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Osman v. Weyker

United States District Court, D. Minnesota

August 9, 2017

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




         Plaintiff 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”).

         Nineteen 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.

         Weyker 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.[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). 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).

         In 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.


         The Court briefly summarizes salient factual allegations in Osman's Second Amended Complaint and some relevant facts from the court record in the Tennessee Case.

         Weyker, 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.

         Weyker 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.

         A First Superseding Indictment was filed on November 3, 2010, naming 29 defendants.[2] 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.

         On 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.

         The 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.

         The 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.

         Weyker 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.

         Other 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 minors. Id.
• 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 ¶ 35.

         Nine of 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.

         The government appealed the bench acquittals, [3] 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.

         By 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.


         The Court summarizes many of the parties' arguments to provide context for its reasoning.

         Defendants 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.

         Osman 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.


         There 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.

         a. Osman's Claims Must Be Analyzed Under the ...

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