               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 17-3207
                      ___________________________

                             Yasin Ahmed Farah

                                      Plaintiff - Appellee

                                        v.

   Heather Weyker, in her individual capacity as a St. Paul Police Officer

                                    Defendant - Appellant

 The City of St. Paul; John Does 1–5, in their individual capacities as St. Paul
Police Officers; Richard Roes 1–5, in their individual capacities as federal law
                             enforcement officers

                                           Defendants

                           ------------------------------

                       The Human Trafficking Institute

                             Amicus on Behalf of Appellant
                      ___________________________

                              No. 17-3208
                      ___________________________

                                  Ifrah Yassin

                                      Plaintiff - Appellee

                                        v.
   Heather Weyker, individually and in her official capacity as a St. Paul Police
                                    Officer

                                       Defendant - Appellant

The City of St. Paul; John Does 1–2, individually and in their official capacities as
St. Paul Police Officers; John Does 3–4, individually and in their official capacities
             as supervisory members of the St. Paul Police Department

                                              Defendants

                              ------------------------------

                          The Human Trafficking Institute

                                Amicus on Behalf of Appellant
                         ___________________________

                                 No. 17-3209
                         ___________________________

                                 Hamdi Ali Osman

                                         Plaintiff - Appellee

                                           v.

      Heather Weyker, in her individual capacity as a St. Paul Police Officer

                                       Defendant - Appellant

 The City of St. Paul; John Bandemer, in his individual and official capacities as a
    St. Paul Police Sergeant; Robert Roes 4–6, in their individual and official
      capacities as supervisory members of the St. Paul Police Department

                                              Defendants

                              ------------------------------

                                           -2-
                        The Human Trafficking Institute

                               Amicus on Behalf of Appellant
                        ___________________________

                                No. 17-3210
                        ___________________________

                           Ahmad Abnulnasir Ahmad

                                       Plaintiff - Appellee

                                         v.

     Heather Weyker, in her individual capacity as a St. Paul Police Officer

                                     Defendant - Appellant

The City of St. Paul; John Bandemer, in his individual and official capacities as a
St. Paul Police Sergeant; John Does 1–2, in their individual capacities as St. Paul
   Police Officers; John Does 3–4, in their individual and official capacities as
             supervisory members of the St. Paul Police Department

                                            Defendants

                            ------------------------------

                        The Human Trafficking Institute

                               Amicus on Behalf of Appellant
                        ___________________________

                                No. 17-3212
                        ___________________________

                             Bashir Yasin Mohamud

                                       Plaintiff - Appellee

                                         -3-
                                         v.

     Heather Weyker, in her individual capacity as a St. Paul Police Officer

                                     Defendant - Appellant

The City of St. Paul; John Bandemer, in his individual and official capacities as a
St. Paul Police Sergeant; John Does 1–2, in their individual capacities as St. Paul
   Police Officers; John Does 3–4, in their individual and official capacities as
             supervisory members of the St. Paul Police Department

                                            Defendants

                            ------------------------------

                        The Human Trafficking Institute

                               Amicus on Behalf of Appellant
                        ___________________________

                                No. 17-3213
                        ___________________________

                                Mohamed Amalle

                                       Plaintiff - Appellee

                                         v.

     Heather Weyker, in her individual capacity as a St. Paul Police Officer

                                     Defendant - Appellant

The City of St. Paul; John Bandemer, in his individual and official capacities as a
St. Paul Police Sergeant; John Does 1–2, in their individual capacities as St. Paul
   Police Officers; John Does 3–4, in their individual and official capacities as
             supervisory members of the St. Paul Police Department

                                            Defendants

                            ------------------------------
                          The Human Trafficking Institute

                                  Amicus on Behalf of Appellant
                                   ____________

                     Appeals from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                          Submitted: November 14, 2018
                              Filed: June 12, 2019
                                 ____________

Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
                         ____________

STRAS, Circuit Judge.

