Absolutely Scary: How Cross-Deputization Allows Corrupt State Officials to Enjoy Absolute Immunity

For decades, federal law enforcement agencies, such as the U.S. Marshals Service, the FBI, and the DEA, have been in the practice of deputizing state and local law enforcement officers as federal agents to serve on joint state-federal task forces. The stated purpose of these joint task forces is to combine resources to combat issues such as terrorism, gang violence, or human trafficking. However, what happens when a cross-deputized officer commits a crime?

Heather Weyker, a police officer with the St. Paul Police Department, was one such cross-deputized officer. In 2010, Weyker was working on the case of her career: a wide-spread child sex trafficking ring perpetrated by Somali citizens, many of them refugees to the United States. Weyker’s investigation into this trafficking ring eventually took her across state lines, and the FBI cross-deputized her as a Special Deputy U.S. Marshal to serve on a joint task force charged with bringing down the conspiracy. Through Weyker’s work, thirty people were arrested and sent to jail. The only problem? As a trial court overseeing the prosecutions discovered (and as the Sixth Circuit Court of Appeals confirmed), the evidence Weyker provided was either entirely fabricated or greatly exaggerated. She had manufactured the trafficking ring to bring prestige to herself and her department. While all those incarcerated were ultimately released without charges, none have been able to recover damages for their unlawful pre-trial detentions. This includes Hamdi Mohamud, an innocent Somali teenager who spent over two years behind bars after unwittingly getting caught in Weyker’s fabricated web.

Mohamud sued Weyker for the egregious violations of her Fourth Amendment rights, bringing damages claims under both 42 U.S.C. § 1983, which holds state and local officers accountable for constitutional violations committed under color of state law, and under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which created an implied cause of action for constitutional violations committed by federal officers.  The District Court, however, has dismissed both claims, concluding that because Weyker was temporarily imbued with limited federal authority as a cross-deputized officer, Weyker was acting under color of federal law only. Therefore, according to the court, Weyker was insulated from § 1983 liability. The district court also concluded that Weyker cannot be held accountable for acts committed as a federal official.  Indeed, following the Supreme Court’s 2022 ruling in Egbert v. Boule, recovering civil damages from federal officials is virtually impossible for most plaintiffs. The result is that Weyker has faced zero civil penalties for her corrupt actions. Notably, she has also faced zero professional penalties and, by all appearances, remains employed as a police officer earning a six-figure salary.

Under this dangerous logic, other cross-deputized officers have escaped accountability for violating the constitutional rights of Americans. To provide just a handful of examples from within the last year, one cross-deputized local police officer entered a home with no probable cause, assaulted the homeowner, and proceeded to search the home. In another incident, multiple cross-deputized officers entered a home without a warrant, and shot the homeowner multiple times, causing serious injuries. Finally, a cross-deputized officer, in executing a state arrest warrant, violently assaulted an unarmed and restrained individual who was the subject of the warrant. In all three instances, claims were brought under § 1983, and in all three instances, the courts found no liability, concluding that the state and local officers were insulated from accountability solely by virtue of their cross-deputization.

Mohamud’s case is currently on appeal before the Eighth Circuit. NCLA has submitted an amicus curiae brief highlighting the dangers of allowing the federal government to bestow what is effectively absolute immunity on state and local law enforcement officers via task force cross-deputization. NCLA argues that any categorical rule that cross-deputized officers act exclusively under color of federal law, regardless of the specific facts of the case, turns a blind eye to the realities of the state-federal authority wielded by such officers and turns § 1983 on its head.  If § 1983 is no longer a remedy available to plaintiffs with claims against cross-deputized officers, there will be nothing to meaningfully deter rogue officers from abusing their authority. The message will be sent to the federal government that it can simply immunize state and local police officers to serve the federal government’s purposes as temporary federal officials via assignment to task forces.  And then, no matter how egregious the unconstitutional act committed by such officers, the government (whether federal or state) can rest assured that it will never have to pay a dime, while plaintiffs will be left with no route to recovery.

Hopefully, the court will firmly reject the district court’s profligate approach to cross-deputization and allow Ms. Mohamud to proceed with her case against Officer Weyker to pursue justice long overdue.

July 24, 2024