

alleged in the original case, misinterpreting decades of

this Court’s precedents designed to address officer misconduct. Ahmed, 984 F.3d at 568. That is not how vertical stare decisis works. Lower courts must “follow the

case which directly controls, leaving to this Court the

prerogative of overruling its own decisions.” Agostini v.

Felton, 521 U.S. 203, 237 (1997).

Finally, the Eighth Circuit’s unduly cramped reading of Bivens is indicative of broader disarray in the

lower courts warranting this Court’s review. The circuits are split on the availability of Bivens for claims of

false arrest based on fabricated evidence and at what

level of generality to analyze whether a case presents a

new Bivens context. Resolving that split is of exceptional importance. Citizens and officers alike face an untenable situation where the same wrong generates liability—or not—based on the accident of the circuit in

which the harm happens to occur. The proliferation of

joint state-federal task forces only exacerbates the need

for a uniform national rule, as more and more state officers can claim the mantle of federal actors.

That uniform rule should support a cause of action

against rights-violating officers. When the government

6

flouts “the Fourth Amendment … remedies should be

available in federal court.” Noem v. Perdomo, 606 U.S.

___, No. 25A169, slip op. at 9 (Sept. 8, 2025) (Kavanaugh,

J., concurring). And in cases such as this, where it is

“damages or nothing,” Bivens v. Six Unknown Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 409-410

(1971) (Harlan, J., concurring), the case for the Constitution’s original remedies could not be clearer.

ARGUMENT

Since the Founding, the United States has preserved its constitutional system of limited government

and individual liberty through a critical check: a robust

system authorizing civil liability for federal officers. Because this Court held that sovereign immunity precludes

suit against the government absent its consent, see Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-412 (1821),

courts have historically kept the government within its

lawful bounds by allowing individuals to sue executive

officers for damages individually, see Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1506-1507

(1987). Those officer suits were not contingent on a congressional permission slip. Cf. Ahmed, 984 F.3d 565. Instead, the Founders understood the judicial power to entail a corresponding judicial duty to enforce the Constitution. See Wood, The Creation of the American Republic 1776–1787, at 453-462 (1969); see also Marbury, 5 U.S.

at 176-177.

Congress’s enactment of 42 U.S.C. § 1983 to allow

suits against state officers who violate federal rights did

not diminish courts’ ability to remedy claims against federal officials violating those same rights. See, e.g., Bates

v. Clark, 95 U.S. 204, 205, 209 (1877); Philadelphia Co.

v. Stimson, 223 U.S. 605, 619-620 (1912); Yearsley v.

W.A. Ross Constr. Co., 309 U.S. 18, 21 (1940). Over time,

7

the underlying cause of action shifted from the common

law to the cause of action this Court recognized in

Bivens, but the constitutional protections were supposed to remain unchanged.

The decision below marks a full break with Bivens

and the law of the Founding. The Eighth Circuit read

Bivens so narrowly as to effectively foreclose citizens’

ability to vindicate their rights against federal officials.

It then compounded that error by misapplying § 1983 to

kneecap citizens’ rights against state officials. As the

facts of this case make plain, the government’s increasing practice of cross-deputizing state officers means the

decision’s blast radius is boundless. According to the

Eighth Circuit, there is no remedy for someone like Mohamud, a teenager wrongfully arrested and then imprisoned for two years of her youth. This Court should confirm that the Constitution is more than hortatory language when government officials are involved.

I.

THE DECISION BELOW IS WRONG

A. The Decision Conflicts With The Constitution’s Original Public Meaning

The Constitution’s original public meaning—demonstrated in its text, history, and tradition—requires a judicial forum to remedy violations of constitutional rights.

Fourth Amendment violations were the quintessential

Founding-era example of courts vindicating rights

through officer civil suits. As explained infra I.B.,

Bivens is the offspring of that practice and a central

means of sustaining the Constitution’s original design.

1. Text. The Constitution’s text confirms a constitutional guarantee of money damages against rights-violating officers. The Fourth Amendment provides that

“[t]he right of the people to be secure in their persons,

8

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S. Const.

amend. IV. The “very text” of the Fourth Amendment

“implicitly recognizes” that it “codified a pre-existing

right.” District of Columbia v. Heller, 554 U.S. 570, 592

(2008) (discussing the Second Amendment’s similar language). Interpreting the right therefore requires a look

to pre-constitutional history, which “elucidates how contemporaries understood the text.” United States v.

