Lead Opinion
Opinion by Judge MILAN D. SMITH, JR. Partial Concurrence and Partial Dissent by Judge BEA. ■
According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport’s police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to
Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft (Ashcroft), subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, 18 U.S.C. § 3144, to investigate or preemptively detain him. Ashcroft asserts that he is entitled to absolute and qualified immunity against alKidd’s claims. We hold that on the facts pled Ashcroft is not protected by either form of immunity, and we affirm in part and reverse in part the decision of the district court.
FACTS AND PROCEDURAL BACKGROUND
A. al-Kidd
Plaintiff-Appellee al-Kidd was born Lavoni T. Kidd in Wichita, Kansas. While attending college at the University of Idaho, where he was a highly regarded running back on the University’s football team, he converted to Islam and changed his name. In the spring and summer of 2002, he and his then-wife were the target of a Federal Bureau of Investigation (FBI) surveillance as part of a broad anti-terrorism investigation allegedly aimed at Arab and Muslim men.
On February 13, 2003, a federal grand jury in Idaho indicted Sami Omar Al-Hussayen for visa fraud and making false statements to U.S. officials. On March 14, the Idaho U.S. Attorney’s Office submitted an application to a magistrate judge of the District of Idaho, seeking al-Kidd’s arrest as a material witness in the Al-Hussayen trial. Appended to the application was an affidavit by Scott Mace, a Special Agent of the FBI in Boise (the Mace Affidavit). The Mace Affidavit described two contacts al-Kidd had with Al-Hussayen: al-Kidd had received “in excess of $20,000” from Al-Hussayen (though the Mace Affidavit does not indicate what this payment was for), and al-Kidd had “met with Al-Hussayen’s associates” after returning from a trip to Yemen. It also contained evidence of al-Kidd’s contacts with officials of the Islamic Assembly of North America (IANA, an organization with which Al-Hussayen was affiliated),
The affidavit further stated:
Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia____ It is believed that if al-Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.
In fact, al-Kidd had a round-trip, coach class ticket, costing approximately $1700. The Mace Affidavit omitted the facts that al-Kidd was a U.S. resident and citizen; that his parents, wife, and two children were likewise U.S. residents and citizens; and that he had previously cooperated with the FBI on several occasions when FBI agents asked to interview him. The magistrate judge issued the warrant the same day.
Pursuant to the material witness warrant, al-Kidd was arrested two days later at the ticket counter at Dulles International Airport. He was handcuffed and taken to the airport’s police substation, where he was interrogated. Thereafter, he was detained for an aggregate of sixteen days at the Alexandria Detention Center in Virginia, the Oklahoma Federal Transfer Center, and the Ada County, Idaho, Jail. He was strip searched on multiple occasions and confined in the high-security unit of each facility. During transfer between facilities, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was allowed out of his cell only one to two hours each day, and his cell was kept lit twenty-four hours a day, unlike other cells in the high-security wing.
On March 31, after petitioning the court, al-Kidd was ordered released, on the conditions that he live with his wife at his in-laws’ home in Nevada, limit his travel to Nevada and three other states, report regularly to a probation officer and consent to home visits throughout the period of supervision, and surrender his passport. After almost a year under these conditions, the court permitted al-Kidd to secure his own residence in Las Vegas, Nevada, as alKidd and his wife were separating. He lived under these conditions for three more months before being released at the end of Al-Hussayen’s trial, more than fifteen months after being arrested.
Al-Kidd was never called as a witness in the Al-Hussayen trial or in any other criminal proceeding.
B. Ashcroft
Defendant-Appellant Ashcroft was Attorney General of the United States during the relevant time period. According to alKidd’s complaint, following the September 11, 2001 terrorist attacks, Ashcroft developed and promulgated a policy by which the FBI and DOJ would use the federal material witness statute
To support this allegation, the complaint first quotes Ashcroft’s own statement at a press briefing:
Today, I am announcing several steps that we are taking to enhance our ability to protect the United States from the threat of terrorist aliens. These measures form one part of the department’s strategy to prevent terrorist attacks by taking suspected terrorists off the street ... Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.
John Ashcroft, Attorney General, Attorney General Ashcroft Outlines Foreign Terrorist Tracking Task Force (Oct. 31, 2001), available at http://www. usdoj.gov/archive/ag/speeches/2001/agcrisisremarksl0_31.htm (emphasis added in complaint). The complaint also cites internal DOJ memoranda quoted in a report by the DOJ’s Office of the Inspector General (OIG Report),
In his complaint, al-Kidd links his personal detention to these broader policies not only through inference, but also through the statements of Robert Mueller, the Director of the FBI. On March 27, while al-Kidd was jailed in Idaho, Mueller testified before Congress, listing five “major successes” in the FBI’s efforts toward “identifying and dismantling terrorist networks.” The first was the capture of Khalid Shaikh Mohammed, identified as “a key planner and the mastermind of the September 11th attack.” The second was al-Kidd, identified as having been “arrested ... en route to Saudi Arabia.” The other three “successes” all involved individuals “indicted” or “charged” with some crime connected to terrorism. See FBI’s Fiscal Year (FY) 2001p Budget: Hearing Before the Subcommittee on the Departments of Commerce, Justice and State, House Appropriations Committee, 108th Cong. (2003) (statement of Robert S. Mueller, III, Director, FBI), available at http:// www.fbi.gov/congress/congress03/mueller 032703.htm (hereafter Mueller Testimony).
Finally, the complaint notes that “material witnesses have been routinely held in high security detention facilities.” The OIG Report cites an Assistant U.S. Attorney who complained that the DOJ’s Bureau of Prisons “did not distinguish between detainees who, in his view, posed a security risk and those detained aliens who were uninvolved witnesses.” OIG Report at 20. It alleges “a general policy” of extensive mistreatment of material witnesses at the New York City Metropolitan Correctional Center (MCC). It cites a case, United States v. Awadallah,
C. Prior Proceedings
In March 2005, al-Kidd filed this lawsuit in Idaho federal district court. The first amended complaint was filed that November, naming as defendants, among others, Ashcroft, the United States, Mace and Gneckow (the two FBI agents named in the Mace Affidavit), and a number of government agencies and officers in their official capacities.
Ashcroft moved to dismiss under Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6). The district court first denied the 12(b)(2) motion, holding that al-Kidd had properly alleged facts sufficient to establish personal jurisdiction over Ashcroft in Idaho. Specifically, al-Kidd had alleged that Ashcroft “spear-headed the post September 11, 2001 practice ... to use the material witness statute to detain individuals whom they sought to investigate,” and that “Ashcroft either knew or should have known the violations were occurring and did not act to correct the violations.” Next, the district judge denied the 12(b)(6) motion, rejecting Ashcroft’s claims of absolute and qualified immunity. The district court held that “[t]he development and practice of using the material witness statute to detain individuals while investigating possible criminal activity qualifies as police type investigative activity, not prosecutorial advocacy” for which absolute immunity is reserved. Turning to the claims for qualified immunity, the district court held that “the allegations against Mr. Ashcroft involve more than vicarious liability but assert claims involving Mr. Ashcroft’s own knowledge and actions related to Mr. Kidd’s alleged constitutional deprivations.” The principal deprivation the district court mentioned was the allegation “that probable cause was not shown in the warrant application.” The district court also rejected qualified immunity for the FBI agents.
Ashcroft filed a timely interlocutory appeal.
JURISDICTION AND STANDARD OF REVIEW
A. Failure to State a Claim
Section 1291 of U.S.Code Title 28 grants this court jurisdiction over “final decisions” of the district court. Ordinarily, the denial of a motion under Federal Rule of Civil Procedure 12(b)(6) would not constitute a “final decision.” The district court’s denial of absolute and qualified immunity, however, is a “final decision” for § 1291 purposes because these immunities are immunities from suit, not just from damages. See Mitchell v. Forsyth,
As we have recognized in the past, interlocutory review of a Rule 12(b)(6) motion to dismiss puts our court in the difficult position of deciding “far-reaching constitutional questions on a nonexistent factual record.” Kwai Fun Wong v. United States,
We review de novo the district court’s rulings on absolute and qualified immunity. KRL v. Moore,
Ashcroft also argues that the district court does not have personal jurisdiction over him. Because denials of motions to dismiss for lack of personal jurisdiction are not ordinarily reviewable on interlocutory appeal, Ashcroft requests that this court exercise its “pendent appellate jurisdiction” to reach the question of personal jurisdiction.
