Ahmed v. Weyker

• Citation: 984 F.3d 564
• Decision Date: 23 December 2020
• Docket Number: No. 18-3461, No. 18-3471,18-3461
• Parties: Hawo O. AHMED, Plaintiff - Appellee v. Heather WEYKER, in her individual capacity as a St. Paul Police Officer, Defendant - Appellant Hamdi A. Mohamud, Plaintiff - Appellee v. Heather Weyker, in her individual capacity as a St. Paul Police Officer, Defendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

984 F.3d 564

Hawo O. AHMED, Plaintiff - Appellee

v.Heather WEYKER, in her individual capacity as a St. Paul Police Officer, Defendant - Appellant

Hamdi A. Mohamud, Plaintiff - Appellee

v.Heather Weyker, in her individual capacity as a St. Paul Police Officer, Defendant - Appellant

No. 18-3461

No. 18-3471

United States Court of Appeals, Eighth Circuit.

Submitted: June 18, 2020

Filed: December 23, 2020

Rehearing and Rehearing En Banc Denied March 16, 2021

Counsel who presented argument on behalf of the appellant was Edward Himmelfarb, of Washington, DC. The following attorney(s) appeared on the appellant brief; Glenn S. Greene, of Washington, DC, David G. Cutler, of Washington, DC, Paul C. Quast, of Washington, DC, and Barbara L. Herwig of Washington, DC.

Counsel who presented argument on behalf of the appellee was Andrew Phillips Muller, of Minneapolis, MN. The following attorney(s) appeared on the appellee brief; John A. Klassen, of Minneapolis, MN.

Before KELLY, ERICKSON, and STRAS, Circuit Judges.

STRAS, Circuit Judge.

The plaintiffs are trying to hold a rogue law-enforcement officer responsible for landing them in jail through lies and manipulation. But for us, a more fundamental question is at stake: who gets to make the call about whether a federal remedy is available? As we recently held, the decision lies with Congress, not us, so we vacate the district court's ruling. See Farah v. Weyker , 926 F.3d 492 (8th Cir. 2019).

I.

This appeal is another chapter in the aftermath of an investigation into an alleged interstate sex-trafficking scheme that was plagued with problems from the start. Of the thirty people who were indicted, United States v. Adan , 913 F. Supp. 2d 555, 558–59 (M.D. Tenn. 2012), only nine were ultimately tried, United States v. Fahra , 643 F. App'x 480, 483 (6th Cir. 2016), and each was acquitted, id. at 484. Since then, numerous civil-rights complaints have been filed against St. Paul Police Officer Heather Weyker for her conduct during the investigation.

A.

Two of those complaints were filed by Hawo Ahmed and Hamdi Mohamud. They, along with their friend Ifrah Yassin, were attacked one evening at an apartment building in Minneapolis. Their attacker was Muna Abdulkadir, a witness for the government in the sex-trafficking case.

During the incident, Abdulkadir "smash[ed]" Ahmed's windshield and "struck" Yassin, all while "brandishing [a] knife." Following the attack, Ahmed and Mohamud called 911, and Abdulkadir made a call of her own to Weyker. Worried about the possibility of losing a witness, Weyker sprang into action.

She first contacted Minneapolis Police Officer Anthijuan Beeks, who responded to the 911 call. Weyker told him that she had "information and documentation" that Ahmed, Mohamud, and Yassin "had been actively seeking out Abdulkadir" in an effort "to intimidate" her for agreeing to cooperate in a federal investigation.

Abdulkadir was indeed a federal witness, but everything else Weyker said was "untrue." She had no " ‘information’ or ‘documentation.’ " Rather, she just wanted to "shield[ ] Abdulkadir from arrest" to "further incentiv[ize] ... her" continued participation in the investigation. The plan worked. Officer Beeks arrested Ahmed, Mohamud, and Yassin "on suspicion of tampering with a federal witness," see 18 U.S.C. § 1513(b), based "on Weyker's intentional misrepresentations."

Weyker did not stop there. The next day, she prepared a criminal complaint and a sworn affidavit. In doing so, she once again "fabricated facts, knowingly relayed false information, and withheld exculpatory facts, all with the intention that [the three women] would continue [to be] detained for crimes [for] which she knew there [was] no actual probable cause or arguable probable cause."

These actions were not without consequences. Mohamud, a minor at the time, spent just short of 25 months in federal custody, with a "small portion" of it on supervised release. Ahmed gave birth during the more than 25 months she spent in custody. Eventually, the government dismissed the case against Mohamud, and a jury acquitted Ahmed.