Rahimi, 602 U.S. 680, 738-739 (2024) (Barrett, J., concurring). That history makes clear that suing federal officers for money damages lies at the heart of the Fourth

Amendment.

At common law, the Crown could not be sued in its

own courts, so subjects would sue crown officers to safeguard their liberties, on the theory that the officer violating the subject’s rights had “deceived” the King. See

3 Blackstone, Commentaries on the Laws of England

255 (1768). Based on this legal fiction, courts treated the

official not as an agent of the sovereign but as a private

tortfeasor who was personally liable for his conduct.

Damages judgments against malfeasant officials were a

central backstop of English liberty, as they made “publick officers more careful” and ensured that Englishmen

had “a means to vindicate and maintain their rights.”

Ashby v. White, 92 Eng. Rep. 126, 135-137 (K.B. 1703).

Nowhere was this more apparent than in the law of

search and seizure. In one of the most famous events in

Anglo-American legal history, crown officers relied on

an unlawful general warrant to search the homes, papers, and effects of John Wilkes—a member of the parliamentary opposition—and his associates. The victims

brought a series of successful tort suits against the officers, who were ordered to pay damages, including punitive damages. See, e.g., Huckle v. Money, 95 Eng. Rep.

9

768 (C.P. 1763); Entick v. Carrington, 19 How. Tr. 1029

(C.P. 1765); Wilkes v. Wood, 19 How. Tr. 1153 (C.P.

1763). As this Court recognized, the Wilkes suits exemplified “the true and ultimate expression of constitutional law,” Boyd v. United States, 116 U.S. 616, 626-627

(1886), and were a formative aspect of the ratifying public’s understanding of the Fourth Amendment’s text, see

Amar, The Words That Made Us: America’s Constitutional Conservation, 1760–1840, at 70-71 (2021).

2. History. The Constitution’s ratification history

confirms that it guarantees a right to sue lawbreaking

officers. The topic of officer accountability was much discussed during the state ratifying conventions. Antifederalists warned that “essential rights,” such as the “right

to be secure from all unreasonable searches and seizures,” were excluded from the Constitution. Letter

from the Federal Farmer to the Republican No. 16 (Jan.

20, 1788), reprinted in 2 The Complete Anti-Federalist

196, 199-203 (Herbert J. Storing ed., 1981). They noted

that “English juries … give ruinous damages whenever

an officer” violated a fundamental right but warned that

American judges might protect their fellow federal officers. Essay by a Maryland Farmer No. 1 (Feb. 15, 1788),

reprinted in 5 The Complete Anti-Federalist 4, 13-14

(Herbert J. Storing ed., 1981).

Leading Federalists responded with repeated assurances that rights-violating officers could be sued for

damages. In the Virginia Convention, Edmund Randolph rebuffed fears of lawless federal officers by noting

that any citizen subject to the “grievous and oppressive”

general warrant could go to the “judiciar[y], and obtain

relief.” 3 Elliot’s Debates on the Federal Constitution

468 (1836). John Marshall similarly explained that if federal officers should commit an unlawful trespass, then

“[t]he injured man” could turn to a court “for redress,

10

and get it.” Id. at 554. In the North Carolina Convention, Richard Spaight declared it “very certain and clear

that, if any man was injured by an officer of the United

States, he could get redress by a suit at law.” 4 Elliot’s

Debates on the Federal Constitution 36-37 (1836). James

Iredell repeated Spaight’s assurance that “any officer

may be tried by a court … for common law offenses.” Id.

at 37. Archibald McClaine rose to express his disbelief

that federal officers would “oppress the people[,]” but

echoed his colleagues in explaining that the victims of

any such oppression “would have redress in the ordinary

courts of common law.” Id. at 47. When James Madison

later introduced a draft of the Bill of Rights on the floor

of the First Congress, he explained that it was to empower courts to become “the guardians of those rights.”