In Hendricks v. Bank of America, N.A., we summarized the criteria for the exercise of pendent appellate jurisdiction:
Under 28 U.S.C. § 1292(a)(1), we may exercise ... pendent jurisdiction over any otherwise nonappealable ruling that is “inextricably intertwined” with or “necessary to ensure meaningful review of’ the order properly before us on interlocutory appeal. District court rulings are “inextricably intertwined” with a preliminary injunction when the legal theories on which the issues advance are so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal, or resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue. We also construe Swint’s “necessary to ensure meaningful review” language narrowly to require much more than a tangential relationship to the decision properly before us on interlocutory appeal.
DISCUSSION
Al-Kidd asserts three independent claims against Ashcroft. First, he alleges that Ashcroft is responsible for a policy or practice under which the FBI and the DOJ sought material witness orders without sufficient evidence that the witness’s testimony was material to another proceeding, or that it was impracticable to secure the witness’s testimony — in other words, in violation of the express terms of § 3144 itself — and that al-Kidd was arrested as a result of this policy (the § 3144 Claim). Second, al-Kidd alleges that Ashcroft designed and implemented a policy under which the FBI and DOJ would arrest individuals who may have met the facial statutory requirements of § 3144, but with the ulterior and allegedly unconstitutional purpose of investigating or preemptively detaining them, in violation of the Fourth Amendment (the Fourth Amendment Claim). Finally, al-Kidd alleges that Ashcroft designed and implemented policies, or was aware of policies and practices that he failed to correct, under which material witnesses were subjected to unreasonably punitive conditions of confinement, in violation of the Fifth Amendment (the Conditions of Confinement Claim).
Ashcroft argues that he is entitled to absolute prosecutorial immunity as to the § 3144 and Fourth Amendment Claims. He concedes that no absolute immunity attaches with respect to the Conditions of Confinement Claim. He also argues that he is entitled to qualified immunity from liability for all three claims.
A. Absolute Immunity
In Bivens actions and those taken under 42 U.S.C. § 1983,
The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. We have been “quite sparing” in our recognition of absolute immunity, and have refused to extend it any “further than its justification would warrant.”
Burns v. Reed,
To determine whether an action is “prosecutorial,” and so entitled to absolute immunity, the Supreme Court has adopted a “ ‘functional approach,’ which looks to ‘the nature of the function performed, not the identity of the actor who performed it.’ ” Id. at 269,
As the Supreme Court has acknowledged, the distinction between the roles of “prosecutor” and “investigator” is not always clear. See Imbler,
In determining the scope of the functions to which absolute immunity extends, the Supreme Court has “generally looked for a historical or common-law basis for the immunity in question.” Mitchell,
Ashcroft contends that the decision to seek a material witness warrant is always a prosecutorial function. He has presented us with no historical evidence that a common-law tradition of absolute immunity from suit for prosecutors in seeking material witness arrests exists, and our own research has uncovered none, even though the practice of detaining witnesses who are not criminal suspects dates back to at least the 1840s. See generally Wesley MacNeil Oliver, The Rise and Fall of Material Witness Detention in Nineteenth Century New York, 1 N.Y.U. J.L. & Liberty 727 (2005). Other circuits, however, have held that the decision to seek a material witness warrant to secure a witness’s testimony at trial is sufficiently related to judicial proceedings to be protected by absolute prosecutorial immunity. See Betts v. Richard,
Al-Kidd does not contest that absolute immunity ordinarily attaches to the decision to seek a material witness warrant. He contends, rather, that in his case, the
Ashcroft responds that any investigation into the purpose or motive behind the decision to arrest al-Kidd is inconsistent with the “functional” approach the Supreme Court has outlined. However, the cases he cites in support of this proposition are distinguishable. Those cases universally involve allegations that the otherwise prosecutorial action was secretly motivated by malice, spite, bad faith, or self-interest. See, e.g., Bernard v. County of Suffolk,
The cases distinguishing investigative and prosecutorial function take into account the goal of performing an action to determine function. In Buckley v. Fitzsimmons, the Supreme Court held that the prosecutors lacked absolute immunity for their actions before they had probable cause to arrest a suspect because “[tjheir mission at that time was entirely investigative in character.”
This circuit has followed the Supreme Court’s instruction. In KRL v. Moore, a grand jury had indicted the plaintiff, based on evidence obtained from an initial search warrant, on twenty-one criminal counts, mostly concerning environmental infractions relating to the removal of an underground fuel storage tank.
Likewise, in Genzler v. Longanbach,
Indeed, Daniels and Betts, while granting absolute immunity for material witness arrests, are entirely compatible with an inquiry into immediate purpose similar to that in Genzler. Both emphasized the close temporal and circumstantial connection between trial and seeking the arrest. Betts,
Ashcroft’s suggested approach, by contrast, would convert the Supreme Court’s functional approach into a formalistic taxonomy of acts that are inherently either prosecutorial or investigative, regardless of what each act is really serving to accomplish. Because the application for the arrest warrant had the words “Material Witness” in the caption, Ashcroft seems to contend, our inquiry must stop there. Our dissenting colleague agrees, and would hold that so long as a material witness warrant is sought pursuant to a criminal trial, the decision to seek the material witness warrant should always be shielded by absolute immunity, regardless of whether its purpose was purely investigative. Dissent at 12351.
We disagree. Many tools and tactics available to prosecutors can serve either an investigatory or advocacy-related function. A grand jury may be used to return an indictment against a particular suspect, or to conduct a wide-ranging investigation. Buckley,
Ashcroft argues that an inquiry into purpose cannot be cabined: a prosecutor filing charges against a foot soldier in an organized crime syndicate, for example, might hope that the prospect of a lengthy incarceration will encourage the defendant to turn state’s evidence, permitting investigation of those higher in the organization. A wide-ranging investigation into such motives would likely prove unworkable. It is
We hold, therefore, that when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another’s trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity.
• Al-Kidd’s arrest was sought a month after Al-Hussayen was indicted, and more than a year before trial began, temporally distant from the time any testimony would have been needed. See Genzler,410 F.3d at 639 (“The timing of evidence gathering is a relevant fact in determining how closely connected that conduct is to the official’s core advocacy function.... ”). Cf. Betts,726 F.2d at 81 (arrest warrant issued day of trial); Daniels,586 F.2d at 68 (same).
• The FBI had previously investigated and interviewed al-Kidd, but had never suggested, let alone demanded, that he appear as a witness. Cf. Betts,726 F.2d at 80 (subpoena issued; prosecutor called witness day before trial to remind her that trial was to begin the next day); Daniels,586 F.2d at 65 (plaintiff had already been served one subpoena; second subpoena was misplaced by U.S. Marshal).
• The FBI conducted lengthy interrogations with al-Kidd while in custody, including about matters apparently unrelated to Al-Hussayen’s alleged visa violations. Cf. Genzler,410 F.3d at 641-43 (nature of questions asked witnesses relevant to whether interview served investigative function).
• Al-Kidd never actually testified for the prosecution in Al-Hussayen’s or any other case, despite his assurances that he would be willing to do so. Cf.*964 Betts,726 F.2d at 80 (“On Monday morning the trial proceeded and the prosecutor called plaintiff as his first witness.”); Daniels,586 F.2d at 66 (“Plaintiff subsequently testified as a government witness when Phoenix’s trial resumed.”).
All of these are objective indicia, similar to those we cited in Genzler,
• Ashcroft’s immediate subordinate, FBI Director Mueller, testified before Congress that al-Kidd’s arrest (rather than, say, the obtaining of the evidence he was supposedly going to provide against Al-Hussayen) constituted a “major suecess[]” in “identifying and dismantling terrorist networks.” Mueller Testimony, supra. Cf. KRL,384 F.3d at 1114-15 (prosecutor contemporaneously admits on radio program that follow-up search warrant was part of “a stand-alone investigation”).
