United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3461
___________________________
Hawo O. Ahmed
Plaintiff - Appellee
v.
Heather Weyker, in her individual capacity as a St. Paul Police Officer
Defendant - Appellant
___________________________
No. 18-3471
___________________________
Hamdi A. Mohamud
Plaintiff - Appellee
v.
Heather Weyker, in her individual capacity as a St. Paul Police Officer
Defendant - Appellant
____________
Appeals from United States District Court
for the District of Minnesota
____________
Submitted: June 18, 2020
Filed: December 23, 2020
____________
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.
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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 (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
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deputized federal agent, see Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388, 397 (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. 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
1
For this reason, the availability of a Bivens action is squarely before us on
appeal. Indeed, Weyker has argued all along that the plaintiffs do not have a cause
of action against her as a deputized federal officer. See Defendant’s Memorandum
in Support of Motion to Dismiss at 37–47, 0:17-cv-02070-JNE-TNL (D. Minn. Oct.
20, 2017), ECF No. 19; see also Plaintiff Mohamud’s & Plaintiff Ahmed’s
Memorandum of Law Opposing Defendant’s Motion to Dismiss at 15–16, 0:17-cv-
02070-JNE-TNL (D. Minn. Dec. 4, 2017), ECF No. 25. It is also her lead argument
on appeal. See Consolidated Br. for the Appellant at 13–26; see also Consolidated
Response Br. for the Appellees at 12–15. To the extent that the dissent has second
thoughts about our decision to reach this issue now, Farah all but settled that we
can. 926 F.3d at 497, 502–03, 503 n.1 (treating the Bivens issue in a similar posture
as a “threshold question” and declining to decide qualified immunity first).
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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, 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.
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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 (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 (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 man in his own home without a warrant”).
Under those circumstances, the Supreme Court held that he had “a cause of action
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[against the officers] under the Fourth Amendment” and that “money damages” were
potentially available “for any injuries he ha[d] suffered.” Bivens, 403 U.S. at 397.
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 differences 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 material 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”).
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Second, and closely related, Weyker’s role in the arrests was different. In
contrast to the officers in Bivens, she did not arrest anyone herself, nor was she even
on the scene when the arrests occurred. See Abbasi, 137 S. Ct. at 1859–60 (listing
“the generality or specificity of the official action” as a meaningful potential
difference). Rather, she provided allegedly false information to another officer in a
different police department, who then arrested the plaintiffs. See Cantú v. Moody,
933 F.3d 414, 423 (5th Cir. 2019) (holding that a “claim involv[ing] different
conduct by different officers from a different agency” than in Bivens presented a
new context). In this way, Weyker’s actions fell somewhere along the spectrum
between a Franks-type violation and a simple warrantless arrest. Compare Franks,
438 U.S. at 155–56 (involving a situation in which an officer makes “a false
statement knowingly and intentionally, or with reckless disregard for the truth”),
with District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (“A warrantless
arrest is reasonable if the officer has probable cause to believe that the suspect
committed a crime in the officer’s presence.”). Not only is this factual difference
from Bivens meaningful, it also narrows the doctrinal divide between a false-
affidavit theory, which the dissent concedes is foreclosed by Farah, and one based
solely on the initial arrest itself.
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
prosecutors—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
2
We read the plaintiffs’ allegations as primarily concerned with the role that
Weyker played in their arrests. To the extent they seek “damages arising out of
[their] post-arrest indictment[s],” any such “claim must proceed, if at all, under
section 1983.” Farah, 926 F.3d at 503 n.2.
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multiple actors). Even though it is true that “the mechanism of injury” is less
attenuated here than in Farah, which involved “a series of intervening steps,” the
claims are still less “straightforward” than in Bivens. Farah, 926 F.3d at 499.
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 statements 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 plaintiffs 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
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Bivens, arose out of an allegedly illegal arrest. But “a modest extension is still an
extension,” Abbasi, 137 S. Ct. at 1864, even if it involves “the same constitutional
provision,” Hernandez, 140 S. Ct. at 743.