1 Annals of Cong. 439, 457 (1789).

3. Tradition. Early practice immediately following

ratification confirms what text and history make plain:

money damages are an essential remedy when federal

officials violate individual rights. Unlike the Eighth Circuit, Founding-era courts did not believe that “the decision lies with Congress” to “make the call about whether

a federal remedy is available” against a “rogue law-enforcement officer.” Ahmed, 984 F.3d at 565. The Constitution already settled that question. Courts, of their

own accord, could and repeatedly did impose damages

judgments against federal officials in the absence of an

affirmative authorization by Congress. Indeed, this

Court frequently sustained damages judgments against

federal officials.2

2

See, e.g., Wise v. Withers, 7 U.S. (3 Cranch) 331, 332, 337

(1806) (damages against collector of militia fines); Sands v. Knox, 7

U.S. (3 Cranch) 499, 499-500, 503 (1806) (damages against customs

collector for seizing a vessel and its cargo); Otis v. Bacon, 11 U.S. (7

11

The First Congress, in turn, legislated against the

backdrop of a presupposition of officer suits. Although

Congress never enacted a cause of action against federal

officials, it codified limited defenses for officers who

were sued, see Collection of Duties Act, § 27, 1 Stat. 29,

43-44 (1789), and apportioned civil liability between superiors and their subordinates, see Judiciary Act of 1789,

§§ 27-28, 1 Stat. 73, 87-88; Collection of Duties Act, § 8, 1

Stat. 145, 155 (1790). That is because Congress understood that damages claims would be available of their

own force. The government quickly came to rely on civil

suits by private citizens to “force [officers] to obey the

law” because “administrative hierarchy exist[ed] nowhere” in the nascent Republic. 1 Tocqueville, Democracy in America 121-122, 132-134 (Eduardo Nolla ed.,

1835). Indeed, suits against federal officers were so rampant that during the War of 1812, the Treasury Secretary warned Congress that customs officials were not

enforcing the embargo against England because of “the

terror which the officers now feel, of being exposed to

suits for damages, under the authority of … the courts

of law.” 13 Annals of Cong. 757-758 (1814). Yet even as

the British torched Washington, neither Congress nor

the courts considered exempting federal officialdom

Cranch) 589, 595 (1813) (damages against deputy customs collector);

The Apollon, 22 U.S. (9 Wheat.) 362, 367 (1824) (damages against

customs collector for seizure of a foreign vessel); Tracy v. Swartwout, 35 U.S. (10 Pet.) 80, 94 (1836) (damages against collector who

acted in “good faith; and under instructions from the treasury department”); Mitchell v. Harmony, 54 U.S. (13 How.) 115, 128-130

(1852) (damages against military officer for seizing goods for trade

in Mexico amidst the Mexican-American War); Buck v. Colbath, 70

U.S. (3 Wall.) 334, 347 (1866) (damages against federal marshal);

Bates, 95 U.S. at 205, 209 (damages against military officers who

followed federal order to seize whiskey, which exceeded statutory

authority).

12

from civil liability. Instead, Congress allowed officers to

remove their cases to federal court and supplemented

their income commensurate with the increased risk of

personal liability they faced. See Act of Feb. 4, 1815,

§§ 7-8, 3 Stat. 195, 197-199.

In the early Republic, state and federal courts imposed civil liability on public officers “with unprecedented vigor.” Engdahl, Immunity and Accountability

for Positive Governmental Wrongs, 44 U. Colo. L. Rev.

1, 14 (1972). Even in the most sympathetic of cases, this

Court explained that the judicial duty confined courts to

a single question: “whether the laws have been violated?” The Apollon, 22 U.S. (9 Wheat.) 362, 367 (1824).

If so, then “justice demands[] that the injured party

should receive a suitable redress,” regardless of the economic, diplomatic, or other policy implications. Id. Thus,

when a military officer relied in good faith on a presidential order he believed to be lawful—but which exceeded

the President’s authority—this Court, speaking through

Chief Justice Marshall, upheld the damages judgment.

See Barreme, 6 U.S. at 179. As Justice Story underscored, “not … even … the president of the United

States” could prevent redress for the victim of unlawful

government conduct. United States v. Bevans, 24 F.

