Hаwo O. Ahmed; Hamdi A. Mohamud v. Heather Weyker, in her individual capacity as a St. Paul Police Officer
No. 18-3461, No. 18-3471
United States Court of Appeals for the Eighth Circuit
Submitted: June 18, 2020; Filed: December 23, 2020
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 investigаtion 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-traffiсking 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.
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
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 gоvernment 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
Weyker asked the district court to dismiss both claims. See
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 triаl, 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
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, 140 S. Ct. 735, 742-43 (2020); Farah, 926 F.3d at 497; see Bivens, 403 U.S. at 397. 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 (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 (1980); Davis v. Passman, 442 U.S. 228 (1979); Bivens, 403 U.S. 388. Expanding Bivens is, according to the Supreme Court, “now a ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (quoting Iqbal, 556 U.S. at 675); 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.
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 (allowing a cruel-and-unusual-рunishment claim to proceed after prison officials fatally mishandled an inmate‘s serious asthmatic condition); Davis, 442 U.S. at 235-36, 243-44 (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. 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 mаn in his own home without a warrant“). Under those circumstances, the Supreme Court held that he had “a cause of action
Our task is to determine whether this “case is different in a meaningful way from . . . Bivens.” See Abbasi, 137 S. Ct. at 1859. As we explained in Farah, relevant differences can include, among other things, “the sorts of actions being challenged, the mechanism of injury, and the kinds of proof those injuries would require.” 926 F.3d at 500; see also Abbasi, 137 S. Ct. at 1859-60 (providing “examples” of differencеs without establishing “an exhaustive list“). Even “small” differences can be “meaningful.” Abbasi, 137 S. Ct. at 1865 (calling this step “eas[y to] satisf[y]“); see Hernandez, 140 S. Ct. at 743 (“[O]ur understanding of a ‘new context’ is broad.“). The case before us is meaningfully different from Bivens in four ways.
First, “the sorts of actions being challenged” here are different. Farah, 926 F.3d at 500. The focus in Bivens was on an invasion into a home and the officers’ behavior once they got there. 403 U.S. at 389. Here, by contrast, Weyker did not enter a home, even if the actions she allegedly took—like manufacturing evidence and lying—were just as pernicious. Farah, 926 F.3d at 499; see also Franks, 438 U.S. at 155-56 (holding that fabricating probable cause through materiаl and knowingly false information in a warrant application violates the Fourth Amendment); Small, 708 F.3d at 1006 (explaining that an officer violates an individual‘s Fourth Amendment rights when he persuades someone else that there is probable cause “based solely on information the officer knew to be false” (quotation marks omitted)). Lying and manipulation, however bad they might be, are simply not the same as the physical invasions that were at the heart of Bivens. See Farah, 926 F.3d at 499; cf. Canada v. United States, 950 F.3d 299, 307 (5th Cir. 2020) (holding that the Supreme Court‘s prior Bivens cases were meaningfully different from a situation in which IRS agents had “intentionally manipulated a penalty assessment“).
Third, although “the mechanism of injury” is a closer call, there is still one meaningful difference. Farah, 926 F.3d at 499. In Bivens, the injuries included “humiliation, embarrassment, and mental suffering [that] were directly caused by the officers’ conduct.” Id. (internal quotation marks omitted). Ahmed and Mohamud suffered these same injuries, but the “direct[] caus[al]” chain is missing. Id. Multiple “independent legal actors“—Officer Weyker, Officer Beeks, and even рrosecutors—played a role.2 Id. Indeed, the dissent concedes as much by invoking the collective-knowledge doctrine. See United States v. Thompson, 533 F.3d 964, 969 (8th Cir. 2008) (explaining the collective-knowledge doctrine, which involves
Fourth, proving these claims would require a different type of showing. Abbasi, 137 S. Ct. at 1860. For the allegedly false affidavit, Ahmed and Mohamud would have to establish that (1) Weyker‘s statеments were false; (2) she made them “knowingly and intentionally, or with reckless disregard [for] the truth“; and (3) without them, there would be no probable cause. Williams v. City of Alexander, 772 F.3d 1307, 1311 (8th Cir. 2014) (quotation marks omitted); see Haywood v. City of Chicago, 378 F.3d 714, 719-20 (7th Cir. 2004) (applying Franks to misrepresentations made in the context of continued detention). Bivens did not require this type of fact-checking and conscience-probing, 403 U.S. at 389; Farah, 926 F.3d at 499, which can, as the Supreme Court has warned, impose “substantial costs,” Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). Similarly, for the arrest itself, there would have to be an examination into whether Officers Beeks would have had probable cause to arrest the plаintiffs in the absence of Weyker‘s allegedly false information. See Green v. Nocciero, 676 F.3d 748, 754-55 (8th Cir. 2012); Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 814-18 (8th Cir. 2010); see also Smoak v. Hall, 460 F.3d 768, 779-80 (6th Cir. 2006) (explaining that whether reasonable suspicion existed depended on “the facts known to the . . . troopers who actually participated in the seizure,” not simply what the dispatchers, who relayed misleading and incomplete information, told them). Although it would not quite rise to the level of conscience-probing, it would still require fact-checking what Beeks knew and when. See Green, 676 F.3d at 754-55; Fisher, 619 F.3d at 814-18. No comparable inquiry was in play in Bivens. 403 U.S. at 389 (involving actions only by the arresting officers).