      If a federal law-enforcement officer lies, manipulates witnesses, and falsifies
evidence, should the officer be liable for damages? We hold that the Constitution
does not imply a cause of action under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), so the answer must come from
Congress, not from us. And Congress has, so far, answered no.

                                          I.

       In 2008, police officers in St. Paul, Minnesota, were investigating a suspected
sex-trafficking operation involving minors. After one alleged victim was reported
missing in Minneapolis and then turned up in Nashville, federal investigators in
Tennessee became involved too. The government eventually charged thirty people
with a variety of crimes allegedly arising out of an extensive conspiracy that spanned
ten years and four states.



                                         -5-
        The cases against nine of the defendants, including Ahmad Ahmad and
Mohamed Amalle, proceeded to trial in the Middle District of Tennessee. The jury
acquitted some, while the district court acquitted the others after the jury found them
guilty. See United States v. Adan, 913 F. Supp. 2d 555, 579 (M.D. Tenn. 2012). In
affirming, the Sixth Circuit expressed “acute concern, based on [a] painstaking
review of the record, that this story of sex trafficking and prostitution may be
fictitious.” United States v. Fahra, 643 F. App’x 480, 484 (6th Cir. 2016)
(unpublished). Prosecutors dropped the charges against the remaining defendants,
including Yasin Farah, Hamdi Osman, and Bashir Mohamud.

       Ahmad, Amalle, Farah, Osman, and Mohamud each sued Officer Heather
Weyker, who had led the investigation for the St. Paul Police Department. They
accused Weyker of exaggerating and inventing facts in reports, hiding evidence that
would have exonerated them, and pressuring and manipulating the alleged victims
into lying. She deceived prosecutors, the grand jury, and other investigators,
according to the complaints filed in each case, about the ages of the alleged victims,
whether the victims were coerced into sex, and the relationships among the supposed
conspirators. By doing so, the plaintiffs claimed, Weyker caused them to be charged
and detained for periods ranging from four months to over three years, all in violation
of the Fourth Amendment’s prohibition on unreasonable seizures. See Manuel v.
City of Joliet, 137 S. Ct. 911, 919–20 (2017).

       A sixth plaintiff, Ifrah Yassin, was not part of the alleged federal conspiracy.
Rather, according to Yassin’s complaint, she was arrested for witness intimidation
based on false information from Weyker. The arrest arose out of a fight between a
cooperating witness in the sex-trafficking investigation and one of Yassin’s friends.
After the fight started, Yassin called 911 and the witness called Weyker. Weyker
then told the officer responding to the 911 call that, based on “information and
documentation,” Yassin and her friends were trying to intimidate the witness and
prevent her from cooperating in a federal investigation. Relying on Weyker’s tip,


                                         -6-
the officer arrested Yassin, who was later charged with witness tampering and
obstruction of justice. A jury acquitted her of both charges.

      The crux of Yassin’s case against Weyker is that no “information and
documentation” ever existed. Rather, Weyker caused Yassin’s unlawful arrest and
detention by lying about the reason for the altercation.

       All six, including Yassin, sought damages. Recognizing that Weyker had
been deputized as a U.S. Marshal toward the conclusion of the joint investigation,
they pleaded causes of action under both 42 U.S.C. § 1983, which authorizes
constitutional claims against state officials; and Bivens, which operates similarly
against federal officials, notwithstanding the absence of a statutory cause of action,
see 403 U.S. at 397. Weyker moved to dismiss, arguing that neither theory was
viable. She reasoned that section 1983 did not apply to her because she was a
deputized federal official. As for Bivens, she claimed that nothing she was accused
of doing was actionable. And even assuming the plaintiffs could sue her, she added,
she was entitled to qualified immunity because the facts they alleged did not show
that she had violated their clearly established constitutional rights.