Cas. 1138, 1139 (C.C.D. Mass. 1816) (No. 14,589). Or as

Congress explained in summarizing the Founding-era

law, even officers acting under “public instructions”

were not “legally excus[ed] … from the claim for damages and costs.” H.R. Rep. No. 8-46 (1805), reprinted in

1 American State Papers: Naval Affairs 138 (Washington, Gales & Seaton 1834).

These decisions were not outliers. In the nearly two

centuries following Independence, there was an unbroken tradition of awarding “money damages ‘payable by

the officer.’” Tanzin, 592 U.S. at 49. In an echo of their

13

English forebears, U.S. courts grounded their practice

in the twin aims of “preventing and redressing wrongful” conduct by federal officials. Cushing v. Laird, 107

U.S. 69, 76 (1883); see also The Estrella, 17 U.S. (4

Wheat.) 298, 308 (1819) (reasoning that public officials

will “be checked in a lawless career” by the liability they

face in “the courts of their own nation”); Ashby, 92 Eng.

Rep. at 135-137 (same).

The courts were not simply following tradition for

tradition’s sake. At the Founding, it was widely understood that damages actions against rights-violating federal officers were a constitutional backdrop from which

no branch was free to depart. See Sachs, Constitutional

Backdrops, 80 Geo. Wash. L. Rev. 1813, 1816-1818

(2012); 2 Story, Commentaries on the Constitution of the

United States §§ 1676-1677, at pp.508-509 (3d ed. 1858).

To deny citizens a judicial forum when federal officials

trample constitutional rights, these authorities held,

would be to “supersede the great guards of those rights

intended to be secured by the Constitution.” Carey v.

Curtis, 44 U.S. (3 How.) 236, 252-253 (1845) (Story, J.,

dissenting).

That is precisely what occurred here. Weyker “deliberately misle[d] another officer into arresting an innocent individual to protect a sham investigation.” Farah

v. Weyker, 926 F.3d 492, 503 (2019). Even the Eighth

Circuit acknowledged that the alleged facts plausibly

support “a constitutional violation” of a “right … [that]

was clearly established.” Id. Yet in contravention of the

Constitution’s original public meaning, it concluded that

no court could award suitable redress. The text, pre-ratification history, early practice, and longstanding tradition all speak with one voice: individuals are entitled to

a judicial forum in which they can sue federal officers

who violate their constitutional rights. The decision

14

below is irreconcilable with that unambiguous constitutional command.

B. Denying Bivens Relief Here Moves The Law

Further From The Constitution’s Original

Meaning

Bivens is the lineal descendant of the Founders’ law.

Historically, damages suits against federal officers were

brought using common law writs. See Amar, 96 Yale L.J.

at 1506-1507. In Bivens, this Court expanded the menu

of available remedies to include a federal cause of action

and Congress, in reliance on that decision, preempted

common law claims against federal officials in the Westfall Act, with a statutory carve-out for Bivens. See 28

U.S.C. § 2679(b)(1)-(2). In effect, the constitutional vehicle was transplanted from the ancient writs system to

Bivens, but nothing in the underlying claim—or the officer’s liability—changed from Founding-era practices.

“Since it was decided, Bivens has had no shortage of

detractors.” Egbert v. Boule, 596 U.S. 482, 501 (2022).

This Court has declined to extend Bivens’ holding to

“other alleged constitutional violations.” Id. at 486. But

the decision also has a clear-cut Founding-era pedigree.

“[T]he common law has … long provid[ed] that officers

generally enjoy the same legal privileges”—and liabilities—“as private citizens.” Case v. Montana, 607 U.S.

__, No. 24-624, slip op. at 3 (Jan. 14, 2026) (Gorsuch, J.,

concurring) (citing the Wilkes cases). As private citizens, officers were routinely sued for money damages to

enforce the Fourth Amendment. See id. (noting that

“the Fourth Amendment is … ‘the affirmance of a great

constitutional doctrine of the common law’”) (quoting 3

Story, Commentaries on the Constitution of the United

States § 1895, at p.748 (1833)). That is why this Court

has maintained that Bivens is applicable within a

15

heartland search-and-seizure case, like this one. See Abbasi, 582 U.S. at 134.

To resolve this case, the Court need only apply its

existing precedents. To the extent that more recent decisions could be read to have so narrowed Bivens as to

preclude relief in this case, that reading would be in conflict the Constitution’s original public meaning. Finally,

although the Court has attributed some separation-ofpowers concerns to Bivens’ reasoning, the modern precedent is a “necessity” to maintain the proper balance between the three branches. Abbasi, 582 U.S. at 134.