2.
When one or more meaningful differences exist, it is not enough to identify a few similarities. The plaintiffs and dissent make much of the fact that this case, like
If the test sounds strict, it is. As an example, the Supreme Court refused to recognize an implied cause of action for a claim of inadequate medical treatment against officers in a privately contracted prison, Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63-64, 73-74 (2001), even though it had previously recognized an identical claim against a prison guard in a federally run prison, Carlson, 446 U.S. at 16-18. See Hernandez, 140 S. Ct. at 743 (comparing Carlson and Malesko on this basis). If Malesko was a new context, then this case is too. See Farah, 926 F.3d at 498-500; see also Abbasi, 137 S. Ct. at 1856 (explaining that the Supreme Court had “no[] inten[t] to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose” (emphasis added)); Cantú, 933 F.3d at 423 (concluding that an unlawful-seizure claim under the Fourth Amendment presented a new context when the plaintiff alleged that officers “falsified affidavits,” rather than “entered [a] home without a warrant“).
C.
At step two, the task is to determine whether, in this new context, an implied cause of action is available. The focus is on whether there are any “special factors” that “cause[] [us] to pause before acting without express congressional authorization.” Abbasi, 137 S. Ct. at 1857-58 (quotation marks omitted). “It does not take much,” Farah, 926 F.3d at 500, because Congress is usually “in the better position” to weigh the costs and benefits of creating “a new substantive legal liability,” id. (quoting Abbasi, 137 S. Ct. at 1857). On this point, Farah once again does much of the heavy lifting. Id.
Just like in Farah, a trial would “risk . . . burdening and interfering with the executive branch‘s investigative . . . functions.” Id. Perhaps the level of interference would be less than in Farah, as the plaintiffs argue, but a jury would still need to
Moreover, as in Farah, other remedies are available “to address injuries of the sort the plaintiffs have alleged[].” Id. “The so-called Hyde Amendment allows courts to award attorney fees to criminal defendants who prevail against ‘vexatious, frivolous, or . . . bad[-]faith’ positions taken by the government.” Id. (quoting Act of Nov. 26, 1997, Pub. L. Nо. 105-119, § 617, 111 Stat. 2440, 2519 (codified at
None of this should be surprising. After all, the Supreme Court has not recognized a new Bivens action “for almost 40 years.” Hernandez, 140 S. Ct. at 743; see also Abbasi, 137 S. Ct. at 1857 (collecting cases). Our conclusion here is no different.
III.
So what happens next? Just because a Bivens remedy is off the table does not mean the plaintiffs’ cases are over. If the district court determines on remand that Weyker was acting under color of state law, their
IV.
We accordingly vacate and remand to the district court to dismiss the plaintiffs’ Bivens claims and determine whether their cases can proceed under
KELLY, Circuit Judge, dissenting.
