Does a federal badge allow a police officer to violate your constitutional rights with absolute impunity? The answer is “yes,” according to two U.S. Circuit Courts of Appeals in three different cases brought by a Somali refugee who was in her teens, a 70-year-old Vietnam veteran and a small business owner/mechanic. Nearly 60 million Americans now live in states where the courts offer absolute immunity to federal officers who violate someone’s constitutional rights. As one federal judge recently lamented, “Private citizens who are brutalized—even killed—by rogue federal officers can find little solace” in the current accountability framework.
Hamdi Mohamud escaped war-torn Somalia when she was a child. As a teenager in Minnesota, she found herself caught in a web of well-documented lies and manipulation spun by St. Paul police officer Heather Weyker. In 2011, Weyker was deputized as part of a federal task force. At that time, the officer created outright lies to have Hamdi arrested and put in jail, even though Hamdi was innocent of any crime and Weyker had no reason to believe otherwise. Nonetheless, the 8th U.S. Circuit Court of Appeals ruled that Hamdi cannot sue Weyker for ruining so much of her life through her unconstitutional acts for one simple and outrageous reason: Weyker performed all her misdeeds while holding a federal badge.
The 5th Circuit reached the same conclusion in two cases out of Texas. First, the court ruled that José Oliva—who was assaulted in an unprovoked attack caught on video as he entered a Veterans Affairs hospital—could not sue the officers who attacked him because they were federal officers.
Finally, the court decided that Kevin Byrd could not sue Department of Homeland Security Agent Ray Lamb. As captured by a security camera, Lamb stopped Kevin in a parking lot, pointed a gun at him, threatened to “blow his head off”—even going so far as to pull the trigger of his loaded gun that jammed—and used his federal badge to have Kevin arrested, even though Kevin did nothing illegal. Lamb was trying to prevent Kevin from investigating a drunk driving incident involving the agent’s son.
If state or local police officers took the same actions as Weyker, the Veterans Affairs police or Lamb, they could be held accountable by their victims for clearly violating their constitutional rights. Although qualified immunity typically prevents victims from holding state and local officers answerable for rights violations, the officers’ acts here were so egregious that qualified immunity could not shield them from a lawsuit. But because these officers were employed by the federal government—not a state or local government—the courts let them off the hook. This leaves Hamdi, José and Kevin with no chance to take these officers to court so a judge or a jury can decide if their actions violated the Constitution. That is all they seek with their cases, all of which have been appealed to the U.S. Supreme Court: their chance to bring these officers to trial and prove their case in a court of law. But the courts of appeal have given blanket, absolute immunity to these rogue federal officers and prevented them from potentially being held accountable for what they did to their demonstrably innocent victims.
This absolute immunity for federal police officers makes no sense and violates the principle that where there is a right, there must be a remedy. That’s why, on August 6, 2021, the Institute for Justice (IJ) filed petitions with the U.S. Supreme Court asking it to reverse the 8th and the 5th Circuits’ decisions in Hamdi’s and Kevin’s cases. Unfortunately, the Court refused to accept José’s case to reaffirm that federal police officers are not above the Constitution.
Simply put, the courts have turned a federal badge into a shield against the Constitution, and that needs to change.
Hamdi Mohamud's Cert Petition
Kevin Byrd's Cert Petition
Hamdi Mohamud's Reply Brief in Support of Petitioners
Kevin Byrd's Reply Brief in Support of Petition
Hamdi Mohamud Is Trapped by Officer Weyker’s Lies
In June 2011, then 16-year-old Hamdi Mohamud found herself watching a fight between three older girls. She was a bystander and did not participate in any of it. The next thing Hamdi saw was one of the girls—Muna—coming after her and the other girls with a knife. They called the police to save their lives.
Minneapolis police officer Anthijuan Beeks responded to the call.
After the attack, Muna called St. Paul police officer Heather Weyker for help. Weyker was working on a federal task force; she was at that point manufacturing a bogus criminal case against dozens of people, none of whom were ever convicted. Weyker sought to protect Muna—the girl who threatened Hamdi and the others with a knife—because Muna was a witness in Weyker’s contrived investigation.