1. This case fits comfortably within this Court’s

Bivens precedents. Bivens and its progeny hold that an

action lies against federal officials for core Fourth

Amendment violations. As Judge Kelley noted below,

Mohamud’s “claim falls squarely within the cause of action recognized by Bivens itself.” Ahmed, 984 F.3d at

572 (Kelly, J., dissenting). One of Webster Bivens’ “core

contentions was that the officers did not have probable

cause when they arrested him,” and Mohamud also alleged “that Officer Weyker caused [her] to be arrested

without probable cause.” Id. If Bivens has any remaining force, it is in a case such as this.

Although the Court has held that the expansion of

Bivens is a “‘disfavored’ judicial activity,” Abbasi, 582

U.S. at 135, it has been equally emphatic that lower

courts may not take it upon themselves to contradict “a

precedent of this Court [that] has direct application in a

case,” Agostini, 521 U.S. at 237. And when squarely confronted with the opportunity to overrule Bivens, this

Court has thrice declined the invitation. See Abbasi, 582

U.S. at 134; Hernandez v. Mesa, 589 U.S. 93, 113-114

(2020); Egbert, 596 U.S. at 502. Instead, it has reiterated

that in the “search-and-seizure context,” Bivens has

16

“continued force” to “vindicate the Constitution.” Abbasi, 582 U.S. at 134. This case is not an extension of

Bivens but an application of it in its core search-and-seizure context.

2. This Court’s most recent Bivens precedent, Egbert, is not to the contrary, and should not be read to supersede the Constitution’s unambiguous meaning. Cf.

Gamble v. United States, 587 U.S. 678, 718-720 (2019)

(Thomas, J., concurring); Loper Bright Enters. v. Raimondo, 603 U.S. 369, 423 (2024) (Gorsuch, J., concurring). “Our law is still the Founders’ law, as it’s been

lawfully changed.” Sachs, Originalism as a Theory of

Legal Change, 38 Harv. J. L. & Pub. Pol’y 817, 838 (2015).

The Founders’ law required that individuals such as Mohamud have access to a judicial forum to vindicate their

constitutional rights. And there has been no lawful

change to the constitutional design since then—nor

could there be outside Article V. See U.S. Const. art. V.

To be sure, at the Founding, officer suits were

brought under the general common law, not under the

Constitution itself. But (1) this Court’s evisceration of

the general law in Erie Railroad Company v. Tompkins, 304 U.S. 64 (1938), (2) Congress’s preclusion of

state tort claims against federal officials in the Westfall

Act, see 28 U.S.C. § 2679(b)(1), and (3) this Court’s creation and retrenchment of the exclusionary rule, see Kagan, The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method, Oxford

Univ. (1983), have rendered Bivens the only viable pathway to relief.3 At worst, Bivens might be thought of as

3

Indeed, Congress preempted state common law in express reliance on the availability of Bivens. The Westfall Act exempts from

preemption claims against federal officials “brought for a violation

of the Constitution,” 28 U.S.C. § 2679(b)(2)(A), language this Court

17

a second-best alternative that pulls doctrine towards the

gravitational orbit of the Constitution’s original meaning. See Baude, Kavanaugh on Halfway Originalism,

Reason Foundation: The Volokh Conspiracy Blog (Oct.

20, 2022); Ramsey, Don’t Fear Bivens, The Originalism

Blog (Nov. 12, 2019).

3. Neglect of the Constitution’s original public

meaning has caused Bivens to be cast as a separation-ofpowers problem rather than as a separation-of-powers

solution. This Court has moved away from its prior approach to implied causes of action as encroaching on the

legislative power, see Alexander v. Sandoval, 532 U.S.

275, 286 (2001), and because Bivens relied on an implied

cause of action, see Bivens, 403 U.S. at 396, this Court

viewed the doctrine as raising a similar “separation-ofpowers …. question” of “who should decide … Congress

or the courts?” Abbasi, 582 U.S. at 135.

But that framing is premised on a fundamental misunderstanding. Weighing the relative policy merits of

money damages is a legislative judgment—it is simply

not a judgment that courts need ever make under

Bivens, as it is a decision ratified within the Constitution

itself. The “‘judicial Power’” “is fundamentally the

power to decide cases in accordance with law.” Lawson,

The Constitutional Case Against Precedent, 17 Harv. J.

