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Hersi v. Weyker

United States District Court, D. Minnesota

August 9, 2017

HEATHER WEYKER, in her individual capacity as a St. Paul Police Officer; JOHN BANDEMER, in his individual and official capacities as a St. Paul Police Sergeant; ROBERT ROES 1-3, in their individual and official capacities as supervisory members of the St. Paul Police Department; and THE CITY OF ST. PAUL, Defendants.




         Plaintiff Abdirahman Abdirzak Hersi alleges violations of his constitutional rights in an investigation that led to his indictment by a federal grand jury and his subsequent arrest. He sues Defendants Heather Weyker, a police officer for the St. Paul Police Department in Minnesota; John Bandemer, a St. Paul Police Department sergeant who is alleged to have been Weyker's supervisor; Robert Roes 1-3, who are allegedly supervisory St. Paul police officers; and the City of St. Paul (“St. Paul”). Weyker and Bandemer move to dismiss Hersi's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and on absolute and qualified immunity grounds. Dkt. No. 19. St. Paul moves on behalf of the City of St. Paul and Robert Roes 1-3 for judgment on the pleadings pursuant to Rule 12(c). Dkt. No. 25.

         The investigation at the core of Hersi's civil complaint targeted a suspected venture involving the sex-trafficking of minor girls across Minnesota, Tennessee, and Ohio. The investigation resulted in the criminal indictment of thirty people, mostly Somali, in the Middle District of Tennessee in 2010-2011 (“Tennessee Case”). Hersi alleges that Weyker fabricated evidence about him and others throughout the investigation, resulting in a tainted indictment that was further corrupted by Weyker's continuing deception, and causing his arrest and detention without probable cause.

         Nineteen of Hersi's co-defendants in the Tennessee Case bring separate suits similarly alleging constitutional violations, and a twenty-first person brings another related civil suit. The parties agreed to coordinated briefing on the Defendants' motions. The Court assumes familiarity with its fuller opinion in one of the related cases, Osman v. Weyker, et al., No. 16cv908 (“Osman Opinion”) (filed simultaneously herewith), and will not repeat that opinion's discussion verbatim here, given the overlap in allegations and arguments. Hersi is represented by the same attorneys as the plaintiff in that case, and their attorneys filed consolidated opposition papers to the Defendants' motions. See Osman Pls.' Opp. to St. Paul Mot., Dkt. No. 30; Osman Pls.' Opp. to DOJ Mot. to Dismiss (“Osman DOJ Opp.”), Dkt. No. 36.

         The Court held a hearing on Defendants' motions on May 3, 2017, and now grants both motions.[1]


         A motion to dismiss or a motion for judgment on the pleadings is appropriately granted “only when there is no dispute as to any material facts and the moving party is entitled to judgment as a [m]atter of law.” Greenman v. Jessen, 787 F.3d 882, 887 (8th Cir. 2015) (citation omitted). To survive a Rule 12 motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Haney v. Portfolio Recovery Assocs., LLC, 837 F.3d 918, 924 (8th Cir. 2016), as amended (Dec. 27, 2016). See also Osman Op. 3-4.


         Most of the salient allegations are similar to those alleged by Osman and summarized and analyzed in the Court's order in that case. See, e.g., Osman Op. 4-8. The Court briefly recounts some allegations in Hersi's First Amended Complaint and other facts gleaned from the Tennessee Case record.

         Hersi was arrested on November 8, 2010, after being indicted by a grand jury in the Tennessee Case. FAC ¶ 9-10. He was imprisoned as a pretrial detainee. FAC ¶ 65.

         The First Superseding Indictment filed on November 3, 2010, indicted him in five counts.[2] See United States v. Hersi, No. 3:10cr260, Dkt. No. 36 (M.D. Tenn. Nov. 3, 2010) (“FSI”). Two counts alleged participation in a sex-trafficking conspiracy in violation of 18 U.S.C. § 1591(a) (Counts 1 and 2). These counts alleged that on April 25, 2009, as some co-defendants began to plan a trip to Nashville, Tennessee “for the purpose of transporting Jane Doe Two to Nashville to engage in commercial sex acts, ” FSI ¶ 37, those defendants “transported Jane Doe Two to a location where” Hersi “was present, ” where she was “provided to” him “for the purpose of sex, ” and that Hersi “did engage in sex acts with Jane Doe Two, ” FSI ¶ 40. The indictment alleged that the next day, Hersi and some of the co-defendants “offer[ed] Jane Doe Two” to persons “for the purpose of commercial sex acts” to “attempt to raise money for the trip to Nashville . . . .” FSI ¶¶ 43-44. Counts 12 and 13 alleged that Hersi recruited and attempted to recruit Jane Doe Two, a minor, to engage in commercial sex. See FSI ¶¶ 97-98.

         Hersi has “never met Jane Doe Two, and any allegations to the contrary are fabricated.” FAC ¶ 15. Prior to his indictment, “Weyker and others were in possession of information that Hersi had no connection whatsoever to Jane Doe Two.” FAC ¶ 16. Hersi “certainly never engaged in sexual intercourse with Jane Doe Two, ” “certainly never paid a fee nor provided anything of value in exchange for engaging in sex acts” with her, and “certainly never arranged for Jane Doe Two to have sex with anyone in exchange for a fee, ” and “any allegations to the contrary were fabricated.” FAC ¶¶ 18-20. Hersi was not involved in any way with a trip that Jane Doe Two and others took to Nashville in April 2009 in which the government alleged that Jane Doe Two engaged in sex for money. See FAC ¶¶ 21, 31. Weyker manipulated Jane Doe Two “into fabricating evidence about Hersi, whom she had never met, and others.” FAC ¶ 45.

         In addition, the fifth charge against Hersi in the First Superseding Indictment, Count 18, charged him with conspiring to commit credit card fraud in violation of 18 U.S.C. § 1029(a). FSI ¶ 117.

         In Spring 2012, a group of the co-defendants, including Hersi, were scheduled to stand trial. See FAC ¶¶ 49; United States v. Adan, 913 F.Supp.2d 555, 560 (M.D. Tenn. 2012). “A jury was empaneled as to Hersi, but a mistrial was declared as to Hersi's case[, ] and the jury did not return a verdict against Hersi.” FAC ¶ 50; see also Adan, 913 F.Supp.2d at 560 (“[T]he [district court] concluded that the Government's proof of these Defendants' ages, ” including Hersi's, “at the time of their offenses was insufficient to establish the Court's jurisdiction . . .” and “granted the Government's motion for a mistrial without prejudice” as to those defendants.). In June 2012, the district court reconsidered its order dismissing without prejudice the case against Hersi and found that because in the two months since the court had dismissed with prejudice, the government had failed to take steps to tender certification as required under the Juvenile Delinquency Act, it was appropriate to reconsider and dismiss with prejudice. United States v. Hersi, No. 3:10cr260, Dkt. No. 2554, at 5 (M.D. Tenn. June 7, 2012).

         Hersi was released from custody on July 11, 2012. FAC ¶ 53.

         The jury reached verdicts for nine defendants in the April 2012 trial. The jury acquitted six defendants on all charges and convicted three others on some charges. In December 2012, the district court granted the three convicted defendants' Federal Rule of Criminal Procedure 29 motions for acquittal, on the basis of a variance. Adan, 913 F.Supp.2d at 560, 579; see also FAC ¶ 52. In March 2016, the Sixth Circuit Court of Appeals issued an order affirming the district court's Rule 29 order. See FAC ¶ 54; United States v. Fahra, 6 ...

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