While Beeks was investigating the knife attack, he received a message to call Weyker. Weyker told him lies to prompt him to arrest the three other girls instead of Muna. Although the altercation had nothing to do with Weyker’s investigation, Weyker lied to Beeks, telling him that the three girls were trying to intimidate Muna to discourage her from cooperating with Weyker. As a result, Hamdi and her friends were arrested on suspicion of tampering with a federal witness.
Weyker’s documented lies didn’t stop there. The next day, she composed a federal criminal complaint and affidavit, which included fabricated facts and information Weyker knew to be false. She also withheld facts showing that Hamdi and her friends were innocent—all with the intention that the girls would continue to be detained without any probable cause. Weyker’s plan worked. Although Hamdi never should have been charged with any crimes in the first place, she ended up spending two years in jail because of issues arising from supervised release on Weyker’s false charges of tampering with a federal witness and obstructing an investigation.
Eventually, Hamdi’s friends were acquitted and the charges against Hamdi were dismissed before trial.
Hamdi Seeks Accountability
Hoping to hold Weyker accountable for violating her constitutional rights, Hamdi sued the officer in federal court. Because Weyker was a St. Paul police officer who had been deputized to serve on a federal task force, Hamdi sued her as both a state officer and a federal officer. In response, Weyker argued that qualified immunity shielded her from being brought into court where she might be held liable for her actions. She also argued that because she was working as a federal officer, she couldn’t be sued at all, regardless of whether qualified immunity shields her from accountability.
Qualified immunity provides police officers strong protection against constitutional lawsuits. An officer is immune from lawsuits and liability unless the relevant appellate court has already decided that the conduct undertaken by the officer violates what is referred to as “a clearly established constitutional right.” In other words, qualified immunity is sold as protecting all but the plainly incompetent or those who knowingly violate the law—but in practice, that is not the case.
Despite the overwhelming odds against Hamdi, the trial court ruled that Weyker’s acts were knowing violations of the law. They were such clear violations of Hamdi’s constitutional rights that they could not be excused under the highly protective doctrine of qualified immunity.
Weyker appealed that decision to the 8th Circuit. (The 8th Circuit covers Minnesota, Arkansas, Iowa, Missouri, Nebraska, North Dakota and South Dakota.) That court did not address qualified immunity. Instead, it decided that if Weyker was acting as a federal officer, she would get even more protection than qualified immunity provides: She could not be sued at all, no matter how egregious her conduct. The reason has to do with a double standard that applies to police officers. State and local officers can be sued for violating someone’s constitutional rights (under a federal civil rights statute commonly referred to as Section 1983), but no comparable statute exists for federal officers. So, if you want to sue a federal officer, you must sue directly under the U.S. Constitution—a course of action that has been greatly limited by the U.S. Supreme Court. Over the past 40 years, the Court has allowed only an extremely narrow set of constitutional violations to be redressed that way.
The 8th Circuit concluded that Weyker’s violations of Hamdi’s constitutional rights are not among those that can be redressed directly under the U.S. Constitution. But that conclusion is wrong. The Supreme Court has recognized that a Fourth Amendment violation by a federal officer—precisely what Weyker did to Hamdi—is redressable. Specifically, in its 1971 decision, Bivens v. Six Unknown Named Agents of the Bureau of Narcotics, the Supreme Court held that “damages may be obtained for injuries consequent upon the violation of the Fourth Amendment by federal officials.” And in a more recent case, the Court confirmed that it did not “cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose.”
Because Weyker’s violations are precisely the kind that the Supreme Court has recognized can be redressed under the U.S. Constitution, the 8th Circuit’s decision is mistaken and needs to be overturned.
Kevin Byrd’s Similar Experience
Six other federal courts of appeals have ruled that a federal badge is not a shield against the Constitution. Unlike the 8th Circuit, those courts have permitted victims like Hamdi (whose rights have been violated at the hands of federal police) to sue the officer for damages. But the 5th Circuit, which covers Louisiana, Mississippi and Texas, has taken the same approach as the 8th Circuit, enabling federal police officers to violate constitutional rights with absolute impunity. All told, nearly 60 million Americans now live in the 10 states where federal appeals courts have ruled federal officers may run wild and not be held to account.
This was the nightmare small business owner Kevin Byrd experienced. He awoke one night to a phone call informing him that his ex-girlfriend had been in a bad car crash and might not live. He soon learned that she and her then-boyfriend were kicked out of a restaurant and that the boyfriend had been driving when they hit a parked Greyhound bus at 70 mph.