      The district court disagreed. It concluded that even if Weyker was right that
Bivens was the plaintiffs’ only remedy, the claims against her could still proceed.
Weyker immediately appealed, see Wilkie v. Robbins, 551 U.S. 537, 549 n.4 (2007)
(holding that the courts of appeals have jurisdiction to hear interlocutory appeals
challenging “the recognition of the entire [Bivens] cause of action” in qualified-
immunity cases), and we consolidated all six appeals in light of the overlapping facts
and legal issues involved.

                                         II.

      We begin with the five plaintiffs charged in the original conspiracy
prosecution. The threshold question is whether their cases are the type for which a

                                         -7-
Bivens remedy is available. See, e.g., Bush v. Lucas, 462 U.S. 367, 390 (1983)
(holding that a federal employee demoted for exercising his First Amendment rights
did not have a Bivens claim). We address this “purely legal question” de novo. Neb.
Beef, Ltd. v. Greening, 398 F.3d 1080, 1083 (8th Cir. 2005).

        On only three occasions has the Supreme Court implied a cause of action
under Bivens. See Carlson v. Green, 446 U.S. 14, 16–18 (1980); Davis v. Passman,
442 U.S. 228, 248 (1979); Bivens, 403 U.S. at 397. Since then, the Court has become
“far more cautious” and has, in fact, “‘consistently refused to extend Bivens to any
new context or new category of defendants’” for almost forty years. Ziglar v.
Abbasi, 137 S. Ct. 1843, 1855, 1857 (2017) (quoting Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 68 (2001)). Recognizing that the Bivens inquiry is about “who should
decide” whether to create a new cause of action, the Court has answered “most often
. . . Congress.” Id. at 1857 (emphasis added) (citation omitted).

      Determining whether an implied cause of action is available under Bivens
involves two steps. First, we must determine whether the cases before us present
one of “the three Bivens claims the Court has approved in the past” or whether,
instead, allowing the plaintiffs to sue would require us to extend Bivens to a “new
context.” Id. at 1859–60. If there is a previously recognized Bivens claim alleged,
then the cases may proceed. If not, then we advance to the second step and ask
whether any “special factors counsel[] hesitation” before implying a new cause of
action “in the absence of affirmative action by Congress.” Id. at 1857 (citation
omitted). Only if we are confident that “the Judiciary is well suited . . . to consider
and weigh the costs and benefits of allowing a damages action” will we take it upon
ourselves to do so. Id. at 1858. Otherwise, we will leave the balancing to Congress.

                                          A.

      No Supreme Court case exactly mirrors the facts and legal issues presented
here. See id. at 1859–60 (explaining that the comparison is to Supreme Court cases).

                                         -8-
The one that comes closest is Bivens itself. See Bivens, 403 U.S. at 389–90; cf.
Carlson, 446 U.S. at 16 n.1, 18–23 (allowing a claim against federal prison officials
who failed to treat a prisoner’s asthma); Davis, 442 U.S. at 230, 236–48 (permitting
a congressman’s administrative assistant to sue after he fired her). Bivens involved
a claim against federal agents for an illegal arrest and warrantless search. See 403
U.S. at 389. Here, the allegations are that a federally deputized officer duped
prosecutors and a grand jury into believing that the plaintiffs were part of a multi-
state sex-trafficking conspiracy.

      To determine whether the differences “are meaningful enough to make [this]
context a new one,” the Supreme Court has instructed us to consider several factors,
including:

      the rank of the officers involved; the constitutional right at issue; the
      generality or specificity of the official action; the extent of judicial
      guidance as to how an officer should respond to the problem or
      emergency to be confronted; the statutory or other legal mandate under
      which the officer was operating; the risk of disruptive intrusion by the
      Judiciary into the functioning of other branches; [and] the presence of
      potential special factors that previous Bivens cases did not consider.

Abbasi, 137 S. Ct. at 1859–60 (emphasizing that this list is illustrative, not
“exhaustive”). The cases before us are meaningfully different from Bivens in three
ways.

