What happens when a state or local police officer violates someone’s constitutional rights—and courts say there’s no practical way to sue?

In this episode of Unwritten Law, NCLA President Mark Chenoweth and Senior Litigation Counsel John Vecchione are joined by Casey Norman to discuss Mohamud v. Weyker (No. 25-760), now at the U.S. Supreme Court.

NCLA’s amicus brief explains that multiple courts have recognized Officer Heather Weyker (a St. Paul police officer) abused her authority by fabricating allegations against Hamdi A. Mohamud and at least 30 other people—conduct the brief describes as “framing” that led to Mohamud’s incarceration for over two years. Yet the Eighth Circuit held Mohamud cannot sue Weyker under 42 U.S.C. § 1983 because Weyker was also cross-deputized for a federal task force—treating the conduct as federal in nature and shutting the courthouse door.

The episode also explains why this accountability gap is especially dangerous after Egbert v. Boule, which largely eliminated Bivens remedies for most plaintiffs—making § 1983 often the only viable path for damages when cross-deputized officers violate constitutional rights.

Mark Chenoweth: Welcome to Unwritten Law. This is Mark Chenoweth. I’m here with John Vecchione and Casey Norman to talk about a brief that Casey just wrote and filed at the U.S. Supreme Court, in support of certiorari, if I’m remembering correctly. So, the case is Mohamud v. Weyker, and this is about the cross-deputization of state and local officials, sort of giving them a federal immunity, if you will. Is that the gist of it?

Casey Norman: Right. Well, that’s at least how some lower courts interpreted it. Cross-deputization, basically, is when you have a state or local police officer, like in this case, who remains a state or local police officer, but is imbued with this kind of limited, temporary federal authority as well, to assist with a federal task force. In this case, it was a sex trafficking task force that was investigating in the state of Minnesota and Tennessee.

But really, kind of the crux of this case is, if your rights are violated by a cross-deputized police officer, how do you seek relief? The issue in this case is that the lower courts found that when you’re cross-deputized, basically, you’re immune from liability. The plaintiff in this case, Ms. Hamdi Mohamud, has thus far found no pathway to relief against one of the worst, I think, actors I have encountered in any case.

John Vecchione: Explain that because it’s really amazing. It’s like if you saw it on a TV show or a movie, you’d go, “Oh, Hollywood.”

Casey Norman: Yeah. Yeah. I mean, it’s outrageous.

Mark Chenoweth: This is Officer Heather Weyker. What is she alleged – well, I say alleged, to have done, but she’s been found guilty of some of these things, as I understand.

Casey Norman: Officer Weyker, she is a state Minnesota police officer. Essentially, what the courts have found in a criminal proceeding is related but is not the same proceeding as what we’re dealing with here. They found that this officer fabricated this vast sex trafficking conspiracy, which implicated 30 innocent individuals in Minnesota, including Ms. Mohamud, the petitioner in this case.

Essentially, it was found that this was fabricated. All these 30 individuals were ultimately dismissed without charges or acquitted. But people like Ms. Mohamud had to spend quite a long time behind bars before they were ultimately free to go, and their charges were dismissed. She spent over two years behind bars before this happened.

Mark Chenoweth: One of her friends gave birth behind bars. Did I see that?

Casey Norman: Yes. Yeah. They were teenagers at the time when these charges were asserted against them. What happened specifically in this case is Officer Weyker had been developing this fabricated scheme. She developed a particular witness. A female who was, I guess, was friends with Ms. Mohamud, the petitioner in this case. This group of friends apparently got in a fight, as teenage girls do, and this witness of Officer Weyker drew a knife and attacked the girls. So, these girls called 911, and they reported that this girl had attacked them. This girl happened to be one of the key witnesses in Officer Weyker's fabricated scheme.

So, when Officer Weyker, as again, a Minnesota police officer, heard what was happening because this witness called her seeking her relief. Officer Weyker proceeded to lie about what Ms. Mohamud and her friends had been doing. She said that they had attacked her key witness. She ended up getting all these teenage girls charged with witness tampering. She claimed that these girls knew that this was a witness and were trying to prevent her from speaking and intimidate her, which is proven ultimately to be completely a lie. But these teenage girls ended up in prison for two years because of this.

Mark Chenoweth: Let’s take one step back on the legal question. What would ordinarily happen to a state or local officer who violated someone's constitutional rights?

[Crosstalk]

Mark Chenoweth: And this is a federal statute?

Casey Norman: Yes.

John Vecchione: The Civil Rights laws.

Mark Chenoweth: Civil Rights laws.

Mark Chenoweth: There was some accusation, at least, I don’t know if this is part of what was proven, that she was doing this for career advancement.

Casey Norman: Right. Right.

[Crosstalk]

Mark Chenoweth: Kind of trying to…self-promotion.

Casey Norman: That ultimately seems to be the explanation because they found all these people that were implicated had not actually committed any crimes. There wasn’t actually a sex trafficking conspiracy. So, that seemed to be the conclusion. The crazy thing is, though, that Officer Weyker remains a police officer at the St. Paul, Minnesota Police Department. She’s actually been promoted since this.