We conclude that the practice of detaining a material witness in order to investigate him, on the facts alleged by al-Kidd, fulfills an investigative function.
B. Qualified Immunity
The Attorney General may still be entitled to qualified immunity for acts taken in furtherance of an investigatory or national security function. Before addressing each of al-Kidd’s claims in turn, we address the general requirements of qualified immunity applicable to all his claims.
1. Qualified Immunity Generally
Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the officer’s conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case. Saucier v. Katz,
2. Qualified Immunity for Supervisors
Because qualified immunity is “an immunity from suit rather than a mere defense to liability,” Mitchell,
In conducting qualified immunity analysis ..., courts do not merely ask whether, taking the plaintiffs allegations as true, the plaintiffs clearly es*965 tablished rights were violated. Rather, courts must consider as well whether each defendant’s alleged conduct violated the plaintiffs clearly' established rights. For instance, an allegation that Defendant A violated a plaintiffs clearly established rights does nothing to overcome Defendant B’s assertion of qualified immunity, absent some allegation that Defendant B was responsible for Defendant A’s conduct.'
Hope,
Al-Kidd’s complaint does not allege that Ashcroft was directly involved in the decision to detain al-Kidd. But “direct, personal participation is not necessary to establish liability for a constitutional violation.” Id. Supervisors can be held liable for the actions of their subordinates (1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinates; or (4) for conduct that shows a “reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles,
S. The Fourth Amendment Claim
Al-Kidd’s complaint principally alleges that Ashcroft “developed, implemented and set into motion a policy and/or practice under which the FBI and DOJ would use the material witness statute to arrest and detain terrorism suspects about whom they did not have sufficient evidence to arrest on criminal charges but wished to hold preventively or to investigate further.” Al-Kidd argues that using § 3144 to detain suspects to investigate them violates the Fourth Amendment’s guarantee against unreasonable seizure.
a. Alr-Kidd’s Fourth Amendment Rights Were Violated.
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons ... against unreasonable searches and seizures, shah not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
We have previously held that material witness arrests are “seizures” within the meaning of the Fourth Amendment and are therefore subject to its reasonableness requirement. Bacon v. United States,
The Supreme Court has never held that detention of innocent persons as material witnesses is permissible under the Fourth Amendment,
Whren rejected only the proposition that “ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred.” Id. at 811,
[TJhe term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation; and, in all cases of seizure, has a fixed and well known meaning. It imports a seizure made under circumstances which warrant suspicion. In this, its legal sense, the Court must understand the term to have been used by Congress.
Locke v. United States,
Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it— whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.
This Court repeatedly has explained that “probable cause” to justify an ar*967 rest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.
Michigan v. DeFillippo,
The dissent disputes this traditional definition of probable cause, contending that no substantive component exists and that Zurcher v. Stanford Daily,
Further, our decision in Bacon v. United States is not to the contrary. In Bacon, we held that the two criteria for arrest in the predecessor of § 3144, materiality of the witness’s testimony and impracticability of securing the witness’s testimony by subpoena, must be met by “probable cause” to arrest the material witness.
Because material witness arrests are seizures without suspicion of wrongdoing, the Whren rule, that subjective motivation is irrelevant in the presence of probable cause, does not apply to our Fourth Amendment analysis in this case. In City of Indianapolis v. Edmond, the Supreme Court struck down motor vehicle checkpoints set up “to interdict unlawful drugs” carried by those stopped.
our cases dealing with intrusions that occur pursuant to a general scheme absent individualized suspicion have often required an inquiry into purpose at the programmatic level.
... [W]e examine the available evidence to determine the primary purpose of the checkpoint program. While we recognize the challenges inherent in a purpose inquiry, courts routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from that which is lawful. As a result, a program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar. While reasonableness under the Fourth Amendment is predominantly an objective inquiry, our special needs and administrative search cases demonstrate that purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue.
Id. at 46-47,
Edmond, therefore, establishes that “programmatic purpose” is relevant to Fourth Amendment analysis of programs of seizures without probable cause.
the stop’s primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle’s occupants, but other individuals.
Id. at 423,
Al-Kidd alleges that he was arrested without probable cause pursuant to a general policy, designed and implemented by Ashcroft, whose programmatic purpose was not to secure testimony, but to investigate those detained. Assuming that allegation to be true, he has alleged a constitutional violation. Contrary to the dissent’s alarmist claims, we are not probing into the minds of individual officers at the scene; instead, we are inquiring into the programmatic purpose of a general policy as contemplated by Edmond,
Further, the dissent’s assertion that we are suggesting “the only govern
All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment. Accord Awadallah II,
b. AUKidd’s Right Was “Clearly Established.”
Ashcroft alternatively contends that if we conclude that the use of material witness orders for investigatory purposes violates the Constitution, we should still grant him qualified immunity because that constitutional right was not “clearly established” in March 2003, when al-Kidd was arrested. We disagree.
In March 2003, no case had squarely confronted the question of whether misuse of the material witness statute to investigate suspects violates the Constitution. Both the complaint and Amici Former Federal Prosecutors note the unprecedented nature of Ashcroft’s alleged material witness policy, and thus it is unsurprising that published cases directly on point are lacking. However, this alone is not enough to give Ashcroft immunity: “ ‘while there may be no published cases holding similar policies [unjconstitutional, this may be due more to the obviousness of the illegality than the novelty of the legal issue.’ ” Moreno v. Baca,
For a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of preexisting law the unlawfulness must be apparent.”
Hope,
What was clearly established in March 2003? No federal appellate court had yet squarely held that the federal material witness statute satisfied the requirements of the Fourth Amendment. Even our decision in Bacon held only that it was unconstitutional as applied to the petitioner.
The definition of probable cause, as set forth in Beck v. Ohio, was certainly clearly established. While the Supreme Court’s decision permitting suspicionless seizures in some circumstances in Lidster had not yet been decided, its decision in Edmond, stating that an investigatory programmatic purpose renders a program of seizures without probable cause unconstitutional, had been decided two and a half years earlier.
Moreover, the history and purposes of the Fourth Amendment were known well before 2003:
The central importance of the probable-cause requirement to the protection of a citizen’s privacy afforded by the Fourth Amendment’s guarantees cannot be compromised in this fashion. “The requirement of probable cause has roots that are deep in our history.” Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that “common rumor or report, suspicion, or even ‘strong reason to suspect’ was not adequate to support a warrant for arrest.”
Dunaway v. New York,
The facts alleged of al-Kidd’s arrest, that he was arrested because he was asso
The Wilkes case arose out of the Crown’s attempt to stifle a publication called The North Briton, anonymously published by John Wilkes, then a member of Parliament — particularly issue No. 45 of that journal. Lord Halifax, as Secretary of State, issued a warrant ordering four of the King’s messengers “to make strict and diligent search for the authors, printers, and publishers of a seditious and treasonable paper, entitled, The North Briton, No. 45, * * * and them, or any of them, having found, to apprehend and seize, together with their papers.” “Armed with their roving commission, they set forth in quest of unknown offenders; and unable to take evidence, listened to rumors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect.” Holding that this was “a ridiculous warrant against the whole English nation,” the Court of Common Pleas awarded Wilkes damages against the Secretary of State.
Id. at 483,
Finally, months before al-Kidd’s arrest, one district court in a high-profile case had already indicated, in the spring of 2002, that § Slkk itself should not be abused as an investigatory anti-terrorism tool, calling out Ashcroft by name:
Other reasons may motivate prosecutors and law enforcement officers to rely upon the material witness statute. Attorney General John Ashcroft has been reported as saying: “Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.” Relying on the material witness statute to detain people who are presumed innocent under our Constitution in order to prevent potential crimes is an illegitimate use of the statute. If there is probable cause to believe an individual has committed a crime or is conspiring to commit a crime, then the government may lawfully arrest that person, but only upon such a showing.