L. & Pub. Pol’y 23, 26 (1994). In Bivens actions, courts

need only ask “whether the laws have been violated” by

the federal officer. The Apollon, 22 U.S. at 367. If so,

then the court must award “suitable redress,” i.e., “damages.” Id. at 366, 373-374. The collateral costs and benefits of those judgments, as Justice Story explained, are

“properly matters of state” “belong[ing] … to another

recognized as an “explicit exception for Bivens,” Hui v. Castaneda,

559 U.S. 799, 807 (2010).

18

department of the government.” Id. at 366-367. In other

words, courts have not just an ability but a duty to award

damages when federal officers violate constitutional

rights. See Pfander & Hunt, Public Wrongs and Private

Bills: Indemnification and Government Accountability

in the Early Republic, 85 N.Y.U. L. Rev. 1862, 1868-1870

(2010) (noting that Founding-era courts “addressed the

issue of legality and left Congress in charge of calibrating the incentives of government officials”).

Indeed, it is precisely because of the separation-ofpowers that courts have an obligation to impose liability

when federal officials transgress constitutional lines. A

central reason for creating independent courts was to

adjudicate “rights in controversy between [the citizens]

and the government” and to “give remedy when the citizen has been deprived of his [rights] … without lawful

authority.” Lee, 106 U.S. at 220-221. And far from courts

needing a congressional permission slip to authorize

such suits, it is Congress who lacks the constitutional authority to deny courts the ability to hear claims against

“officers [acting] under color of law, but without legal authority, and thus to deny [citizens] all remedy for an admitted wrong.” Carey, 44 U.S. at 253 (Story, J., dissenting). For if citizens are stripped of access to “the medium of courts,” then the Constitution’s “reservations of

particular rights … amount to nothing.” The Federalist

No. 78, at 466 (Hamilton) (Clinton Rossiter ed., 1961); see

also Marbury, 5 U.S. at 163 (warning that “the United

States” cannot be “a government of laws, and not of men

…. if the laws furnish no remedy for the violation of a

vested legal right”). This case is an ideal vehicle to move

doctrine back towards first principles by clarifying that

Bivens claims remain viable to vindicate the Fourth

Amendment.

19

II. THE DECISION BELOW IS OF EXCEPTIONAL

IMPORTANCE AND WARRANTS THIS COURT’S REVIEW

A. The Decision Perpetuates An Entrenched

Circuit Split

This case raises a clear circuit split over whether a

plaintiff can maintain a cause of action for a claim of false

arrest based on fabricated evidence. The Eighth Circuit,

joined by the Third, Fourth, Fifth, and Ninth Circuits,

erroneously holds that the answer is no. See Xi v.

Haugen, 68 F.4th 824, 834 (3d Cir. 2023); Annappareddy

v. Pascale, 996 F.3d 120, 136 (4th Cir. 2021); Cantú v.

Moody, 933 F.3d 414, 423 (5th Cir. 2019); Ahmed, 984

F.3d at 568-570; Sheikh v. DHS, 106 F.4th 918, 925 (9th

Cir. 2024). The Second Circuit, joined by the Sixth, has

correctly noted that such claims are not an expansion of

Bivens but a straightforward application of binding

precedent. See Sigalovskaya v. Braden, 149 F.4th 226,

237 (2d Cir. 2025) (Perez, J., concurring); id. at 238

(Lynch, J., dissenting); Jacobs v. Alam, 915 F.3d 1028,

1033 (6th Cir. 2019).

This circuit split is indicative of a broader methodological divide in the courts of appeal. The lower courts

are fractured on the correct level of generality for assessing whether the circumstances of a given case make

it a new context and thus an expansion of Bivens. Some

circuits, including the Eighth, have disregarded this

Court’s admonition that only “meaningful” differences

make the context new. Abbasi, 582 U.S. at 139. For example, the Fifth Circuit has concluded that Bivens only

remains for claims involving “manacling the plaintiff” “in

his home” “in front of his family” and “strip searching

him in violation of the Fourth Amendment,” with “[v]irtually everything else … a ‘new context.’” Oliva v.

