United States District Court, D. Minnesota
N. ERICKSEN UNITED STATES DISTRICT JUDGE.
Hamdi Ali Osman alleges violations of her constitutional
rights in an investigation that led to her indictment by a
federal grand jury and her subsequent arrest. The
investigation targeted a suspected venture between mostly
Somali individuals across Minnesota, Tennessee, and Ohio
involving the sex-trafficking of minor girls, and resulted in
the criminal indictment of thirty people in the Middle
District of Tennessee in 2010-2011 (“Tennessee
Case”). Osman alleges that Defendant Heather Weyker, a
police officer for the St. Paul Police Department in
Minnesota, who was at some point specially deputized as part
of an FBI Task Force, played a key role in this
investigation. Osman alleges that Weyker fabricated evidence
about her and others throughout the investigation,
culminating in a tainted indictment that was further
corrupted by Weyker's continuing deception before the
grand jury and leading up to the trial of nine of Osman's
co-defendants. After the jury acquitted six of those
co-defendants on all charges and the trial court granted
motions for acquittal by the other three on the basis of a
variance between the proof at trial and the charged offenses,
an appellate court affirmed the court's acquittals. The
appellate court also took the highly unusual step of
suggesting that “Weyker likely exaggerated or
fabricated important aspects of th[e] story” told by
the government's star witness at trial and that the
entire case as presented at trial “is likely a
fictitious story.” United States v. Fahra, 643
Fed.Appx. 480, 482, 484 (6th Cir. 2016). Osman also sues John
Bandemer, a St. Paul Police Department sergeant who is
alleged to have been Weyker's supervisor; Robert Roes
1-3, who are alleged to be supervisory St. Paul police
officers; and the City of St. Paul (“St. Paul”).
of Osman's co-defendants in the Tennessee Case have
brought separate suits similarly alleging violations of their
constitutional rights in the investigation, their indictment,
and their arrests. A twenty-first person, who was not
indicted in the Tennessee Case but was separately arrested on
charges of intimidating a witness in that federal case,
brings another civil suit against Weyker and others for
alleged constitutional violations. A motion to consolidate
these twenty-one cases was denied on November 21, 2016.
and Bandemer move to dismiss Osman'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. 59. St. Paul, which filed an answer, 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. 68. The Court
held a hearing on these motions on May 3, 2017, and now
grants in part and denies in part Weyker and Bandemer's
motion and grants St. Paul's motion.
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). Further, to survive a motion to dismiss for failure
to state a claim or a motion for judgment on the pleadings,
“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).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Haney, 837 F.3d at 924
(quoting Iqbal, 556 U.S. at 678). Although a
pleading is not required to contain detailed factual
allegations, a “pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Id. (quoting Iqbal, 556 U.S. at 678).
“The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (citation
omitted). The court reviews “the plausibility of the
plaintiff's claim as a whole, not the plausibility of
each individual allegation.” Haney, 837 F.3d
at 924 (citation omitted).
ruling on a Rule 12(b)(6) or 12(c) motion, a court accepts
the facts alleged in the complaint as true and grants all
reasonable inferences in favor of the plaintiff.
Haney, 837 F.3d at 924; Varga v. U.S. Bank
Nat'l Ass'n, 764 F.3d 833, 838 (8th Cir. 2014).
In assessing the motion, the court “may consider some
materials that are part of the public record, ” as well
as materials that are “necessarily embraced by the
pleadings, ” including publicly available court
documents. Porous Media Corp. v. Pall Corp., 186
F.3d 1077, 1079 (8th Cir. 1999) (citations and internal
quotation marks omitted); see also Greenman, 787
F.3d at 887.
Court briefly summarizes salient factual allegations in
Osman's Second Amended Complaint and some relevant facts
from the court record in the Tennessee Case.
who is sued in her individual capacity, and Bandemer, who is
sued in his individual and official capacities, were both
officers of the St. Paul Police Department during all
relevant times. SAC ¶¶ 5-6. Weyker was an officer
in the vice unit of the police department, and Bandemer was
lead sergeant of that unit and Weyker's supervisor. SAC
¶¶ 6, 25.
became the lead St. Paul Police Department investigator of a
suspected sex-trafficking ring, in an investigation connected
with an FBI Task Force on sex-trafficking. SAC ¶ 17. On
October 20, 2010, an indictment was filed in the Middle
District of Tennessee charging Osman with several counts of
conspiracy to recruit and transport minors for sex
trafficking. SAC ¶ 18. No such conspiracy ever existed,
and Weyker and Bandemer knew it. Id.