Awadallah I,
We therefore hold that al-Kidd’s right not to be arrested as a material witness in order to be investigated or preemptively detained was clearly established in 2003. Although Ashcroft has raised in this appeal neither a national security nor an exigency defense to al-Kidd’s action, we note that we are mindful of the pressures under which the Attorney General must operate. We do not intend to “dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” Gregoire v. Biddle,
not allow the Attorney General to carry out his national security functions wholly free from concern for his personal liability; he may on occasion have to pause to consider whether a proposed course of action can be squared with the Constitution and laws of the United States. But this is precisely the point of the Harlow standard: “Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate.... ” This is as true in matters of national security as in other fields of governmental action. We do not believe that the security of the Republic will be threatened if its Attorney General is given incentives to abide by clearly established law.
Mitchell,
k- The § SlJpí Claim
In addition to alleging that Ashcroft misused § 3144 for unconstitutional purposes the statute did not intend, alKidd alleges that his arrest violated the terms of § 3144 itself. Section 3144 authorizes the arrest of material witnesses only if (1) “the testimony of a person is material in a criminal proceeding,” and (2) “it may become impracticable to secure the presence of the person by subpoena.” Bacon v. United States requires that these elements be shown by presenting the judicial officer with an affidavit showing “the underlying facts or circumstances from which the judicial officer could find probable cause.”
Although the arrest was conducted pursuant to a warrant issued by a magistrate judge, we allow challenges to the validity of searches and seizures conducted pursuant to a warrant if the affidavit in support of the warrant included false statements or material omissions that were made intentionally or recklessly. See Franks v. Delaware,
Prior to Bell Atlantic Corp. v. Twombly,
In Twombly, the Supreme Court held that an allegation of parallel conduct by competitors, without more, does not suffice to plead an antitrust violation under 15 U.S.C. § 1.
Since the argument and initial briefing in this case, the Supreme Court, in Ashcroft v. Iqbal, - U.S. -,
In reviewing the complaint in Iqbal, the Court noted that the complaint did not contain any factual allegations claiming that Mueller or Ashcroft may have intentionally discriminated on the basis of race or religion. Id. at 1952 (“Accepting the truth of [the allegation of a adopting an impermissible policy], the complaint does not show, or even intimate, that petitioners purposefully housed detainees ... due to their race, religion, or national origin.”). The Court concluded that bare assertions regarding an invidious policy were not entitled to the assumption of truth because they amounted to “nothing more than a
Here, unlike Iqbal’s allegations, alKidd’s complaint “plausibly suggest[s]” unlawful conduct, and does more than contain bare allegations of an impermissible policy. Id. at 1950. While the complaint similarly alleges that Ashcroft is the “principal architect” of the policy, the complaint in this case contains specific statements that Ashcroft himself made regarding the post-September 11th use of the material witness statute. Ashcroft stated that enhanced tactics, such as the use of the material witness statute, “form one part of the department’s concentrated strategy to prevent terrorist attacks by taking suspected terrorists off the street,” and that “[a]ggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.” Other top DOJ officials candidly admitted that the material witness statute was viewed as an important “investigative tool” where they could obtain “evidence” about the witness. The complaint also contains reference to congressional testimony from FBI Director Mueller, stating that al-Kidd’s arrest was one of the government’s anti-terrorism successes — without any caveat that al-Kidd was arrested only as a witness. Comparatively, Iqbal’s complaint contained no factual allegations detailing statements made by Mueller and Ashcroft regarding discrimination. The specific allegations in al-Kidd’s complaint plausibly suggest something more than just bare allegations of improper purpose; they demonstrate that the Attorney General purposefully used the material witness statute to detain suspects whom he wished to investigate and detain preventatively, and that al-Kidd was subjected to this policy.
Further, unlike in Twombly and Iqbal, where the plaintiffs alleged a conspiracy or discriminatory practice in the most eonclusory terms, al-Kidd does not rely solely on his assertion that Ashcroft ordered, encouraged, or permitted “policies and practices [whereby] individuals have also been impermissibly arrested and detained as material witnesses even though there was no reason to believe it would have been practicable to secure their testimony voluntarily or by subpoena.”
Al-Kidd need not show that Ashcroft “actually instructed] his subordinates to
Further, the complaint notes that the “abuses occurring under the material witness statute after September 11, 2001, were highly publicized in the media, congressional testimony and correspondence, and in various reports by governmental and non-governmental entities,” which could have given Ashcroft sufficient notice to require affirmative acts to supervise and correct the actions of his subordinates. The complaint also avers that “the Justice Department has issued apologies to 10-12 individuals who were improperly arrested as material witnesses.” Given that the government maintains that it does nothing wrong in the pretextual use of the material witness statute to investigate and preemptively detain, it is reasonable to infer that its apologies were for violations of the terms of the statute itself, of which the DOJ, and presumably its leader, were aware.
Our dissenting colleague contends that al-Kidd’s pleadings merely establish that “some material witnesses were detained who did not testify or did not prove to have material information,” perhaps because defendants took plea deals or prosecutors acted hastily in conducting investigations. Dissent at 993. The dissent further contends that this does not amount to a Franks violation. Franks,
Post-Twombly, plaintiffs face a higher burden of pleading facts, and courts face greater uncertainty in evaluating complaints. As discussed in Iqbal, “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 1950. This concern applied with great force in the civil rights context, where “[t]he basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation, including ‘avoidance of disruptive discovery.’ ” Id. at 1953 (citing Siegert v. Gilley,
Were this case before us on summary judgment, and were the facts pled in the complaint the only ones in the record, our decision might well be different. In the district court, moving forward, al-Kidd will bear a significant burden to show that the Attorney General himself was personally involved in a policy or practice of alleged violations of § 3144. But Twombly and Iqbal do not require that the complaint include all facts necessary to carry the plaintiffs burden. “Asking for plausible grounds to infer” the existence of a claim for relief “does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” to prove that claim. Twombly,
5. Conditions of Confinement Claim
Lastly, al-Kidd complains that he was mistreated while confined as a material witness. Confinement of criminals is a punishment, and, within the limits of the Fifth and Eighth Amendments, it is supposed to be unpleasant. However, when, as here, the government is empowered to detain those who are not charged with crimes, it is under an obligation not to treat them like criminals. See Youngberg
On this appeal, Ashcroft contests neither the substance of the right al-Kidd claims was violated in the Conditions of Confinement Claim, nor whether that right was “clearly established.” Rather, as with the § 3144 Claim, he argues only that al-Kidd has failed to plead sufficient facts to tie Ashcroft, personally, to the alleged violation.
The unconstitutional conditions claim in this ease is substantially similar to the claims in the Supreme Court’s recent Iqbal decision. In Iqbal, the complaint alleged Ashcroft’s liability for the conditions of confinement at the Metropolitan Detention Center in New York, where aliens arrested after 9/11 were held.
As al-Kidd’s complaint notes, media reports had observed the conditions detailed in the OIG Report to apply to Americans and legal aliens held as material witnesses. See, e.g., Naftali Bendavid, Material Witness Arrests Under Fire; Dozens Detained in War on Terror, Chi. Trib., Dec. 24, 2001, at Nl; Fainaru & Williams, supra, at Al; John Riley, Held Without Charge: Material Witness Law Puts Detainees in Legal Limbo, N.Y. Newsday, Sept. 18, 2002, at A6. Their conditions of confinement had also been noted by the courts. The district court in Awadallah I, writing in the spring of 2002, decried at length the state in which Mr. Awadallah had been held:
Awadallah was treated as a high security federal prisoner. Having committed no crime — indeed, without any claim that there was probable cause to believe he had violated any law — Awadallah bore the full weight of a prison system designed to punish convicted criminals as well as incapacitate individuals arrested or indicted for criminal conduct.
... In many ways, ... the conditions of his confinement were more restrictive than that experienced by the general prison population.
Unlike the § 3144 Claim, which specifically avers facts which could sustain the inference that Ashcroft “set[ ] in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” regarding the illegal use of the material witness statute, Kwai Fun Wong,
C. Personal Jurisdiction
Finally, Ashcroft contends that the district court erred in denying Ashcroft’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. As this is an interlocutory appeal, we will address the issue only to the extent it falls within our pendent appellate jurisdiction.