      First, Weyker’s alleged misdeeds are different from those in Bivens, even if
the “constitutional right at issue” is the same. Id. at 1860. The agents in Bivens
handcuffed and strip-searched the plaintiff and combed through his apartment, all
without a warrant. See 403 U.S. at 389. Weyker did none of these things, nor
anything similar. She spoke to witnesses, drafted reports, and shared information
with prosecutors and other investigators. These information-gathering and case-


                                         -9-
building activities are a different part of police work than the apprehension,
detention, and physical searches at issue in Bivens.

       Second, the mechanism of injury is different. In Bivens, the plaintiff’s
injuries—“humiliation, embarrassment, and mental suffering”—were directly
caused by the officers’ conduct. Id. at 389–90. Here, by contrast, Weyker’s actions
injured the plaintiffs through a series of intervening steps. And those intervening
steps involved decisions by independent legal actors—the prosecutors who chose to
pursue charges against the plaintiffs, the grand jury that voted to indict them, and the
judges and magistrates who approved their continued detention. This indirect
mechanism of injury bears little resemblance to the straightforward claims from
Bivens.

       Third, recognizing an implied cause of action here would pose a greater risk
of interference with the other branches of government than it did in Bivens. See
Abbasi, 137 S. Ct. at 1860. Probing the causal chain in cases like these would
involve delving into the evidence before numerous decisionmakers, including
federal investigators, prosecutors, and the grand jury. The initial step would be to
discover what Weyker said, to whom she said it, and when. The information Weyker
provided to investigators, prosecutors, and the grand jury would then need to
undergo examination for its truth or falsity. For any false information she provided,
the question would be whether the evidence was material. The determination would
center on whether other evidence available to investigators and prosecutors would
have independently led them to charge or detain the plaintiffs. Cf. Williams v. City
of Alexander, 772 F.3d 1307, 1311 (8th Cir. 2014) (citing Franks v. Delaware, 438
U.S. 154 (1978)). Only then, after probing executive charging decisions and peeking
behind the curtain of customarily secret grand-jury proceedings, would the plaintiffs
be able to prove their cases. Nothing so intrusive was required to prove the claims
in Bivens.



                                         -10-
      To be sure, similarities exist. Bivens involved alleged violations of the Fourth
Amendment’s prohibition on “unreasonable searches and seizures,” and so do these
cases. 403 U.S. at 389 (quoting U.S. Const. amend. IV); see also Abbasi, 137 S. Ct.
at 1856 (stressing “the continued force . . . of Bivens in the search-and-seizure
context in which it arose”). But treating all search-and-seizure cases the same would
contradict the Supreme Court’s direction that a context can be new even if it involves
the same constitutional right as an existing case. See Abbasi, 137 S. Ct. at 1859.

       Nor is the context the same just because Weyker and the agents in Bivens were
“street-level” investigators whose alleged misconduct only impacted a single
investigation, rather than senior officers engaged in policymaking activities. It is
true, as Osman and Farah point out, that the Supreme Court emphasized “the rank
of the officers involved” and “the generality or specificity of the official action” in
its most recent refusal to extend Bivens. See id. at 1860–61 (addressing claims
against Justice Department officials and prison wardens based on post-9/11
detention policies and conditions). Even so, the Court left no doubt that these were
just two features among many that could meaningfully differentiate potential causes
of action. See id. at 1859–60.

       The three differences we have identified—the sorts of actions being
challenged, the mechanism of injury, and the kinds of proof those injuries would
require—are “meaningful enough” that we cannot simply assume that the same
reasons that justified permitting the plaintiff to recover damages in Bivens apply
equally here. Id. at 1859. Allowing the plaintiffs to pursue damages claims in this
context would mean extending Bivens, no matter how “modest” the extension may
be, id. at 1864, so we must decide whether this is one of the unusual situations in
which we are “well suited . . . to consider and weigh the costs and benefits of
allowing a damages action to proceed,” id. at 1858.