John Vecchione: Oh, my lord!

[Crosstalk]

Casey Norman: Being paid six figure salary still to this day.

John Vecchione: I have a question about that. I think what we should say here is that there’s no cause of action against federal officers for this. In our business, we complain about it because they also have, sometimes, complete immunity, but qualified immunity certainly.

[Crosstalk]

Mark Chenoweth: Well, I think it’s a little different, though, than qualified immunity because the first thing you said, there’s no cause of action.

John Vecchione: Right.

[Crosstalk]

[Crosstalk]

John Vecchione: Right. There’s no cause of action, and there’s also no waiver of sovereign immunity. There’s all kinds of things. They can go through five or six things to say, “You can’t sue us.” Which the state actors cannot do, and it makes a big difference.

[Crosstalk]

John Vecchione: That’s true.

Casey Norman: But another crazy thing in this case is, the plaintiff, Ms. Hamdi Mohamud, she did overcome qualified immunity. The Eighth Circuit found, unsurprisingly, that for qualified immunity purposes, no reasonable police officer would think that it’s constitutional or okay to fabricate a scheme that ends up getting many innocent individuals, including Ms. Mohamud, behind bars. That’s just kind of an obvious thing you’d think an officer would know.

John Vecchione: Also, why is she being – does her supervisors not believe that she framed anyone, or they don’t care? Is it a union thing? I mean, it’s kind of crazy.

Casey Norman: That I don’t know. I’ve read the briefs; nobody seems to know. But I did check governmentsalary.com or whatever, and she’s still on the St. Paul, Minnesota payroll.

Mark Chenoweth: Could be the union. I don’t know about the promotion, but it could be a union thing that, until she exhausts all of her appeals, they can’t get rid of her. But I don’t know. I haven’t looked into it.

John Vecchione: This is the complete speculation part of this.

Casey Norman: We should emphasize.

Mark Chenoweth: So, where do things stand now? The case is now at the Supreme Court. Why? How did we get here?

Casey Norman: This is rather confusing, but because there were so many innocent individuals that were implicated in this scheme, there are multiple lawsuits going on in the Eighth Circuit, in the lower courts. Ms. Mohamud’s case basically it already has gone up to the Supreme Court. They filed another petition for certiorari. I’m saying that word wrong. It’s difficult.

Mark Chenoweth: That’s all right.

Casey Norman: But that’s almost right. Okay. They filed one, but in that petition, they were asking the court to reconsider Bivens. A Bivens action, which we kind of touched on, is what you’d bring against a federal officer who violated your constitutional rights. Basically, the court did not take that case up.

Mark Chenoweth: So, that’s the question for the court.

[Crosstalk]

Casey Norman: Right.

Casey Norman: Right.

Mark Chenoweth: Okay.

Casey Norman: According to the Eighth Circuit, and other lower courts around the country, if you are cross-deputized and exercising even limited federal authority at the same time as your state authority – I should also emphasize that Officer Weyker remained a state police officer. It’s not as though suddenly she was being paid by the federal government.

Mark Chenoweth: She wasn’t seconded or something like that.

[Crosstalk]

Casey Norman: No.

Mark Chenoweth: When she arrested somebody, this was a state arrest. It wasn’t some sort of federal arrest.

Casey Norman: Right.

[Crosstalk]

John Vecchione: But she couldn’t arrest people in Tennessee, I take it?

Casey Norman: No. When you look at her cross-deputization form, it’s very limited authority. I think it says she can seek and execute a search warrants that assists a federal task force, and that’s it. That’s the extent of her federal authority. Everything else she did was as a St. Paul, Minnesota, Police Officer.

Mark Chenoweth: I assume part of the federal task force wasn’t creating conspiracies that don’t exist. So, she was just operating beyond the scope of whatever federal deputization she had anyway, it seems to me.

[Crosstalk]

Casey Norman: Right. The checklist did not include fabricating a sex trafficking conspiracy. Also, when she implicated Ms. Mohamud and her friends, she called in and said, “Hey, this is Officer Weyker with the St. Paul, Minnesota Police Force. I want to speak to this other local police officer.” She proceeded to implicate these teen girls for a Minnesota state law crime, which was witness tampering. Even though it was fabricated, it had nothing really to do with the limited authority she did have at the federal level.

[Crosstalk]

Mark Chenoweth: Right. The Department of Justice had this prior understanding, so did the police force.

Casey Norman: Right.

Mark Chenoweth: This was part of the agreement between them. Yet, the court didn’t give that adequate weight, apparently.

Mark Chenoweth: Well, and we should clarify to our audience. When you say that you can go after the federal folks under Bivens, what that really means is that you can’t go after them at all. Because first of all, Bivens is not – to John’s earlier point, not a congressionally created cause of action; it’s a judicially created cause of action during sort of the –

[Crosstalk]

John Vecchione: The 60s.

[Crosstalk]

Mark Chenoweth: Yeah. The Warren Court.