1. “Necessary to Provide Meaningful Review ”
Ashcroft first alleges that the issue of personal jurisdiction is “necessary to provide meaningful review” of the district court’s immunity rulings. It is true that personal jurisdiction was a necessary predicate to the district court’s Rule 12(b)(6) ruling denying Ashcroft absolute and qualified immunity. But that could be said about any ruling following a decision on personal jurisdiction, so that alone cannot make our review of personal jurisdiction “necessary to provide meaningful review.” See, e.g., Poulos v. Caesars World, Inc.,
The only cases that Ashcroft cites to suggest that personal jurisdiction is necessary to ensure meaningful review are cases involving interlocutory appeals of temporary injunctions. Hendricks,
2. “Inextricably Intertwined ”
Ashcroft next argues that the issue of personal jurisdiction is “inextricably inter
The second criterion, however, is present — in part. To obtain specific personal jurisdiction over a defendant in a state, the defendant must either purposefully avail himself of the privilege of conducting activities in the state, or purposefully direct his activities toward the state. Schwarzenegger v. Fred Martin Motor Co.,
Insofar as Ashcroft’s objection to personal jurisdiction rests on the fact that his acts were not “expressly aimed” at Idaho, or that he did not know that his acts were likely to cause harm in Idaho, we decline to rule on the issue. Far from being “inextricably intertwined,” those issues are irrelevant to any element of absolute or qualified immunity. The federal courts of appeals are courts of limited jurisdiction, and Congress has not seen fit to give this court the general power to review district courts’ exercise of personal jurisdiction before a final judgment. We therefore will not do so here.
CONCLUSION
Almost two and a half centuries ago, William Blaekstone, considered by many to be the preeminent pre-Revolutionary War authority on the common law, wrote:
To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.
1 William Blackstone, Commentaries ON THE Laws of England 131-32 (1765). The Fourth Amendment was written and ratified, in part, to deny the government of our then-new nation such an engine of potential tyranny. And yet, if the facts alleged in al-Kidd’s complaint are actually true, the government has recently exercised such a “dangerous engine of arbitrary government” against a significant number of its citizens, and given good reason for disfavored minorities (whoever they may be from time to time) to fear the
We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the Framers of our Constitution would have disapproved of the arrest,. detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.
For the reasons indicated in this opinion, we AFFIRM in part and REVERSE in part the decision of the district court. Each party shall bear its own costs on appeal.
Notes
. All facts are taken from al-Kidd's first amended complaint, unless otherwise indicated.
. Al-Kidd is Muslim, but is African-American and not of Arab descent.
. The IANA is identified in the Al-Hussayen indictment as an organization with the "purpose of Da’wa (proselytizing), which included the website dissemination of radical Islamic ideology the purpose of which was indoctrination, recruitment of members, and the instigation of acts of violence and terrorism.”
The IANA's web site currently disseminates a list of goals which include, inter alia, to "[u]nify and coordinate the efforts of the different dawah oriented organizations in North America and guide or direct the Muslims of this land to adhere to the proper Islamic methodology"; "[sjpread the correct knowl
. Al-Hussayen was not convicted of any of the charges brought against him. His trial ended in acquittal on the most serious charges, including conspiracy to provide material support to terrorists, 18 U.S.C. §§ 2339A, 2339B. After the jury failed to reach a verdict on the remaining lesser charges, the district court declared a mistrial. The government agreed not to retry Al-Hussayen and deported him to Saudi Arabia for visa violations.
. The federal material witness statute, 18 U.S.C. § 3144, provides:
If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.
. See Office of the Inspector Gen., U.S. Dep’t of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (2003), available at http://www.usdoj.gov/oig/special/ 0306/full.pdf. The OIG Report's focus is the post-9/11 detention on immigration charges of Arab and Muslim aliens, and touches only incidentally on those held as material witnesses. Because the report, an official government document, is cited extensively throughout the complaint, we deem it incorporated by reference, and take judicial notice of its entire contents. See In re Silicon Graphics Inc. Sec. Litig.,
. Ashcroft is the only defendant in this case who filed an interlocutory appeal of the district court’s denial of the defendants’ Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6) motions. Accordingly, none of al-Kidd’s claims against the other defendants is before us.
. The qualified and absolute immunity defenses to each are the same. See Butz v. Econo
. One bright line the Supreme Court has given is that a "prosecutor neither is, nor should he consider himself to be, an advocate before he has probable cause to have anyone arrested.” Buckley,
. Justice Kennedy would have gone even further, extending the inquiry beyond “immediate” purpose:
Two actors can take part in similar conduct and similar inquiries while doing so for different reasons and to advance different functions. It may be that a prosecutor and a police officer are examining the same evidence at the same time, but the prosecutor is examining the evidence to determine whether it will be persuasive at trial and of assistance to the trier of fact, while the police officer examines the evidence to decide whether it provides a basis for arresting a suspect. The conduct is the same but the functions distinct.
Id. at 289,
. In KRL we limited our holding to search warrants, rather than arrest warrants. Id. at 1114. This distinction was based on the Supreme Court's rule that "a prosecutor does not serve as an advocate before probable cause to arrest anyone has been established.” Id. (citing Buckley,
. The dissent argues that an individual’s detention on a material witness warrant “is subject to continuing oversight, and errors may be corrected though the judicial process[,]” and thus obviates " 'the need for damages actions to prevent unjust results.’ ” Dissent at 996 (citations omitted). The Third Circuit has recently held the opposite, finding that the plaintiffs, who had been detained on material witness statutes, had demonstrated the need for damages actions because "by virtue of their status as third-party witnesses, Plaintiffs are not entitled to the protections available to criminal defendants, including the appellate process.” Odd,
. See, e.g., Guzman-Rivera v. Rivera-Cruz,
. The dissent believes that such an inquiry is undesirable because of the incentives it creates. Dissent at 999-1000. Judge Bea states that our inquiry may make a prosecutor go to trial against a defendant simply to ensure his actions will not be subject to attack in a future lawsuit. We disagree. First, prosecutors often make choices regarding prosecutorial strategy that may be in tension with personal liability, see Kalina,
. Two decisions have held that it does not violate other provisions of the Constitution. See Hurtado v. United States,
. In 2003, the year of al-Kidd's arrest, material witness arrests made up only 3.6% of all arrests by federal law enforcement agents. Of those, 92.3% were made by the former Immigration and Naturalization Service, typically to detain illegally smuggled aliens for testimony against their smugglers before removal. See, e.g., Aguilar-Ayala v. Ruiz,
. One may commit a crime by ignoring or disobeying a subpoena. 18 U.S.C. § 401(3) (authorizing criminal contempt for "[disobedience or resistance to [a court's] lawful writ, process, order, rule, decree, or command”). This was not the case here, where al-Kidd does not ever seem to have been subpoenaed.
. The petitioner in Bacon was detained as a material witness in a grand jury proceeding. We stated that "a mere statement by a responsible official, such as the United States Attorney, is sufficient to satisfy” the materiality criterion in the case of a witness for a grand jury, which maintains broad powers of investigation and whose proceedings are secret.
Because Al-Hussayen had already been indicted by the time of al-Kidd's arrest, we do not address whether Bacon's statement that grand juries are "criminal proceedings” within the meaning of the material witness statute was a holding or obiter dicta. Compare Awadallah I,
. The dissent contends that United States v. Villamonte-Marquez,
. We are mindful of the difference between a traffic stop and a material witness arrest. The material witness is subject to a seizure an order of magnitude greater than that at issue in Lidster, where the stops were “brief,” and were of drivers in their cars. (As the Court noted, the "Fourth Amendment does not treat a motorist’s car as his castle.”
. See, e.g., Stein,
. Mr. Awadallah was detained shortly after the September 11 attacks. Awadallah II,
. As discussed previously, "a plaintiff must plead that each Government-official defendant, though the official's own individual actions” were involved in the constitutional deprivations. Iqbal,
. Ashcroft contends that al-Kidd does not even go so far as to make such an assertion, and that he never explicitly says in his complaint that Ashcroft designed such a policy. This argument requires a hypertechnical reading of the complaint. The paragraph alleging outright violations of § 3144 begins with “the post-9/11 policies and practices,” with the definite article. (Emphasis added). There is no reason from the text of the complaint to think that those "post-9/11 policies and practices” are anything other than "The post-9/11 material witness policies and practices adopted and implemented by Defendant Ashcroft " alleged fourteen paragraphs earlier in the complaint. (Emphasis added).