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
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determine what Weyker knew, what she did not know, and her state of mind at the
time. Williams, 772 F.3d at 1311. There are, as we explain above, “substantial
costs” associated with requiring public officials to litigate these types of issues,
including “the diversion” of public resources and deterring “able citizens from . . .
public office.” See Harlow, 457 U.S. at 814, 816. It may well be that the costs are
worth it, but Congress is better equipped than we are to make the call. Farah, 926
F.3d at 501.
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. No. 105-119, § 617, 111 Stat. 2440, 2519 (codified at 18
U.S.C. § 3006A note)). And for “those who are wrongly convicted and sentenced,”
damages may be available. Id. (citing 28 U.S.C. § 1495). We are especially
reluctant to supplement those remedies with our own, which could upset the existing
remedial structure. Abbasi, 137 S. Ct. at 1858; Farah, 926 F.3d at 501–02. This
factor alone, as the Supreme Court has explained, is “a convincing reason” not to
extend Bivens. Abbasi, 137 S. Ct. at 1858 (quotation marks omitted).
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 section 1983 claims may proceed,
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subject to Weyker’s defense of qualified immunity. 3 Farah, 926 F.3d at 502–03,
503 n.1 (declining “to skip over the under-color-of-state-law element to decide . . .
qualified immunity”); see Magee v. Trs. of Hamline Univ., 747 F.3d 532, 535 (8th
Cir. 2014) (evaluating whether an officer acted under color of state law).
IV.
We accordingly vacate and remand to the district court to dismiss the
plaintiffs’ Bivens claims and determine whether their cases can proceed under 42
U.S.C. § 1983.
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, plaintiffs Hawo Ahmed and Hamdi Mohamud filed complaints
against Officer Heather Weyker in federal court. The complaints identify two
3
It is premature at this point to address Weyker’s argument that the district
court abused its discretion when, in addressing qualified immunity, it declined to
take judicial notice of matters outside the pleadings. See Cravens v. Smith, 610 F.3d
1019, 1029 (8th Cir. 2010) (standard of review); 2 James Wm. Moore, Moore’s
Federal Practice § 12.34[2], at 12-94 (3d ed. 2020).
4
As an initial matter, I note that it may be premature to address Officer
Weyker’s claim that Bivens does not afford a potential remedy for plaintiffs’ claimed
injuries. Officer Weyker appeals the district court’s denial of her motion to dismiss
the case based on qualified immunity. But that opinion concluded that there was “no
need to decide” at that time whether Bivens or 42 U.S.C. § 1983 provided the “proper
vehicle” for plaintiffs’ claims, and we “ordinarily, we do not decide issues the district
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separate instances in which Officer Weyker allegedly lied about Ahmed and
Mohamud’s suspected criminal activity, leading to their detention in federal custody.
First, Ahmed and Mohamud claim that Officer Weyker knowingly provided false
information to Officer Anthijuan Beeks, which caused Officer Beeks to arrest and
transport them to jail when he otherwise had no basis to do so. Second, they claim
that, after this initial arrest, Officer Weyker submitted a federal criminal complaint
and supporting affidavit, in which she omitted exculpatory information and included
information that she knew to be false. This affidavit led the court to issue arrest
warrants for Ahmed and Mohamud. They were then placed in federal custody and
eventually indicted for violating multiple federal laws. In both of these actions,
Ahmed and Mohamud contend, Officer Weyker fabricated “probable cause that did
not otherwise exist,” causing them to be “seized, arrested, detained, charged and
indicted” in violation of their Fourth Amendment rights.
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
court did not adjudicate.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 603 (8th
Cir. 2009) (quoting Daisy Mfg. Co. v. NCR Corp., 29 F.3d 389, 395 (8th Cir. 1994)).