[Crosstalk]

John Vecchione: It was created during the Civil Rights period when the Warren Court didn’t care about contextualism or originalism, and saw bad things and decided to stop bad things.

Mark Chenoweth: Right. Then, the modern textualist Supreme Court is really clawed back or cabined Bivens to its facts, or I guess, maybe three precedents now that are sort of excepted Bivens precedents. But if you have any fact pattern outside of that, the chance of getting a Bivens action are next to none. So, really, you don’t have a chance.

[Crosstalk]

Mark Chenoweth: When you’re opposing it.

[Crosstalk]

John Vecchione: Yeah.

[Crosstalk]

Casey Norman: Yeah.

[Crosstalk]

Mark Chenoweth: Yeah, exactly.

[Crosstalk]

John Vecchione: Really killed it.

[Crosstalk]

John Vecchione: Cause of action.

Mark Chenoweth: Here, they’re taking away a cause of action that Congress created.

John Vecchione: Right. I mean, you got to go through a lot of steps to create this, right? You’ve got to say that her federal qualities outweighed her state qualities, which certainly does not seem. Or, you have to say that the slightest amount of being cloaked in federal authority, the slightest amount.

Mark Chenoweth: That’s right.

John Vecchione: Immediately makes you untouchable.

Mark Chenoweth: You can’t be a little bit federal.

John Vecchione: Exactly. That has to be the understanding. Neither of those is a good decision, and I don’t think the Eighth Circuit was bound by anything, right? There’s no bound case that said this.

Mark Chenoweth: I think there’s the weight of precedent from other circuits and other district courts that have done the same wrong thing.

John Vecchione: Wow.

Casey Norman: There’s a split right now. I think it’s three and three right now.

Mark Chenoweth: Okay.

[Crosstalk]

Mark Chenoweth: I like that argument in your amicus brief, where you said, “The statute doesn’t say ‘exclusive.’ It doesn’t say ‘primary.’ It just says, ‘under color of state law.’”

Casey Norman: Right.

John Vecchione: Plus, she charged them under state law, and they suffered under state law.

[Crosstalk]

Mark Chenoweth: Were they in state prison when they were behind bars? State or local prison?

Casey Norman: I believe they were. I’m almost certain.

[Crosstalk]

Mark Chenoweth: Okay. I don’t see the federal –

[Crosstalk]

John Vecchione: I think so. I think because it was witness tampering, it wasn’t the sex crimes that they got put in jail for, as I recall.

Casey Norman: Right.

John Vecchione: So, correct me on the facts, but I believe this was a whole Minnesota operation. So, there was absolutely no federal conviction, and there was no federal officer at the trial. I think it was only her. I mean, it was only Minnesota. So, it’s even worse because this isn’t a case where you could say that the state police officer goes in with federal officers, and they shoot someone, and they all shoot someone. The federal officers get off, and the state officers are on the hook. It’s not even that. It is only the state that did anything to these people, at this police officer's behest.

Casey Norman: Right.

Mark Chenoweth: Unfortunately, we almost never have federal officers in Minnesota, so this is something that will have the narrowest of application – eh, never mind. So, what happens now? Let me ask a different question first. Were there any other arguments in your amicus brief that you wanted to mention, and then I was going to ask what happens next.

Casey Norman: I think one thing that we also point out is just the fact that the police power is supposed to be limited very, very much so to the states and not to the federal government. I think when you have this kind of issue, where through cross-deputization you can have, kind of federal influence over police powers. You can just cross-deputize a bunch of state and local officers. Make them your federal government minions. Then, just commit rights violations willy-nilly and do what you want because you know there’s zero liability. I think that’s a really, really dangerous problem that is growing as this cross-deputization trend grows.

John Vecchione: Because, as we’ve discussed before, the police power of the states is far greater than the federal government, who have to identify a power Congress gave them in order to do anything. That’s not true of the state.

Mark Chenoweth: Right. They have all the residual power that the Constitution didn’t give to the federal government. There is no general federal police power. But if you could just cross-deputize state and local folks and order them around, boy, that looks like a general federal police power all of a sudden.

Casey Norman: Right. These cross-deputized officers, it’s like they're imbued with double the power and half the liability for any wrongdoing.

[Crosstalk]

Mark Chenoweth: Half would be good from what you’re telling me.

[Crosstalk]

John Vecchione: One percent.

[Crosstalk]

Casey Norman: Yeah, or even maybe half percent.

Mark Chenoweth: So, what does happen now?

Casey Norman: Well, this is at the cert stage, and we’re very much hoping that the Supreme Court will take this case up.

Mark Chenoweth: There’s a circuit split you said, so that helps.

Mark Chenoweth: Absolutely. The case is Mohamud v. Weyker. It is pending cert at the U.S. Supreme Court. Casey Norman, thank you for your hard work on this amicus brief, and thank you for explaining it to our audience today. That was terrific, and I join you in your hope that the Supreme Court will grant cert in this case. You’ve been listening to Unwritten Law.

[End of Audio]

Duration: 19 minutes