. The dissent contends that the "knowing failure to act” standard did not survive Iqbal. Dissent at 992 n. 13. The dissent points to the fact that the Court held that Ashcroft could not be held liable for his "knowledge and acquiescence” of his subordinates' unconstitutional discrimination against Muslim men.
. The dissent believes that al-Kidd's complaint plausibly demonstrates only that Ashcroft directed his subordinates to use the statute "pretextually,” not "unlawfully.” Dissent at 993. As discussed above, the pretextual use of the material witness statute that results in a person being detained for criminal investigation without adequate probable cause runs afoul of the Fourth Amendment, and is thus unlawful.
. To be sure, this is not a necessary inference: the apologies could have been for wrongs that do not rise to the level of a constitutional violation. But neither is it an unreasonable inference, and on a Rule 12(b)(6) motion, we draw all reasonable inferences in favor of the plaintiff.
Concurrence Opinion
concurring in part and dissenting in part:
This case raises the question whether a person whom a prosecutor can rightly arrest under a statute becomes wrongly arrested if the prosecutor’s purpose in arresting him had nothing to do with the statute. Put another way, can a prosecutor, empowered by law to arrest an individual for one declared purpose, be immune from suit when he arrests that person with another, secret purpose in mind?
Our natural reaction is, “Of course not!” Such a prosecutor is abusing the vast discretionary powers we have entrusted to him. He is not playing fair; he is playing “Gotcha!”
But under our law, that natural reaction would be wrong. For reasons of public policy, our law provides the prosecutor with official immunity — perhaps not immunity from being fired, impeached, or hounded from public life, but immunity nonetheless — from lawsuits for money damages based on the acts he undertakes on behalf of the public.
The Supreme Court has developed this law by repeatedly instructing us not to inquire into the personal, subjective intentions of a government official when determining whether the official is protected by official immunity. Reading the minds of government officials is notoriously expensive, uncertain, and fraught with error. The very purpose of official immunity is to shield the purses of government officials from the high costs of civil damages lawsuits. If official immunity were to depend upon proof of the officials’ good intentions, the value of that immunity would be lost.
Yet today, the majority permits plaintiff Abdullah al-Kidd to seek redress from the wallet of a federal cabinet-level official for injuries al-Kidd alleges he suffered when he was detained — pursuant to a warrant signed and issued by a neutral federal magistrate judge — as a material witness in the government’s prosecution of an indicted terrorist suspect.
The sole reason the majority provides for stripping former Attorney General John Ashcroft of his official immunity is that, although he and his subordinates had sufficient evidence to arrest al-Kidd as a material witness in the prosecution of a suspected terrorist under the applicable statute, they acted with a forbidden state of mind: they really arrested him not to
Because I do not believe this holding comports with the Supreme Court’s instructions regarding official immunity and Fourth Amendment law, I must respectfully dissent.
I also dissent from the majority’s resolution of al-Kidd’s claim that Ashcroft is personally liable for the inclusion of claimed material misrepresentations and omissions in the affidavit supporting the material witness warrant on which al-Kidd was detained. Al-Kidd’s complaint does not state facts sufficient plausibly to show Ashcroft was personally responsible for the claimed falsities. See Ashcroft v. Iqbal, — U.S. -,
I. Background
After 9/11, in connection with an investigation into terrorist activities in Idaho, federal agents interviewed al-Kidd on several occasions. In February 2003, a grand jury returned an indictment against Sami Omar Al-Hussayen, a suspect in that investigation. During the course of the investigation, FBI agents learned, and later affied, that al-Kidd had received “in excess” of $20,000 from Al-Hussayen, had met with Al-Hussayen’s associates after al-Kidd’s trip to Yemen, and had contacts with the Islamic Assembly of North America (“IANA”) (the suspected Jihadist organization for which Al-Hussayen worked).
Al-Kidd filed this action under Bivens v. Six Unknown Named Agents,
Ashcroft contends each of these claims is barred, either because al-Kidd has not pleaded facts sufficient to establish Ashcroft’s personal involvement; because Ashcroft enjoys absolute or qualified immunity against al-Kidd’s claims; or, because the district court lacked personal jurisdiction over Ashcroft.
The majority concludes that al-Kidd has not adequately pleaded Ashcroft’s personal involvement in the decision to subject him to unconstitutionally harsh conditions of confinement. I agree, and therefore I join in Part B.5 of the majority opinion (“The Conditions of Confinement Claim”).
As to al-Kidd’s second and third claims, however, the majority affirms the district court’s order denying Ashcroft’s motion to dismiss.
I disagree. As to al-Kidd’s claim prosecutors used the material witness statute as a pretext to pursue other, investigatory or crime prevention agendas, the answer is simply that such pretext does not invalidate the arrest warrant; I would hold Ashcroft is shielded by qualified immunity. In light of the considerable authority recognizing that the pretextual use of an objectively justifiable search or seizure does not violate the Fourth Amendment, it follows the federal agents did not violate al-Kidd’s constitutional rights. But if I’m wrong, in any case al-Kidd’s right not to be arrested on an objectively valid, but pretextual arrest warrant was not “clearly established” in March 2003, when al-Kidd was detained, and qualified immunity therefore shields Ashcroft from al-Kidd’s claims. See Saucier v. Katz,
As to al-Kidd’s claim that his detention violated the Fourth Amendment and the terms of the material witness statute because the supporting warrant application contained material misrepresentations and omissions, we cannot reach the merits of his claim, for — as with his claim that Ashcroft is liable for the claimed wretched conditions of al-Kidd’s confinement, as to which all of us agree his claim fails — alKidd has failed to allege facts sufficient to establish Ashcroft’s personal liability for such conduct. See Ashcroft v. Iqbal, 556 U.S.-,
Lastly, I disagree, in part, with the majority’s treatment of Ashcroft’s claim of absolute immunity. I agree that Ashcroft lacks absolute prosecutorial immunity , for his acts or omissions in supervising the officers who acted as complaining witnesses in support of a material witness warrant application. When officials— whether prosecutors or police officers — act as mere witnesses in support of a warrant application, absolute immunity does not shield their actions. Equally, Ashcroft would lack absolute immunity for his acts or omissions in supervising officers who obtain a material witness warrant to secure the presence of a witness before an investigatory grand jury, rather than a criminal trial. However, I disagree that Ashcroft does not enjoy absolute immunity for his supervision of prosecutors who decide to seek a material witness warrant to
I address each of these issues in turn.
II. Qualified Immunity
I would hold that Ashcroft enjoys qualified immunity from al-Kidd’s claim that the material witness warrant on which he was detained was merely a pretext to accomplish other law enforcement objectives. To be clear, al-Kidd’s pretext claim is not that the material witness warrant on which he was detained was invalid on its face or because it was based on an affidavit containing material misrepresentations or omissions.
Al-Kidd bases his claims of liberty from arrest on the Fourth Amendment. The Supreme Court has repeatedly stated that under the Fourth Amendment, an officer’s subjective intentions are irrelevant so long as the officer’s conduct is objectively justified. See, e.g., Maryland v. Macon,
Whren v. United States,
We [have] flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification.... [S]ubjeetive intent alone ... does not make otherwise lawful conduct illegal or unconstitutional. We described Robinson [414 U.S. at 236 ,94 S.Ct. 467 ] as having established that “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”
Id. at 812-13,
There is good reason to eschew inquiry into the subjective motivations of individual officers. First, such an approach provides “arbitrarily variable” protection to individual rights. Devenpeck v. Alford,
[tjhere are special costs to subjective inquiries of this kind.... Judicial inquiry into subjective motivation therefore may entail broad-ranging discovery and the deposing of numerous persons, including an official’s professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.