Nivar, 973 F.3d 438, 442 (5th Cir. 2020). The Sixth has

20

held that “[t]he context is new if it differs in virtually any

way from the Bivens trilogy.” Elhady v. Unidentified

CBP Agents, 18 F.4th 880, 883 (6th Cir. 2021). The

Eighth asks whether “the facts and legal issues” “exactly mirror[]” Bivens. Farah, 926 F.3d at 498. And the

Tenth has gone so far as to declare Bivens “all but dead.”

Rowland v. Matevousian, 121 F.4th 1237, 1241-1242

(10th Cir. 2024).

Other circuits take a more holistic approach to the

new context inquiry. The First Circuit applies a “functional approach” that asks whether the “facts or legal issues” require “a reweighing” of “the policy balance”

struck in Bivens. Arias v. Herzon, 150 F.4th 27, 35 (1st

Cir. 2025). The Fourth looks to whether the “the same

[constitutional] principles” are at issue. Hicks v. Ferreyra, 64 F.4th 156, 167 (4th Cir. 2023). The Seventh emphasizes that because “a difference must be ‘meaningful’

… some degree of variation will not preclude a Bivens

remedy.” Snowden v. Henning, 72 F.4th 237, 243-244

(7th Cir. 2023).

These abstract debates on the level of generality

amount to enormous on-the-ground differences for constitutional doctrine, officer accountability, and individual liberty. Yet one circuit has been so fractured over

Bivens that it has been repeatedly unable to produce any

majority opinion. See Sigalovskaya, 149 F.4th at 233

(Lee, J., concurring); id. at 237 (Perez, J., concurring); id.

at 238 (Lynch, J., dissenting); Edwards v. Gizzi, 107

F.4th 81, 84-85 (2d Cir. 2024) (Park, J., concurring); id. at

87 (Robinson, J., concurring); id. at 89 (Parker, J., dissenting). The lower courts need guidance from this

Court to bring cohesion to the national caselaw. Given

the overwhelming originalist evidence that damages

remedies were meant to vindicate Fourth Amendment

rights against violations by federal officers, the Court

21

should reaffirm what its precedents already teach:

Bivens has “continued force” in the “search-and-seizure

context.” Abbasi, 582 U.S. at 134.

B. Joint State–Federal Task Forces Present

Unique Federalism Concerns Warranting This

Court’s Input

The proliferation of joint state-federal task forces

only heightens the need for doctrinal clarification. The

states and federal government routinely partner to work

towards shared objectives. This cooperative federalism

undergirds numerous federal statutory schemes and

programs. See, e.g., New York v. United States, 505 U.S.

144, 167-168 (1992). The latest iteration of cooperative

federalism exists in joint state-federal task forces, under

which state officers are cross-deputized as federal officers to enforce federal law. By some estimates, more than

one thousand state-federal task forces operate in all fifty

states. Wimer, If a Federal-State Task Force Violates

Your Rights, Can Anyone Be Held Accountable?,

Forbes (Nov. 5, 2020).

This budding form of state-federal cooperation

would harbor serious dangers if the Eighth Circuit’s decision below was allowed to stand. With the power to

cross-deputize, the government could circumvent Congress’s enactment of Section 1983 by imbuing state officers with the aura of federal power and, thus, federal immunity. See, e.g., Pet. 25-26 (citing cases where state officers paid from state coffers enforcing state law faced

no civil accountability because of their service on a joint

task force).

Absent reversal, the decision below threatens to

eviscerate cooperative federalism and individual liberty.

States will be put to the perilous choice of partnership

with the federal government or protection of their

22

citizenry. Individuals will be deprived of any judicial forum to redress patent violations of their constitutional

rights. And our Constitution will be left bereft of force

as its rights go unacknowledged and unenforced by unaccountable officers.

CONCLUSION

The Court should grant certiorari and reverse.

Respectfully submitted.

SYDNEY E. DONOVAN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1225 17th Street, Suite 2600

Denver, CO 80202

MARLEY J. PETERS

ANDREW NELL

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave. NW

Washington, DC 20037

JANUARY 2026

FELICIA H. ELLSWORTH

Counsel of Record

MICHAELA P. SEWALL

JEFFREY M. SOLLER

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

(617) 526-6000

felicia.ellsworth@wilmerhale.com