Superseding Indictment was filed on November 3, 2010, naming
29 defendants. It charged Osman with five counts: two
counts of conspiracy to violate 18 U.S.C. § 1591(a),
which criminalizes the sex trafficking of minors, sex
trafficking by force, fraud, or coercion, and knowingly
benefiting from participating in such a sex-trafficking
venture (Counts 1 and 2); conspiring to tamper with a
witness, victim, or evidence in violation of 18 U.S.C. §
1512 (Count 3); obstructing or attempting to obstruct the
enforcement of § 1591 (Count 4); and attempting to
recruit a minor (Jane Doe Three) for sex trafficking (Count
14). See First Superseding Indictment
(“FSI”), United States v. Osman, No.
3:10cr260, Dkt. No. 36 (M.D. Tenn. Nov. 3, 2010) (submitted
as Ex. V in support of Weyker and Bandemer's Reply, Dkt.
No. 86-1). The dates alleged in the sex-trafficking
conspiracy counts spanned January 2000 through July 2010;
while the obstruction-of-justice counts focused on April 28,
2009 through May 2009; and the recruitment count alleged an
overt act on February 2, 2008.
November 8, 2010, Osman was arrested. SAC ¶ 19. Because
the indictment charged Osman with the sex-trafficking-related
offenses, she was subject to a rebuttable presumption of
pretrial detention. SAC ¶ 20. She was ordered detained
pending trial. Id. Weyker had falsely formulated
probable cause for those charges. Id.; see
also SAC ¶ 1. But for those charges, Osman would
not have been detained. SAC ¶ 20.
charges of a widespread sex-trafficking conspiracy were
baseless. “In reality, there was no child prostitution
happening, no conspiracy, and no real evidence of a criminal
organization or ‘gang, ' as noted by the Sixth
Circuit.” SAC ¶ 23. The indictment itself hints at
the falsity underlying its charges by alleging such a wide
time range, from 2000 through 2010, yet failing to allege any
overt acts before 2005. SAC ¶ 21. Moreover, Osman was a
minor during many of those years. Id.
indictment alleged that Osman attempted to entice Jane Doe
Three into engaging in commercial sex acts in February 2008
in Nashville. SAC ¶ 24; FSI ¶¶ 52-57.
Actually, around that time, she received a call from Jane Doe
Three, who said she had left her home in Minneapolis and was
coming to stay with Osman, who had recently moved to
Nashville. SAC ¶¶ 9-11. Osman said Jane Doe Three
could not stay with her long-term but could stay with her
until Jane Doe Three's mother came to pick her up, which
the mother did the next day. SAC ¶¶ 12-13. Jane Doe
Three's visit to Nashville was not solicited by Osman,
and it had nothing to do with engaging in commercial sex. SAC
¶¶ 14, 16.
was motivated to fabricate evidence by a quest for glory.
See SAC ¶¶ 25-26. The investigation was
very important to the St. Paul Police Department's vice
unit. SAC ¶ 25. So Weyker fabricated “[t]he
overwhelming majority of the material evidence supporting the
indictments in this alleged conspiracy” and fed it to
the federal prosecutors in Tennessee who were duped into
bringing the charges despite the absence of real probable
cause. See SAC ¶¶ 27, 37, 44. Throughout
the investigation, Weyker “worked with almost no
supervision” by Bandemer, Robert Roes 1-3, or anyone in
the department. SAC ¶ 38.
examples of false evidence fabricated by Weyker are:
• Weyker and Bandemer knew or had reason to know that
several of the alleged Jane Doe victims were not actually
minors, but Weyker fabricated or endorsed documents
falsifying their ages. SAC ¶ 28.
