Eighth Circuit Refuses to Extend Bivens to False Arrest by Deputized Federal Officer
This case law update was written by Michael J. Sgarlat, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.
Muna Abdulkadir was a witness for the government in a federal sex-trafficking case. In that case, thirty individuals were charged and detained as suspected participants in a sex-trafficking scheme. Of the thirty individuals, only nine were tried, and all were acquitted.
In a separate event, Abdulkadir attacked Hawo Ahmed, Hamdi Mohamud, and Ifrah Yassin one evening in a Minneapolis apartment building. During the incident, Abdulkadir smashed Ahmed’s windshield, struck Yassin, and brandished a knife. After the attack, Ahmed and Mohamud called 911 and reported Abdulkadir’s actions. Abdulkadir also made a call. She called Officer Weyker.
Worried about losing a witness in the sex-trafficking case, Officer Weyker contacted Minneapolis Police Officer Anthijuan Beeks, who responded to Ahmed and Mohamud’s 911 call, and told him that she had “information and documentation” that Ahmed, Mohamud, and Yassin actively sought out Abdulkadir “to intimidate” her for agreeing to cooperate in a federal investigation. Based on this information, Officer Beeks arrested Ahmed, Mohamud, and Yassin “on suspicion of tampering with a federal witness.”
The next day, Officer Weyker prepared a criminal complaint and a sworn affidavit. As it turned out, Officer Weyker misrepresented the information that she conveyed to Officer Beeks, and the information in the criminal complaint and affidavit. And as a result of these misrepresentations, Mohamud and Ahmed spent over 25 months in federal custody. Mohamud was a minor at the time, and Ahmed was pregnant and gave birth while in custody. Eventually, the government dismissed Mohamud’s case, and a jury acquitted Ahmed.
After their release, Mohamud and Ahmed sued Officer Weyker on a false-arrest theory under the Fourth Amendment. They pleaded two causes of action against Officer Weyker, one as a St. Paul police officer under 42 U.S.C. § 1983, and another as a deputized federal agent under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics.
Officer Weyker moved to dismiss Mohamud’s and Ahmed’s claims, arguing they should be dismissed on qualified immunity, and that a Bivens cause of action was unavailable here. The district court allowed the claims to move forward. Officer Weyker appealed the district court decision to the U.S. Court of Appeals for the Eighth Circuit.
This was not the first time Officer Weyker was accused of such conduct. Indeed, several individuals charged and detained as a part of the sex-trafficking investigation filed civil rights complaints against Officer Weyker for her conduct during that investigation. That case, Farah v. Weyker, also made it to the U.S. Court of Appeals for the Eighth Circuit one year ago. However, in Farah, Weyker did not ask the court to consider the issue on appeal here, whether Mohamud and Ahmed had an implied cause of action against Officer Weyker as a deputized federal officer under the Constitution for their false arrest.
The court of appeals stated that the answer calls for a “two-step inquiry.” For the first step, if a case falls within one of the few previously recognized Bivens claims, it may proceed. If not, it moves onto the next step. At step two, the question for the court is whether there are any “special factors” that “counsel hesitation before implying a new cause of action.”
As described by the court of appeals, the Supreme Court has only recognized a cause of action under Bivens on three occasions. Here, the court of appeals found Bivens itself to be the only case in its progeny that had any similarity at all, and dismissed the other two cases in which the Supreme Court has extended the implied cause of action. Ultimately, the court of appeals found the case at issue to be “meaningfully” different from Bivens.
Thus, the court of appeals turned to second step of its inquiry, whether an implied cause of action is available in the new context of this case. One factor in which the court of appeals placed significant weight was the cost to the government of permitting a new context here. The court explained that a jury would need to determine what Officer Weyker knew, what she did not know, and her state of mind at the time she produced the information to procure the arrests, and that there are “substantial costs” associated with litigating such issues. The court found that Congress is better equipped to make such determinations.
Also, the court of appeals described that there were other remedies available to address the plaintiffs’ injuries. The court noted that the Hyde Amendment, codified at 18 U.S.C. § 30006A, allows courts to award attorney fees to criminal defendants who prevail against “vexatious,” “frivolous,” or “bad faith” positions taken by government. Additionally, the court stated that damages may be available for individuals who are wrongly convicted and sentenced under 28 U.S.C. § 1495. The court was reluctant to supplement those remedies with its own.
The court of appeals decided not to extend Bivens to the false arrests in question. It also cited the Supreme Court’s decision in Ziglar v. Abbasi, stating that expanding Bivens is a “‘disfavored’ judicial activity” because the separation of powers vests the power to create new causes of action in Congress, not the courts.
Read the full case: Ahmed v. Weyker
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