Kevin went to the restaurant to ask about what had happened leading up to the crash. When he was about to drive out of the parking lot, the boyfriend’s father, Ray Lamb, approached Kevin’s vehicle. Lamb was a Department of Homeland Security officer. He pointed his gun at Kevin through the car windshield, tried to smash the driver’s side window with the gun, and told Kevin he would “put a bullet through his f–king skull” and “blow his head off.” He then pulled the trigger, but thankfully it jammed. A security recording of the incident documents the encounter. Kevin called 911 for help. Agent Lamb called 911, too, to have Kevin arrested so he would stop looking into his son’s drunk driving.
When officers arrived, Lamb displayed his federal badge, and officers detained Kevin in a squad car. After officers watched the surveillance video of the incident, however, they arrested Lamb for aggravated assault with a deadly weapon and let Kevin go.
Kevin sued Lamb for violating his Fourth Amendment rights by threatening him with a gun and unlawfully detaining him. Like in Hamdi’s case, the trial court concluded that Lamb’s conduct was so clearly unconstitutional that qualified immunity could not shield him from the lawsuit. On appeal, however, the 5th Circuit ruled that because Lamb held a federal badge, that alone shielded him from being held accountable; as a result, Kevin’s case was dismissed.
Also, like the 8th Circuit, the 5th Circuit reasoned that Kevin’s case presented a different set of facts than those the Supreme Court has recognized allow federal officers to be held liable for constitutional violations. But as one judge on the panel observed, this decision furthers a rights-without-remedies regime: “If you wear a federal badge, you can inflict excessive force on someone with little fear of liability.”
José Oliva’s Case
Kevin’s case follows in the footsteps of another 5th Circuit case. Vietnam veteran José Oliva was assaulted in an unprovoked attack by police officers at a Veterans Affairs hospital, forced into a chokehold and violently thrown to the ground. What sparked this attack? As documented by footage from a security camera, when the officer asked to see José’s ID, he told the officer that his ID was in the plastic bin that was going through a security scan. The 5th Circuit decided that because the Veterans Affairs police were federal officers, it didn’t matter whether they obviously violated José’s constitutional rights. Their status as federal employees gave them absolute immunity.
This principle—that federal employment elevates police officers and other officials above the Constitution—is simply wrong. And to correct it, Hamdi, Kevin and José, who are represented by the Institute for Justice (IJ), appealed their cases to the U.S. Supreme Court. José’s petition was filed in January 2021, but the Court rejected his appeal and, likewise, his request for reconsideration, which was filed in June. Hamdi’s and Kevin’s appeals were filed with the Supreme Court on August 6, 2021. They are asking the Court to review and reverse the 8th and 5th Circuits’ decisions that have created a Constitution-free zone for federal police officers in Arkansas, Iowa, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, South Dakota, and Texas.
These petitions to the Supreme Court are part of IJ’s Project on Immunity and Accountability, which is devoted to the idea that government officials are not above the law; they must follow the Constitution and be held accountable when they don’t. Otherwise, federal officers can hurt—indeed, even kill—a person without ever having to answer for what they did in a court of law.
Just like José’s petition for certiorari, Hamdi’s and Kevin’s petitions both argue that the 8th and 5th Circuits ignored foundational constitutional rights. Simply put: You don’t need a permission slip from Congress to sue for violations of your Fourth Amendment rights. You can do so directly under the Constitution, without Congress providing you with a statute, such as Section 1983. The 8th and 5th Circuits have also departed from other appellate courts of appeals, giving federal police officers absolute immunity in 10 states while a different standard applies in other parts of the country.
The Supreme Court should grant review in Hamdi’s and Kevin’s cases to reaffirm that rogue federal police officers who unreasonably search or seize a person can be sued for violating.
Immunity and Accountability
Lawsuit Appeal Asks Court If Deputy Should Get Immunity Even Though His Actions Landed Him in Prison
In 2018, Mario Rosales became the victim of a deputy’s road rage. He was driving his yellow Mustang home when he passed Chaves County Sheriff’s Deputy David Bradshaw, who was off-duty and in his personal…
First Amendment | Immunity and Accountability | Political Speech
Immunity and Accountability
Case Video Cert Petition Launch Release…