                                         -11-
                                          B.

        According to the Supreme Court, we must now determine at the second step
whether anything about these cases “causes [us] to pause before acting without
express congressional authorization.” Id. It does not take much to make us pause,
because “[i]n most instances, . . . [Congress] is in the better position to consider if
the public interest would be served by imposing a new substantive legal liability.”
Id. at 1857 (internal quotation marks and citation omitted). Indeed, recognizing the
Court’s “caution” in this regard, we have adopted a “presumption against judicial
recognition of direct actions for violations of the Constitution by federal officials.”
Neb. Beef, 398 F.3d at 1084 (citation omitted).

       Among the “special factors” that have been decisive in the past, Abbasi, 137
S. Ct. at 1857–58, the most relevant here are whether a Bivens action “would require
courts to interfere in an intrusive way with sensitive functions of the Executive
Branch,” id. at 1861; whether Congress has taken other action in the area without
authorizing a damages remedy, see id. at 1862; and whether a “remedial structure”
is already in place to address constitutional violations, even if it does not go as far
as a Bivens remedy would, id. at 1858, 1862–63. See also id. at 1858, 1861
(identifying additional “special factors”). When factors like these are present, the
Supreme Court has explained, it is “less probable that Congress would want the
Judiciary to entertain a damages suit.” Id. at 1858.

                                          1.

      The first special factor present here is a variation on one the Supreme Court
has already identified: the risk of burdening and interfering with the executive
branch’s investigative and prosecutorial functions. Cf. id. at 1861; see also id. at
1858 (recognizing that other special factors will appear in future cases, but that they
are “difficult to predict in advance”). As we explain above, for these plaintiffs to
prevail, they would need to show that Weyker’s allegedly false information was

                                         -12-
what established probable cause for their arrests and detention. Cf. Williams, 772
F.3d at 1311 (explaining that to succeed on a false-arrest claim against an officer
who has lied in a warrant application, a plaintiff must prove that “[o]nce the
purportedly false statements are removed, the affidavit’s remaining content does not
support a finding of probable cause”).

      This type of showing would invite a wide-ranging inquiry into the evidence
available to investigators, prosecutors, and the grand jury. It would not just be
limited to the theories actually pursued by the prosecutors, because the question is
not whether their theories had support. Rather, it would focus on whether there was
probable cause to charge the plaintiffs with a crime that would have justified their
detention pending trial. See Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (“The
Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be
taken in certain circumstances, whatever the subjective intent [of the officials
involved].” (brackets omitted) (quoting Whren v. United States, 517 U.S. 806, 814
(1996))); Keil v. Triveline, 661 F.3d 981, 986 (8th Cir. 2011). Reconstructing the
record before the grand jury, contemplating a panoply of federal crimes, and
determining whether it would have been reasonable to think that the plaintiffs
committed any of them would be among the likely steps in the analysis.

       Take Farah’s case, for example. He assures us that there would be no need to
look at “the great bulk” of the grand-jury evidence, because Weyker was his only
point of contact with investigators, so any possible support for the charges must have
come from her. But to verify this assertion, the factfinder still has to know what was
in the grand-jury record. Only if there really is nothing implicating Farah—or at
least nothing that could have supported probable cause—in the police reports,
witness statements, transcripts, and other materials will the factfinder be able to
determine that Weyker’s alleged misdeeds caused his injuries.

      To be sure, sometimes courts must undertake this sort of review. Indeed, if
the plaintiffs’ section 1983 claims turn out to be viable, see infra Part II.C, the

                                        -13-
district court may have to do so in these cases. But such after-the-fact inquiries still
pose a risk of intrusion on executive-branch authority to enforce the law and
prosecute crimes, not to mention encroach on the usual secrecy of charging decisions
and grand-jury proceedings. That some section 1983 cases pose similar risks just
reflects that Congress has balanced the costs and benefits and decided that the
potential encroachment is worth it. The fact that recognizing the plaintiffs’ claims
in these cases would require us to make this determination on our own, without any
congressional guidance, is reason enough “to pause before acting.” Abbasi, 137 S.
Ct. at 1858.