The majority’s efforts to distinguish Whren are unpersuasive. The majority contends that Whren and like cases are inapplicable whenever the government acts without probable cause to believe that the subject of the arrest is guilty of some criminal wrongdoing. Maj. Op. at 966-67. To reach this result, the majority imports the “programmatic purpose” test ordinarily reserved for administrative or “special needs” search cases. The programmatic purpose test, of course, tests the constitutional validity of warrantless searches and seizures, such as drunk driving roadblocks, by requiring the government to prove its program serves governmental interests other than the routine collection of evidence for criminal prosecution. See, e.g., Ferguson v. City of Charleston,
First, the special needs cases have no bearing on the inquiry into al-Kidd’s arrest for the simple reason that al-Kidd was arrested pursuant to a warrant issued by a neutral magistrate. The “programmatic purpose” inquiry is necessary to test the validity of a special needs search precisely because such searches occur without the procedural protections of the warrant requirement and the magisterial supervision it entails. As the Supreme Court explained in New York v. Burger, a statute authorizing a warrantless administrative or special needs search must provide
a constitutionally adequate substitute for a warrant. In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises*987 that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.
Second, the majority’s “traditional” definition of “probable cause,” which limits probable cause to mean only probable cause to believe that the arrestee is guilty of wrongdoing, Maj. Op. at 966-67, reflects a fundamental misunderstanding of the Fourth Amendment. The validity of a police action under the Fourth Amendment turns not on the guilt or innocence of the arrestee, but on whether the government’s reasons for arresting the individual are weighty enough, and probably factually likely enough, to justify the intrusion into some individual’s rights.
Until today, no case has suggested that the only governmental interest of sufficient weight to justify an arrest is a reasonable belief that the arrestee has committed a crime. Most importantly, the Supreme Court has stated that the government’s interest in the integrity of the justice system is important enough to justify the arrest of a wholly innocent person to secure that witness’s appearance at trial. See Stein v. New York,
In the closely analogous context of searches, it is clear that, consistent with the Fourth Amendment, government agents, with a warrant supported by probable cause, may intrude to search upon the premises even of individuals who are suspected of no wrongdoing whatsoever. In Zurcher v. Stanford Daily,
Though Zurcher involved a search, rather than a seizure, its rationale is applicable here and squarely rejects the majority’s contention that the probable cause requirement of the Fourth Amendment may be satisfied only by suspicion of wrongdoing by the subject of the intrusion. As the Supreme Court explained, the property owner’s guilt or innocence is simply irrele
In short, our cases, and those of the Supreme Court, have routinely recognized that “probable cause,” within the meaning of the Fourth Amendment, may be satisfied by proof of something other than wrongdoing by the subject of the search or seizure.
Of course, taken to its logical conclusion, the majority opinion renders the material witness statute entirely superfluous. To arrest and confine an individual pursuant to the material witness statute, the government must establish “probable cause.” Bacon,
Once the government demonstrated to a neutral magistrate that it had probable cause to believe al-Kidd had information material to a criminal proceeding and was likely to run off to Saudi Arabia, the Whren rule applied with full force, and nothing in Edmond or any case the majority cites suggests otherwise.
Third, the Supreme Court’s decision in United States v. Villamonte-Marquez,
Respondents, however, contend ... that because the Customs officers were accompanied by a Louisiana State Policeman, and were following an informant’s tip that a vessel in the ship channel was thought to be carrying marijuana, they may not rely on the statute authorizing boarding or inspection of the vessel’s documentation. This line of reasoning was rejected in a similar situation in Scott ... and we again reject it.
Id. at 584 n. 3,
Like the statute at issue in VillamonteMarquez, some version of the material witness statute has been on the books since the late-1700s. See Bacon,
Finally, Villamonte-Marquez also underlines the point that, even assuming we must consider the “programmatic purpose” behind al-Kidd’s detention, the relevant inquiry is not into the motivations of individual officers who obtained and executed the particular warrant on which al-Kidd was detained, but into the “programmatic purpose” that provides the constitutional justification for the material witness statute. See Edmond,
But even if al-Kidd’s arrest on a pretextual material witness warrant violated his Fourth Amendment constitutional right not to be subjected to an unreasonable seizure, any such right was certainly not “clearly established” in March 2003. As the majority notes, for a right to be clearly established there need not be a case on point, but the violation must be “apparent” to a reasonable official. Hope v. Pelzer,
No court had ever questioned the constitutional validity of the material witness statute. No court had ever held that the “programmatic purpose” test applied to searches or seizures conducted pursuant to a warrant. No court had held that “probable cause” in the Fourth Amendment meant only probable cause to believe the subject of the search or seizure had committed criminal wrongdoing. Every pronouncement by the Supreme Court would have suggested that the pretextual use of a valid warrant was perfectly legal.
Eight months after al-Kidd’s arrest, for the very first time, and in dicta no less, a court of appeals stated that the pretextual use of material witness warrants was “improper.” United States v. Awadallah,
The Supreme Court has flatly stated that pretextual searches and seizures conducted pursuant to a warrant issued upon objectively reasonable probable cause do not violate the Fourth Amendment. Nothing in the majority opinion provides any justification for departing from this rule. Attorney General Ashcroft is entitled to qualified immunity.
Al-Kidd’s remaining claim is that Ashcroft is personally liable for al-Kidd’s detention on a material witness warrant’ obtained on the basis of intentional or reckless material misrepresentations or omissions. Of course, this claim raises totally different constitutional issues-than that based on pretext.
It is not disputed that al-Kidd has a clearly established constitutional right not to be detained on a warrant based on an agent’s deliberate or reckless misrepresentations or omissions. See Franks v. Delaware,
The majority concludes Ashcroft may be held liable in al-Kidd’s Bivens action for his “knowing failure to act” in the light of evidence of unauthorized abuses, and that al-Kidd’s pleadings are sufficient to establish plausibly that Ashcroft had knowledge of “abuses” occurring under § 3144 and failed to act to correct these abuses.
What “abuses”? The abuses to which al-Kidd refers in his allegations are not lies or omissions included in supporting affidavits, but pretextual arrests. But, as shown above (in Part II, “Qualified Immunity”), such “abuses” violate neither the statute nor the Constitution. And to allege Ashcroft’s knowledge of these “abuses” does not allege facts that plausibly establish Ashcroft knew of or encouraged his subordinates recklessly to disregard the truth in the preparation of supporting affidavits. See Franks,
In reviewing al-Kidd’s allegations regarding Ashcroft’s personal involvement, ask yourself after each one, “Did al-Kidd here allege facts that plausibly establish Ashcroft ordered or knowingly tolerated agents swearing to false facts in their affidavits?”:
*993 • Ashcroft stated publicly that “[aggressive detention of lawbreakers and material witness warrants is vital to preventing, disrupting, or delaying new attacks.”
• A Justice Department policy memo stated that federal law enforcement personnel were to use “every available law enforcement tool” to arrest terror “suspects.” This included the use of “aggressive arrest and detention tactics.”
• One Justice Department official admitted that the material witness policy amounted to “preventive detention.”
• Other Justice Department officials admitted that material witness warrants were an important “investigative tool” whereby they could obtain “evidence” about the witness. Similarly, FBI Director Mueller stated that several “suspects” had been detained on material witness warrants.
• One news report stated that 50% of those detained on material witness warrants were never called to testify. One Justice Department official admitted that this statistic proved that material witness warrants were a “ruse” to detain suspects.
• “Abuses” occurring under the statute were “highly publicized” in the media.
• The department apologized to several individuals arrested on material witness warrants.
In each case, the answer to the question put is a flat “no.” These allegations certainly do suggest Ashcroft encouraged prosecutors to use valid material witness warrants as a means to accomplish other law-enforcement objectives. But none of the allegations contain facts that plausibly establish Ashcroft’s knowledge that his subordinates were obtaining material witness warrants on the basis of deliberately or reddessly false evidence or on facially invalid warrants. Some of al-Kidd’s allegations suggest precisely the opposite— that Justice Department officials were careful to ensure they had probable cause to- believe that- the targeted witness had information material to a criminal proceeding and was likely to flee before seeking a material witness warrant:
• David Nahmias, Counsel to the Assistant Attorney General, stated that when they were unable to charge a particular suspect, they “got enough information at least to make him a material witness.” ER 32 (emphasis added).