• Weyker kept rough notes throughout her investigation
that “contained little or no reference to commercial
sex.” SAC ¶ 31. Yet in police reports and
affidavits, she added references to commercial sex acts of
• Weyker “manipulated, pressured, defrauded,
coerced, and threatened the Jane Does into lying about”
key facts like their ages, whether they had sex consensually,
and whether they were paid for sex. SAC ¶ 32; see
also SAC ¶¶ 33-34. None of the Jane Does ever
engaged in any commercial sex acts at the direction of Osman
or the other Tennessee Case defendants. SAC ¶ 32.
• Weyker tried to coerce two other young women into
“framing Osman as a pimp or madam, ” but they
refused. She ignored this exculpatory evidence. SAC ¶
Osman's co-defendants in the Tennessee Case went to trial
in April 2012, and all were acquitted-six by the jury when it
returned its verdict in May 2012 and three by the court in an
order filed in December 2012, which granted in part the three
co-defendants' motions for acquittal on the basis of a
fatal variance. See SAC ¶¶ 40-42;
United States v. Adan, 913 F.Supp.2d 555, 560 (M.D.
Tenn. Dec. 19, 2012). Notably, the jury acquitted all nine
defendants on Count 2, which alleged a
“conspiracy/venture to exploit minor females for
commercial sex trafficking” based on “the same
facts as in” Count 1, but the jury convicted three
defendants on Count 1. See Id. at 578. Even after
these acquittals, Osman remained in “various forms of
federal custody.” SAC ¶ 42. In August 2012, after
that trial, a Third Superseding Indictment was filed, again
primarily alleging that Osman was engaged in a conspiracy to
recruit and transport minors for the purpose of engaging in
commercial sex acts. SAC ¶ 49. The only specific charges
against Osman related to Jane Doe Three's trip to
Nashville, and they were still supported by Weyker's
“fabricated material evidence.” SAC ¶ 50.
government appealed the bench acquittals,  and the Sixth
Circuit affirmed in an opinion that singled out Weyker
multiple times, picking up on rebukes that the district court
had made about Weyker during the pretrial proceedings. SAC
¶ 43. Osman remained in some form of pretrial detention
during the three years between the government's filing of
its appeal notice and the Sixth Circuit's issuance of
that opinion and another related opinion in March 2016, as
further trials were put on hold pending the appellate
mandates. See Osman, No. 3:10cr260, Dkt. No. 3497
(Oct. 22, 2013 order continuing trial). On March 10, 2016,
the government dismissed all remaining charges against all
remaining co-defendants, including the charges against Osman.
SAC ¶ 53. She was then permanently released from
custody. SAC ¶ 55.
February 12, 2012, because of a district court order that
discussed Weyker, her supervisors “had actual notice of
the falsity of the allegations put forth by Weyker and
others.” See SAC ¶¶ 39, 45, 46.
Moreover, St. Paul “had previously disciplined Weyker
numerous times, as well as-upon information and belief-failed
to sustain numerous accusations of similar evidence
fabrication practices in other Internal Affairs
investigations.” SAC ¶ 51. But they took no action
against her in 2012. SAC ¶¶ 47, 51. Only after the
Sixth Circuit issued its opinion in 2016 did St. Paul
announce that Weyker was put on leave. SAC ¶ 52.
SUMMARY OF ARGUMENTS
Court summarizes many of the parties' arguments to
provide context for its reasoning.
contend there are myriad reasons to dismiss this action.
See DOJ Br., Dkt. No. 61. Weyker and Bandemer argue
that all claims brought against them pursuant to 42 U.S.C.
§ 1983 must be dismissed as a matter of law because they
were acting as federal agents at the time of Osman's
indictment, arrest, and detention, and federal actors are not
subject to § 1983 liability. They then contend that the
federal analog to § 1983 under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), is not available to Osman or the other
plaintiffs. Weyker and Bandemer further assert that even if
Osman might theoretically be able to bring a § 1983 or
Bivens cause of action, her complaint still fails.
