Yasin Ahmed Farah v. Heather Weyker

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

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The Human Trafficking Institute

Amicus on Behalf of Appellant

___________________________

No. 17-3208

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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

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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

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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

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Submitted: November 14, 2018

Filed: June 12, 2019

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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.

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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,

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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

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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).

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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-

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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.

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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.

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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

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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

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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

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“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).

* * *

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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

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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.

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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.

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