                                          2.

       Another “special factor counselling hesitation” is what Congress has already
done to address injuries of the sort the plaintiffs have allegedly suffered. Id. The
so-called Hyde Amendment allows courts to award attorney fees to criminal
defendants who prevail against “vexatious, frivolous, or . . . bad[-]faith” positions
taken by the government. Act of Nov. 26, 1997, Pub. L. No. 105-119, § 617, 111
Stat. 2440, 2519 (codified at 18 U.S.C. § 3006A note). And those who are wrongly
convicted and sentenced may seek release under 28 U.S.C. § 2255 or sue the
government for damages, see 28 U.S.C. § 1495 (creating a cause of action for
damages “by any person unjustly convicted of an offense against the United States
and imprisoned”); see also id. § 2513(e) (capping the damages available for
wrongful imprisonment).

      Understandably, the plaintiffs are not satisfied with these options, which are
unavailable to them. They cannot recover attorney fees, for example, because they
were represented by appointed counsel. See § 617, 111 Stat. at 2519 (excepting
“case[s] in which the defendant [was] represented by assigned counsel paid for by
the public”). Nor can they seek release or damages because they were never
convicted. See 28 U.S.C. § 2255(a) (limiting relief to “prisoner[s] in custody under
sentence of a [federal] court”); id. § 1495 (requiring “convict[ion]” and

                                         -14-
“imprison[ment]”). But far from supporting their position, the plaintiffs’
ineligibility for these remedies actually cuts against recognizing a new cause of
action.

       The reason is that it would upset the existing “remedial structure.” Abbasi,
137 S. Ct. at 1858. These plaintiffs are ineligible for relief under the unjust-
conviction statute precisely because they were acquitted or had their charges
dropped before trial. But had they been convicted and imprisoned, they would be
eligible to seek damages under the unjust-conviction statute. The fact that Congress
has expressly provided a damages remedy for some victims of this particular type of
injury, but not for others, suggests that it considered the issue and made a deliberate
choice. This is a “convincing reason” not to imply a second, distinct “freestanding
remedy in damages.” Id. (citation omitted).

       The plaintiffs complain that these alternatives would not have offered them
“roughly similar compensation” or provided “roughly similar incentives” to deter
officers from violating the law. Minneci v. Pollard, 565 U.S. 118, 130 (2012). They
forget, however, that Bivens remedies are the exception, and if they were available
every time “roughly similar” remedies are not, then Bivens would become the rule,
available in all but the most unusual constitutional cases. To be sure, the availability
of “roughly similar” remedies was discussed in one Supreme Court decision, see id.,
but since then, no case has mentioned it, much less relied on it. See Abbasi, 137 S.
Ct. at 1858, 1862–63 (saying nothing about similarity or comparability, despite
addressing alternative remedies in depth). To the contrary, the Court has since made
clear that even remedies that provide no compensation for victims and little
deterrence for violators, such as injunctions and writs of habeas corpus, trigger the
general rule that, “when alternative methods of relief are available, a Bivens remedy
usually is not.” Id. at 1863 (citing several cases, including Minneci, 565 U.S. at 124–
26).

                                    *      *      *

                                         -15-
       The bottom line is that a balance must be struck between the costs and benefits
of allowing plaintiffs who have been wrongfully charged and detained based on
allegedly fabricated evidence to sue for damages. The costs of implying a cause of
action include exposing federal officials to “the complex sphere of litigation,” id. at
1858, and intruding on prosecutorial functions. Among the benefits, however, are
deterring misconduct, protecting the integrity of the criminal adjudicatory process,
and preventing innocent people from being illegally detained. It is not our place to
weigh these competing policy concerns. Rather, having identified “sound reasons
to think Congress might doubt the efficacy or necessity of a damages remedy,” we
“must refrain from creating [one]” ourselves. Id.