First, to the extent Osman's claims are based on
Weyker's testimony in court, they are barred by absolute
immunity. Second, the claims are otherwise barred by
qualified immunity because the facts alleged do not make out
a violation of a constitutional right that was clearly
established at the time of the alleged violation. Bandemer
argues that Osman has not plausibly alleged that he, as
Weyker's supervisor, violated Osman's rights.
Bandemer and Weyker further argue that Osman cannot bring
claims for violations of due process because, first, they are
barred by Parratt v. Taylor, 451 U.S. 527 (1981), in
that Osman had adequate post-deprivation process. Second, the
recent Supreme Court decision in Manuel v. City of
Joliet, 137 S.Ct. 911 (2017), and other binding
precedent hold that Osman's allegations sound, if at all,
in the Fourth Amendment. See also DOJ Reply, Dkt.
No. 85. And she has not stated a claim for a Fourth Amendment
violation because she has not plausibly alleged that there
was not arguable probable cause to arrest her. Finally, they
contend that because Osman was indicted for not just
allegedly fabricated sex-trafficking-related crimes but also
for separate crimes, and because her complaint does not
plausibly allege a lack of probable cause for her indictment
on those counts, qualified immunity bars the entire Fourth
Amendment cause of action. Separately, St. Paul argues that
Osman fails to state a claim against the City of St. Paul or
the Robert Roes because she has not plausibly alleged
supervisory liability or municipal liability under Monell
v. Department of Social Services of the City of New
York, 436 U.S. 658 (1978). See St. Paul Br.,
Dkt. No. 70. Additional arguments were mooted by stipulation.
See Dkt. No. 83 ¶¶ 7-8.
argues that she plausibly alleged that Weyker fabricated
evidence to create the false pretense of probable cause for
arrest, and her fabrications violated a clearly established
constitutional right under either the Fourth or Fourteenth
Amendment. Osman Opp. to DOJ Mot. to Dismiss (“Osman
DOJ Opp.”), Dkt. No. 79. In support of her Fourth
Amendment argument, she states that without Weyker's
fabricated evidence, there was no arguable probable cause to
arrest her. Osman maintains that all of the charges on which
she was indicted, including the non- sex-trafficking-related
charges, were fabricated and entirely without factual
support. Moreover, these other charges have no bearing on the
analysis to the extent that she alleges violation of the
substantive due process rights under the Fourteenth or Fifth
Amendment. Id. at 32. At oral argument, Osman
maintained that she could still pursue a substantive due
process claim even after Manuel, and that the two
constitutional theories are not mutually exclusive. She
further disputes that the Parratt doctrine applies
to bar her due process claims. As for whether Osman's
claims are properly brought under § 1983 or
Bivens, she contends that because at least some of
Weyker's alleged fabrication of evidence occurred before
she was federally deputized, § 1983 is the proper
vehicle, but that Osman can alternatively bring her claims
under Bivens. She also argues that she alleged that
Bandemer, acting in his capacity as Weyker's supervisor
on the St. Paul force, knew that Weyker was fabricating
evidence and deliberately did nothing to stop Weyker.
Finally, Osman rejoins that Defendants are not entitled to
absolute immunity because she alleges that Weyker and
Bandemer fabricated evidence separate from and long before
any false grand jury testimony. In response to St. Paul's
arguments, Osman asserts that she has plausibly alleged that
Bandemer intentionally assisted Weyker with her fabrication
and that he and other department supervisory officers were
deliberately indifferent to a pattern or custom of evidence
fabrication by Weyker and her unit. See Osman Opp.
to St. Paul Mot., Dkt. No. 73.
are two threshold questions: whether Osman's claims
should be brought pursuant to 42 U.S.C. § 1983 or
Bivens, and whether Osman's claims sound in the
Fourth Amendment or substantive due process or both. Because
Defendants assert the affirmative defense of qualified
immunity, the Court must decide whether the facts alleged
“make out a violation of a constitutional right”
and whether that right was clearly established at the time of
the alleged violation. See Greenman v. Jessen, 787
F.3d 882, 887 (8th Cir. 2015) (citation omitted). Determining
which constitutional right is implicated by the allegations
is therefore the first step in the Court's analysis.
Osman's Claims Must Be Analyzed Under the ...