After their release, both women sued Weyker in her individual capacity on one overarching false-arrest theory. See U.S. Const. amend. IV ; Franks v. Delaware , 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ; Small v. McCrystal , 708 F.3d 997, 1006 (8th Cir. 2013). Due to Weyker's dual status, they pleaded two causes of action against her: one as a St. Paul police officer, see 42 U.S.C. § 1983, and another as a deputized federal agent, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

Weyker asked the district court to dismiss both claims. See Fed. R. Civ. P. 12(b)(6). One reason was qualified immunity: the requirement that any right she may have violated had to be clearly established. See Morgan v. Robinson , 920 F.3d 521, 523 (8th Cir. 2019) (en banc). The other was based on the limited availability of a cause of action against federal officers. See Bivens , 403 U.S. at 397, 91 S.Ct. 1999. The district court allowed both claims to move forward, concluding both that qualified immunity was unavailable and that the plaintiffs had a cause of action against Weyker.¹

B.

Just last year, we decided a nearly identical case that also involved Weyker. See Farah , 926 F.3d 492. Five of the plaintiffs had been charged and detained as suspected participants in the sex-trafficking scheme. Id. at 496–97. Some were acquitted following a trial, and the government dropped the charges against the others. Id. at 496. All, however, accused Weyker of "exaggerating and inventing facts in reports[;] hiding [exculpatory] evidence"; manipulating witnesses; and "deceiv[ing] prosecutors, the grand jury, and other investigators" along the way. Id. at 496–97. Like Ahmed and Mohamud, they sought relief under both Bivens and section 1983. Id. at 497. We held that, if Weyker was acting as a federal officer at the time, no cause of action was available. Id. at 502. We then remanded for consideration of whether the plaintiffs could proceed under section 1983. Id. at 502–03.

Yassin was the final plaintiff in the case. See id. We never decided whether an implied cause of action was available to her because Weyker never "meaningfully briefed" the issue. Id. at 503. Today, Weyker asks us to answer the question that we left open in Farah .

II.

We now address this "threshold question": whether an implied cause of action is available to Ahmed and Mohamud under the Constitution itself, more commonly known as a " Bivens action." Hernandez v. Mesa , ––– U.S. ––––, 140 S. Ct. 735, 742–43, 206 L.Ed.2d 29 (2020) ; Farah , 926 F.3d at 497 ; see Bivens , 403 U.S. at 397, 91 S.Ct. 1999. Answering it calls for "a two-step inquiry," Hernandez , 140 S. Ct. at 743, over which our review is de novo, Farah , 926 F.3d at 497. At the motion-to-dismiss stage, we assume that all factual allegations in their complaints are true. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A.

"On only three occasions has the Supreme Court [recognized] a cause of action under Bivens ." Farah , 926 F.3d at 497 ; see Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) ; Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) ; Bivens , 403 U.S. 388, 91 S.Ct. 1999. Expanding Bivens is, according to the Supreme Court, "now a ‘disfavored’ judicial activity." Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1857, 198 L.Ed.2d 290 (2017) (quoting Iqbal , 556 U.S. at 675, 129 S.Ct. 1937 ); see also Hernandez , 140 S. Ct. at 743 ("[F]or almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens ."). The reason is that the separation of powers generally vests the power to create new causes of action in Congress, not us. See, e.g. , Hernandez , 140 S. Ct. at 742 ; Abbasi , 137 S. Ct. at 1857.

With this presumption against creating new Bivens actions in mind, Neb. Beef, Ltd. v. Greening , 398 F.3d 1080, 1084 (8th Cir. 2005), our analysis has two steps. Under step one, if a case "present[s] one of the three Bivens claims the [Supreme] Court has approved in the past," it "may proceed." Farah , 926 F.3d at 498 (internal quotation marks omitted). If it does not, then we go on to the next step. Id.

At step two, the question is whether "any special factors counsel hesitation before implying a new cause of action." Id. (internal quotation marks and brackets omitted). If there is "reason to pause before applying Bivens in a new context or to a new class of defendants[,] we [must] reject the request." Hernandez , 140 S. Ct. at 743.

B.

Just as we concluded in Farah , "[n]o Supreme Court case exactly mirrors the facts and legal issues presented here." 926 F.3d at 498. Neither Carlson nor Davis is a match, which leaves Bivens as the only possibility. See Carlson , 446 U.S. at 16–18, 16 n.1, 100 S.Ct. 1468 (allowing a cruel-and-unusual-punishment claim to proceed after prison officials fatally mishandled an inmate's serious asthmatic condition); Davis , 442 U.S. at 235–36, 243–44, 99 S.Ct. 2264 (recognizing a cause of action for a sex-discrimination claim under the Fifth Amendment).

1.

The claims in Bivens arose out of a warrantless search and an illegal arrest. 403 U.S. at 389, 91 S.Ct. 1999. Specifically, federal law-enforcement officers had "threatened to arrest [Bivens's] entire family" as they shackled him; "searched [his] apartment from stem to stern"; and after booking and interrogating him, "subjected [him] to a visual strip search." Id. ; see Abbasi , 137 S. Ct. at 1860 (describing the case as "a claim against FBI agents for handcuffing a man in his own home without a warrant"). Under those circumstances, the Supreme Court held that he had "a cause of action [against the officers] under the Fourth Amendment" and that "money damages" were potentially available "for any injuries he ha[d] suffered."...