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unlawful arrest. 5 As Ahmed and Mohamud describe it in their complaints, this claim
asserts that Officer Weyker caused them to be arrested without probable cause. See
United States v. Thompson, 533 F.3d 964, 969-70 (8th Cir. 2008) (explaining that
the question of whether officers have probable cause to arrest is based on the
collective knowledge of all officers involved). This was the claim at issue in Bivens.
Though Bivens also alleged that officers used unreasonable force during their search
of his home, one of his core contentions was that the officers did not have probable
cause when they arrested him. See Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 389 (1971) (“[Bivens’s] complaint asserted that
the arrest and search were effected without a warrant, and that unreasonable force
was employed in making the arrest; fairly read, it alleges as well that the arrest was
made without probable cause.”). Rather than representing an extension of Bivens,
plaintiffs’ claim falls squarely within the cause of action recognized by Bivens itself.
Cf. Abbasi, 137 S. Ct. at 1856 (refusing to “cast doubt on the continued force, or
even the necessity, of Bivens in the search-and-seizure context in which it arose”);
see also Hicks v. Ferreya, 965 F.3d 302, 311-12 (4th Cir. 2020) (applying Bivens to
a claim of unlawful seizure during a traffic stop); Jacobs v. Alam, 915 F.3d 1028,
1038-39 (6th Cir. 2019) (applying Bivens to claims for excessive force, false arrest,
malicious prosecution, fabrication of evidence, and civil conspiracy); Brunoehler v.
Tarwater, 743 F. Appx. 740, 743-44 (9th Cir. 2018) (unpublished) (applying Bivens
to claims of search and arrest without probable cause).
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
5
The court describes prosecutors as “play[ing] a role” in the events underlying
Ahmed and Weyker’s claim. Supra at 8. On my read, the only legal actors involved
in the arrest were Officer Weyker and Officer Beeks.
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differences require it to move on to step two of Abbasi and determine whether
“special factors” exist that would counsel hesitation in extending a Bivens remedy.
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 play 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
6
Williams v. City of Alexander, 772 F.3d 1307 (8th Cir. 2014), which
addresses an allegedly false warrant affidavit, may support the conclusion that
plaintiffs’ false affidavit claim is different than that in Bivens. See id. at 1311
(“[W]hen a police officer deliberately or recklessly makes false statements to
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Cir. 2010) (when one officer instructs another to make an arrest, “[w]e consider the
pertinent question to be whether [the instructing officer] had probable cause at the
time of the arrest: that is, whether the facts and circumstances would have led to a
reasonable conclusion that a crime had been committed”). This is the showing that
the plaintiff in Bivens would have had to make and that Ahmed and Mohamud would
be making here.
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 constitutional 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 enforcement 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.
demonstrate probable cause for an arrest warrant, the warrant may be invalidated
under Franks v. Delaware.”). But in my view, Franks plays no role in a claim that
officers effectuated a warrantless arrest without probable cause.
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While these factors are not exhaustive, see id. at 1859-60, each supports the
conclusion that the context for plaintiffs’ false arrest claim is not new.
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’ Fourth 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.
______________________________
7
The court maintains that Ahmed and Mohamud may still seek recourse for
their claimed harm under § 1983. However, I note that the district court has already
determined in a related case that, on the date in question, Officer Weyker was acting
as a federally deputized officer, not under color of state law, making a § 1983 claim
unavailable. See Yassin v. Weyker, No. 16-cv-2580 (JNE/TNL), 2020 WL 6438892
at *4-5 (D. Minn. Sept. 30, 2020), appeal filed, No. 20-3299 (8th Cir. Nov. 2, 2020).
The court’s decision here will thus have the likely effect of denying plaintiffs any
legal remedy for the constitutional violation they allege. See Abbasi, 137 S. Ct. at
1863 (“There is a persisting concern, of course, that absent a Bivens remedy there
will be insufficient deterrence to prevent officers from violating the Constitution.”).
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