Opinion: The Supreme Court has a fresh chance to rein in police lawlessness By George F. Will Columnist 12-23-2021 at 3:09 p.m. EST When Hamdi Mohamud was a child, she was whisked away from Somalia’s violence and corruption to Minnesota. There, however, she endured prolonged incarceration because of corrupt behavior by Heather Weyker, a St. Paul police officer who had been deputized by a federal task force. In 2011, Mohamud, then 16, was a bystander at a fight involving a knife-wielding girl who was a witness in Weyker’s “investigation” of a nonexistent Somali immigrant crime ring. Judicial proceedings have found that Weyker “exaggerated or fabricated” and “misstated facts,” to have been caught “lying to the grand jury” and lying “during a detention hearing.” Also, when providing compensation for a witness. And when “endorsing the validity” of a forged document. Weyker got Mohamud arrested on suspicion of witness tampering, then filed a criminal complaint that included fabricated facts and excluded exculpatory evidence. Mohamud spent almost 25 months in federal custody. When Mohamud sued for violations of her constitutional rights, the district court denied Weyker’s claim of qualified immunity. But last year, the U.S. Court of Appeals for the 8th Circuit ruled that because Weyker acted as a federal officer, she could not be sued at all. In Texas, Kevin Byrd thinks he is likely alive only because the loaded pistol of an unhinged Department of Homeland Security agent, Ray Lamb, jammed when he pulled the trigger. In 2019, Byrd’s ex-girlfriend was injured as a passenger in a car driven by Lamb’s son when they left a bar’s parking lot and collided with a bus. Agent Lamb, who was at the bar the next morning when Byrd came to make inquiries, drew his gun, according to Byrd, and tried to smash the driver’s side window, yelling that he would “put a bullet through [Byrd’s] f---ing skull.” When police arrived, Lamb showed them his federal badge; they handcuffed Byrd and held him in a police car for several hours. But after viewing parking lot surveillance video, the police released Byrd and arrested Lamb for assault with a deadly weapon and criminal mischief — charges later dropped. When Byrd sued Lamb for a civil rights violation, a district court denied Lamb’s claim of qualified immunity. But the U.S. Court of Appeals for the 5th Circuit, bowing to its own precedents, last March held that because Lamb was a federal officer, he could not be sued. Seven U.S. circuit courts recognize a damages remedy for the kind of injuries Mohamud and Byrd suffered. But 60 million Americans live in the states covered by the two circuit courts that have turned a federal officer’s badge into a license for lawlessness: In those states, it confers almost absolute immunity from being sued for violations of constitutional rights for which nonfederal law enforcement officers can be sued. But suing even state and local officers can be maddeningly difficult, even when the violations are egregious. And even when they did not result from split-second decisions in dangerous situations, the occasions for which qualified immunity can be appropriate. The 5th and 8th circuit courts’ decisions occurred with this background: The Supreme Court has been reluctant to clarify the different but parallel qualified immunity doctrine in nonfederal cases. On Jan. 7, the Supreme Court will decide if it will hear the argument of Mohamud and Byrd — represented by the Institute for Justice’s libertarian litigators — for ending the anti-constitutional anomaly of almost impregnable immunity for federal officials who commit constitutional violations. The court should hear their case because, for 50 years, it has been shielding government officials from accountability through doctrines such as qualified immunity, which virtually nullifies accountability for all (not just federal) law enforcement and other government officials. The Fourth Amendment guarantees, inter alia, the right of the people to be secure in their “persons” from unreasonable “seizures.” The Mohamud and Byrd cases, however, show that a circuit court can decide, without rhyme or reason, that if a person violating that guarantee possesses a federal badge, the person whose rights are violated has no right to a remedy. Concurring, reluctantly, in the decision by his 5th Circuit colleagues, Judge Don Willett wrote that the implication of this circuit’s precedent is that “redress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone.” Willett said “middle-management circuit judges” such as him must follow precedent, but he hoped that “as the chorus” deploring “today’s rights-without-remedies regime” becomes “louder, change comes sooner.” Sooner could begin as soon as Jan. 7.
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