In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court cautioned that extending Bivens to new contexts is a “disfavored judicial activity.” Id. at 1857 (cleaned up). But because I believe that one of plaintiffs’ claims does not extend Bivens to a new context, I respectfully dissent from the court‘s conclusion otherwise.4
In 2017, plаintiffs Hawo Ahmed and Hamdi Mohamud filed complaints against Officer Heather Weyker in federal court. The complaints identify two
I agree with the court that, based on our precedent, no Bivens remedy is available for plaintiffs’ claim that Officer Weyker violated their Fourth Amendment rights by submitting a false affidavit to the district court. In Farah v. Weyker, 926 F.3d 492 (8th Cir. 2019), this court held that a claim that a federally deputized officer (namely, Officer Weyker) “duped prosecutors and a grand jury into believing that the plaintiffs were part of a multi-state sex-trafficking conspiracy” was “meaningfully different” from established Bivens cases. Id. at 498. Because “special factors” weighed against extending Bivens to the new context, we declined to do so. Id. at 500-02. As largely the same differences and special factors are present in Ahmed and Mohamud‘s second allegation against Officer Weyker, Farah forecloses the possibility of Bivens relief on that claim.
But Farah does not foreclose relief for Ahmed and Mohamud‘s first allegation—that Officer Weyker lied to Officer Beeks, which resulted in their
In concluding that plaintiffs’ claim presents a new context, the court highlights several differences between plaintiffs’ claim and Bivens that it finds relevant: differences between the “sorts of actions being challenged,” “the mechanism of injury” and role of Officer Weyker in that injury, and the type of showing required to prove plaintiffs’ claim. See supra at 7-8. To the court, these
I do not see the differences that the court does. As to the first claimed difference, the type of action being challenged here was also at issue in Bivens: an arrest unsupported by probable cause. That Bivens also included a separate claim about the officers’ use of force within Bivens‘s home does not undermine the fact that in both that case and this one the plaintiffs’ claimed injuries stemmed from the arrest itself. Similarly, the mechanism of injury and role Officer Weyker played are the same as in Bivens: actions by law enforcement officers, one of whom was Officer Weyker. The court points to the absence of a “direct causal chain” and the involvement of “multiple independent legal actors” in this case, see supra at 7, but the situation is simpler than the court makes it out to be. Officer Weyker is alleged to have lied to Officer Beeks about the basis for probable cause to arrest plaintiffs, and Officer Beeks arrested plaintiffs based on that false information. It is unclear to me why we should take pains to separate out Officer Weyker‘s role in plaintiffs’ arrest, particularly when in other contexts we readily recognize the collective role different officers рlay in effectuating arrests. See, e.g., Thompson, 533 F.3d at 969-70 (describing the collective knowledge doctrine). Finally, the showing required to prove plaintiffs’ claim here would be the same as that required in Bivens. In any challenge to a warrantless arrest, the person claiming a violation of her Fourth Amendment rights must show that the facts known to the officers involved did not provide a reasonable probability of criminal activity. See, e.g., District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (explaining probable cause standard). Regardless of why a plaintiff might allege that probable cause was lacking, the court assessing her claim must examine what the officers knew at the time of the arrest—an inquiry that may, in any case, involve “fact-checking” of how those officers came to their conclusions.6 Cf. Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 817 (8th Cir.
We are also guided by Abbasi, which provides examples of “differences that are meaningful enough to make a given context a new one.” Abbasi, 137 S. Ct. at 1859-60. These include “the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence or potential special factors that previous Bivens cases did not consider.” Id. at 1860. No meaningful differences are present here. Like the agents in Bivens, Officer Weyker was an investigative officer who is alleged to have violated plaintiffs’ Fourth Amendment right to be free of unlawful arrest. Cf. Hernandez v. Mesa, 140 S. Ct. 735, 743-44 (2020) (establishing that “[a] claim may arise in a new context even if it is based on the same cоnstitutional provision” as a previous claim, but describing Bivens as covering “an allegedly unconstitutional arrest and search” by local police officers). The judicial guidance on conducting a lawful arrest remains clear, and the mandate comes from the Constitution. Recognizing plaintiffs’ claim risks no more intrusion into the functioning of another branch of government than did Bivens, which also turned on the knowledge and actions of police officers. And here, plaintiffs challenge an “individual instance[] . . . of law enforсement overreach, which due to [its] very nature [is] difficult to address except by way of damages actions after the fact.” Abbasi, 137 S. Ct. at 1862.
The Supreme Court in Abbasi did “not intend[] to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose.” Id. at 1856; see also id. at 1856-57 (”Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward.“). I find no meaningful difference between plaintiffs’ Fоurth Amendment false arrest claim and what the Supreme Court recognized in Bivens and has continued to recognize in Abbasi and Hernandez. In my view, a Bivens remedy is available to Ahmed and Mohamud on this claim.7 Because the court denies them this remedy, I respectfully dissent.