Police empowered to lie about investigations after federal appeals court ruling

(Reuters) - A federal appeals court recently decided that a St. Paul, Minnesota, cop was shielded from a lawsuit that alleged she fabricated a witness tampering charge because she was working on a federal task force at the time, in a decision that further expands the already vast immunities granted to federal law enforcement.

The case at the 8th U.S. Circuit Court of Appeals was against officer, Heather Weyker, a cop who, in addition to the witness tampering charges, "likely" had fabricated a non-existent child sex-trafficking ring and apparently falsified testimony in court and to a grand jury, according to multiple federal court rulings and news reports. The investigation of the dubious sex-trafficking ring led to the false arrest of 30 Somali refugees, some of whom spent years in federal prison, those rulings found.

A federal district court in Tennessee ruled that "Officer Weyker likely exaggerated or fabricated important aspects of this story," and the 6th U.S. Circuit Court of Appeals said that Weyker's accusations were "likely a fictitious story," according to a March 2016 opinion from the 6th Circuit. Many of the people arrested were children at the time — young immigrants, 17 to 21 years old.

With that backdrop, the July 14 decision from the 8th Circuit case brought by Ifrah Yassin, who sued Weyker over the witness tampering charges, is a dangerous extension of the U.S. Supreme Court’s precedents on law enforcement powers and immunities, and makes it more likely that we’ll continue to see incidents of unjustified police abuse, especially against non-white Americans. What's more, the ruling is especially alarming given the history of police abuse among specialized, multi-jurisdictional task forces.

Weyker declined my request for comments.

The high court ruled decades ago that police have fairly broad leeway to use deception or trickery – to lie, more simply — to induce a confession and has maintained those holdings despite decades of social science research and actual data showing those methods commonly produce false confessions. (The key rulings were Frazier v. Cupp, in 1969, and Oregon v. Mathiason, in 1977).

And now, the 8th Circuit's decision paves the way for police officers on federally funded task forces to avoid suit even if they lie, manipulate witnesses, falsify evidence or frame innocent people.

“Even if [Yassin] could establish that Weyker was lying — and we can assume that she was — it would not have changed the fact that she did so in her capacity as a federal agent, not as a St. Paul police officer,” Judge David Stras wrote for the court.

Weyker was therefore entitled to immunity because, as the Supreme Court held in 2017, individual federal employees can only be sued if their misdeeds are basically exactly the same as in three previous cases where the court found constitutional violations. (That holding came in Ziglar v. Abassi.)

In 2010, Weyker and government prosecutors alleged a vast child sex trafficking conspiracy, spanning four states and 10 years. They produced more than 200 witnesses, hours of recorded conversations, and proposed a nearly four-month long trial.

The trial lasted six weeks. Only nine of the 30 people indicted were ultimately tried, and each was acquitted.

Yassin became involved only by happenstance — after she was attacked by a witness in Weyker’s investigation, according to the 8th Circuit’s opinion. The witness contacted Weyker, who intervened on the witness' behalf. Weyker told a responding officer that Yassin was out to intimidate her witness — which wasn’t true, according to the 8th Circuit and a number of other courts. Weyker then repeated the misstatement in a federal complaint that ultimately put Yassin in federal prison for more than two years, before she was tried and acquitted, according to the 8th Circuit.

Victims have sought to hold Weyker accountable in more than 20 civil lawsuits since then, but she has beat every single case due to federal immunity.

The 8th Circuit issued two separate, somewhat circular rulings in Yassin’s case.

The court determined that Weyker couldn’t be sued as a St. Paul cop because she was deputized as a federal officer while serving on the joint task force. It also held that she couldn’t be sued in her federal capacity because she is entitled to immunity.

The 8th Circuit held explicitly that Weyker’s fabrications were part-and-parcel of her law enforcement duties. Weyker acted “within the scope” of her duties “by trying to keep a federal witness out of trouble,” Stras wrote. “The same goes for her statements in the affidavit she prepared the next day.”

Jeremy Ellison, interim chief of the St. Paul police, told me that Weyker was never formally disciplined.

Department officials said in 2016 that they put Weyker on administrative leave and opened an internal investigation, but she was back at work in less than a week in a “noninvestigative capacity,” the St. Paul Pioneer Press reported in March that year.

That internal investigation is now closed, and Weyker is still employed by the department as a sergeant and property crimes investigator, Ellison said.

The Supreme Court created qualified immunity in the late 1960s and has continually refined the doctrine, making it virtually impossible by now to sue local police for even clear violations of constitutional rights. The odds of successfully suing federal law enforcement officers are even slimmer.

The court’s newly constituted, ultra-conservative majority has also recently created more specific carveouts in constitutional law for law enforcement.

As of last month, Americans can no longer sue individual Customs and Border Protection agents at all, for any kind of constitutional violations. And, local police can no longer be sued for using statements and other evidence obtained without issuing the "Miranda" warnings.

The 8th Circuit’s ruling continues the trend of extending police powers — and shrinking the scope of Americans’ civil rights.

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