For years, St. Paul police officer Heather Weyker was swamped. She gathered evidence, cultivated witnesses, filled out the police reports, testified under oath—all in connection with an interstate sex trafficking ring run by Somali refugees. But perhaps most impressive is that she did all that while fabricating the same ring she was investigating, which resulted in 30 indictments, 9 trials, and 0 convictions.
Hamdi Mohamud, then a 16-year-old refugee from Somalia, found herself caught up in that scheme in 2011, when one of Weyker's witnesses, Muna Abdulkadir, tried to attack her and her friends at knifepoint. Mohamud called the police, and Weyker intervened—on behalf of Abdulkadir. She arrested Mohamud and her friends for allegedly tampering with a federal witness, and Mohamud subsequently spent two years in jail before the trumped-up charges were dismissed.
While Mohamud lost those two years of her life, Weyker has not paid any price—not in spite of her position, but because of it. Since the officer conducted her investigation as part of a federal task force, she is entitled to absolute immunity and cannot be sued, the U.S. Court of Appeals for the 8th Circuit ruled last year.
It's not because the "sex trafficking" investigation—which consisted of Weyker conjuring fake information, editing police reports, fabricating evidence, and lying under oath, among other things—was legitimate. On the contrary, the court says it was "plagued with problems from the start" and notes that Weyker employed "lies and manipulation" to put people behind bars. Legally speaking, none of that matters.
What does matter is a line of Supreme Court jurisprudence that has made suing a rights-violating federal officer almost out of the question. Had Weyker acted in her capacity as a state or local cop, Mohamud would have been permitted to bring her claim before a jury of her peers. Yet the most powerful officers are held to the lowest standard of accountability.
Mohamud hopes to change that standard by asking the Supreme Court to hear her case, which she made official last week.
The problem here isn't qualified immunity, the doctrine that shields police officers and other state actors from federal civil suits unless the way the government violated your rights has been litigated almost exactly in a prior court precedent. That's an onerous standard to meet. It has, for example, protected two police officers who allegedly stole $225,000 while executing a search warrant, because no prior court ruling had said stealing in those circumstances is unconstitutional. The legal principle has been at the center of criminal justice reform efforts over the last year.
But Mohamud cleared that hurdle. The United States District Court for the District of Minnesota ruled that Weyker's actions so clearly made a mockery of the Constitution that she could not skirt the suit. The 8th Circuit then overturned that decision on appeal, citing Weyker's temporary federal badge, while in the same breath acknowledging the depravity of her actions.
"Qualified immunity makes it very, very difficult to sue government officials," says Patrick Jaicomo, an attorney at the Institute for Justice, the libertarian public interest law firm representing Mohamud. "This makes it impossible."
There's a Supreme Court decision that should, in theory, give Mohamud the avenue to redress she needs. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), the high court allowed a victim to go before a jury after federal cops conducted a drug raid on his apartment without a warrant and later strip-searched him at the courthouse.
But since then the Court has undermined its own decision in almost comical ways. In 2017, the justices ruled in Ziglar v. Abbasi that lower courts should pinpoint "special factors counseling hesitation" when considering suits against federal cops. In practice, that has meant just about whatever a judge can cook up.
Yet even Abbasi notes that Bivens should be applied robustly for Fourth Amendment claims, and Mohamud's suit rests on the Fourth Amendment. That has been lost on the 8th Circuit.
"Bivens is actually a great decision," says Anya Bidwell, another attorney for Mohamud. "It does provide a cause of action for a violation of Fourth Amendment rights. We want Bivens to be interpreted robustly and allow individuals to seek damages for violations of constitutional rights."
Whether or not the Supreme Court will clarify its oscillating guidance remains to be seen. But last year the justices may have given a hint about where they're leaning when they unanimously ruled that a group of Muslim men should have the right to sue a group of federal cops who violated their religious freedom rights. Jaicomo distills Justice Clarence Thomas' opinion in that case down to its core: "He [essentially] says the availability of damages against federal officers is as old as the Republic itself."
A decade after wrongly losing the end of her teenage years in jail, Mohamud has not yet been able to make use of that lever against the perpetrator, who is still employed by the St. Paul Police Department. "It simply makes no sense that the Fourth Amendment applies with less rigor for someone who happens to work for the federal government," says Bidwell. "This is unsustainable. It just makes no sense."