                                          C.

       Declining to extend Bivens does not necessarily end these five cases, however,
because the plaintiffs also brought section 1983 claims against Weyker. Before the
district court, Weyker argued that she was not acting under color of state law when
she committed her alleged misdeeds, because she had been deputized as a federal
officer by the time the plaintiffs were indicted. See Magee v. Trs. of Hamline Univ.,
747 F.3d 532, 535 (8th Cir. 2014). This argument, which the district court did not
address, potentially requires a fact-intensive analysis of “the nature and
circumstances” of Weyker’s alleged misconduct and its “relationship . . . to the
performance of [her] official [state] duties.” Id. (citation omitted); see also West v.
Atkins, 487 U.S. 42, 49 (1988) (“The traditional definition of acting under color of
state law requires that the defendant in a § 1983 action have exercised power
‘possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.’” (quoting United States v. Classic, 313 U.S.
299, 326 (1941))). For this reason, and because the parties have not fully briefed




                                         -16-
this question on appeal, we remand for the district court to consider the applicability
of section 1983 in the first instance.1

                                         III.

       Yassin’s case is different. Her primary theory is that she was unlawfully
arrested because Weyker falsely told another police officer that she was trying to
intimidate a federal witness. We need not decide whether this theory of liability
would require us to extend Bivens, because Weyker has not meaningfully briefed the
point on appeal. See White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017).

       Even if we assume that Yassin’s unlawful-arrest claim is viable under Bivens, 2
however, Weyker still claims that she is entitled to qualified immunity for every
action she took during the investigation. So we must address the two familiar
qualified-immunity questions: assuming Yassin’s allegations are true, did Weyker
violate her constitutional rights? And if so, were those rights clearly established?
See Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013). On both
points, our review is de novo, see id., and our answer is yes.

        First, Yassin alleged a constitutional violation. According to her complaint,
the officer who arrested her had no reason to suspect her of a crime until Weyker
lied to him. In fact, the complaint suggests that the facts known to the officer led
him to treat her as a victim, at least until he heard from Weyker. These allegations,
if true, would establish an unlawful-arrest claim under the Fourth Amendment. See
Williams, 772 F.3d at 1310; cf. Small v. McCrystal, 708 F.3d 997, 1006 (8th Cir.


      1
      We decline Weyker’s invitation to skip over the under-color-of-state-law
element to decide her claim to qualified immunity.
      2
       To the extent Yassin is also suing for damages arising out of her post-arrest
indictment, the claim must proceed, if at all, under section 1983. See supra Part II.C.
                                         -17-
2013) (“Officers remain liable . . . for the reasonably foreseeable acts of actors they
deceive.”).

       Second, the right Weyker allegedly violated was clearly established. It is true,
as Weyker explains, that sexual-abuse and sex-trafficking cases often put
investigators in difficult positions, particularly when there are minors involved. Cf.
Myers v. Morris, 810 F.2d 1437, 1459 (8th Cir. 1987) (noting “[t]he uncertainty
surrounding acceptable investigative techniques for suspected child sexual abuse”).
But even so, a reasonable officer would know that deliberately misleading another
officer into arresting an innocent individual to protect a sham investigation is
unlawful, regardless of the difficulties presented by the case. See, e.g., Williams,
772 F.3d at 1313; Small, 708 F.3d at 1006.

                                         IV.

      We accordingly vacate the denial of Weyker’s motions to dismiss Ahmad’s,
Amalle’s, Farah’s, Osman’s, and Mohamud’s complaints. We instruct the district
court on remand to dismiss their Bivens claims and determine whether their cases
may proceed under section 1983. We also affirm the denial of Weyker’s motion to
dismiss Yassin’s unlawful-arrest claim and remand her case for further proceedings
consistent with this opinion.
                        ______________________________




                                         -18-