• Attorney General Alberto Gonzales, Ashcroft’s successor, stated that when the agency became interested in a subject, the agency would “consider” its options. ER 31.
Al-Kidd’s pleadings do establish that some material witnesses were detained who did not testify or did not prove to have material information. But these facts do not plausibly suggest federal agents employed intentional or reckless mendacity in swearing out false affidavits. Some witnesses’ testimony may not have been required because defendants took plea deals or prosecutors found other sources of information. In some cases, agents may simply have been wrong or may have acted “hastily” or negligently in conducting investigations. That does not amount to a Franks violation. See Franks, 438 U.S. at 165,
The majority also concludes al-Kidd has plausibly alleged that Ashcroft “purposely instructed his subordinates to bypass the plain reading of the statute.” Maj. Op. at 976. All of the allegations the majority cites in support of this proposition demonstrate Ashcroft “purposely instructed” his subordinates to use the statute pretextually, but not unlawfully.
Because al-Kidd has not pleaded adequately that Ashcroft, by his own actions, violated al-Kidd’s constitutional rights, I dissent from part B.4 of the majority opinion.
IV. Absolute Immunity
The remaining question is whether and to what extent Ashcroft enjoys absolute immunity for his alleged actions — and in-actions — related to the issuance of material witness warrants. As explained above, I conclude all of al-Kidd’s claims are preeluded on other grounds. Accordingly, were it up to me, I would not reach this question. However, because the majority addresses the issue, and because I think the majority’s “immediate purpose” test is difficult to define and apply, and is unsupported by case law, I will explain my disagreement.
In Imbler v. Pachtman,
However, despite the tremendous importance of absolute immunity, prosecutors do not enjoy absolute immunity for every act they undertake as prosecutors. To determine whether a prosecutor enjoys absolute immunity, rather than the lesser qualified immunity afforded all government agents, courts consider the “the nature of the function performed, not the identity of the actor who performed it.” Kalina,
Deciding which witnesses to call at trial is part of the prosecutor’s role as an advocate, Imbler,
Ashcroft, of course, did not himself file the application or swear out the facts in support of the application'. Ashcroft acted only as a supervisor. Though a supervisor’s acts are in one sense always administrative, a supervisor enjoys absolute immunity only for supervisory decisions that “require legal knowledge and the exercise of related discretion” and relate to activities for which the supervised attorney enjoys absolute immunity. Van de Kamp,
Kalina v. Fletcher makes clear Ashcroft lacks absolute immunity for claims related to his supervision of the FBI agents, such as Mace, who acted as witnesses in support of a warrant application. See
I would hold that so long as the “criminal proceeding” for which the material witness warrant is sought is a criminal trial, rather than an investigatory proceeding,
Moreover, like other quasi-judicial acts, an individual’s detention on a material witness warrant is subject to continuing oversight, and errors may be corrected through the judicial process. Cf. Mitchell,
Ultimately, the decision whether to seek a material witness warrant in conjunction with an upcoming trial is akin to both the decision to call a witness at trial and to seek a warrant to arrest a suspect. A prosecutor enjoys absolute immunity for both of these acts, regardless of any improper motive, and should enjoy a similar immunity here. See Imbler,
Both the majority and al-Kidd concede that a prosecutor sometimes has absolute immunity for the decision to seek a material witness warrant. See Maj. Op. at 959-60. The majority, returning to its trope the prosecutors’ pretextual motivations invalidate an otherwise properly obtained warrant, see Maj. Op. at 962-63, contends, however, the cases holding a prosecutor has absolute immunity for the issuance of a material witness warrant — Odd, Betts, Daniels, and Swafford — are distinguishable because none involved allegations a prosecutor intended to use the warrant to investigate the detained subject rather than to secure the witness’s appearance at trial. See Maj. Op. at 959-60.
Rejecting what it calls a “formalistic taxonomy of acts that are inherently either prosecutorial or investigative, regardless of what each act is really serving to accomplish” in favor of a “teleological perspective,” Maj. Op. at 962 (emphasis added), the majority applies an “immediate purpose” test to determine whether a prosecutor is performing an investigative rather than a prosecutorial function — if the prosecutor’s “immediate purpose” was to investigate the subject of the warrant rather than to secure the witness’s appearance at trial, the prosecutor enjoys only qualified, rather than absolute, immunity. Id. at 962-63. Again the majority invites inquiry into the subjective motivations of individual officers. One can tell that easily: watch for its use of the word “really.”
It is true that a few courts have made reference to “purpose” in applying the functional approach.
In Buckley, the Supreme Court held that a prosecutor lacked absolute immunity for fabricating evidence to present to a grand jury because the grand jury’s “immediate purpose was to conduct a more thorough investigation of the crime — not to return an indictment against a suspect against whom there was already probable cause to arrest.”
Neither does KRL v. Moore. In that case, we held that whether a prosecutor had absolute immunity for the issuance of a search warrant depended on the purpose of the warrant, not of the prosecutor in seeking the warrant.
We did not inquire into the prosecutor’s motives in seeking the second search warrant. We inquired into the purpose of the warrant by looking to what evidence the search warrant recited it sought. That evidence was not possibly related to the prosecution of Womack, the one suspect who had been arrested, for illegally dumping toxic wastes; it was evidence of fraud and diversion of funds that had nothing to do with waste disposal. Id. at 1113. It does not take a mind-reader to determine that where the subject matter of the prosecution is illegal toxic waste disposal on partnership land, a search warrant to search for evidence of fraud and illegal diversion of business funds is designed to accomplish something other than proving the elements of the charged environmental crime. It merely requires reading the warrant.
Buckley and ERL are easy to apply here: if the material witness warrant on which al-Kidd had been detained sought to force his appearance at an investigatory proceeding or a police interview, rather
To the extent that KRL authorizes any inquiry into what was “really” the prosecutor’s motivation, such an inquiry should be strictly limited to cases where a prosecutor approves a search warrant application, because seeking the issuance of a search warrant can be an investigative function, while seeking an arrest warrant cannot. The KRL court itself carefully limited its holding to the search warrant context, and expressly distinguished the arrest warrant context. Id. at 1113 (“We must emphasize that our result would not necessarily be the same had the prosecutors reviewed an arrest warrant, rather than a search warrant, prior to submission. As noted supra, the Court has stated that a prosecutor does not serve as an advocate before probable cause to arrest anyone has been established, Buckley ..., but that the determination of whether probable cause exists to file charging documents is the function of an advocate.... ”). Preparing a search warrant is not a “core” advocacy function like the preparation of an arrest warrant, the filing of charges, or the preparation of a material witness warrant.
But under the majority’s approach, what was “really” a prosecutor’s personal, subjective “immediate purpose” is always relevant to the determination whether absolute immunity protects any act by a prosecutor — in court or out of court. A prosecutor would lose his absolute immunity if he prosecutes a low-level mafia functionary for the sole purpose of inducing that functionary to testify against his capo. And, absolute immunity would not clothe any question asked by a prosecutor of a witness on the stand; the prosecutor could be sued for damages on the claim he “really” asked the question to assist in the investigation of the witness, or some other person, for other crimes. Of course, what the prosecutor “really” intended in asking the question would — as in all inquiries into intent — be a factual inquiry, entailing precisely the kind of expensive discovery and litigation immunity was designed to avoid. See Harlow,
Not so, says the majority. To “cabin” this obviously problematic result, the majority states that when a prosecutor brings any prosecution, the prosecutor’s “immediate purpose” is, of course, to bring a prosecution, even if the prosecutor’s true intention is to obtain evidence for some other investigation. Maj. Op. at 962-63. But there is no principled reason this is true, other than the majority’s say-so. And, if true, why isn’t the prosecutor’s “immediate purpose” in this case to secure a witness’s appearance at trial rather than to obtain evidence against al-Kidd? The majority provides no clues as to how we are to distinguish which purposes are “immediate” and which are “really” not.
V. Conclusion
The majority opinion closes with a quote from Blackstone. What Blackstone describes and condemns therein — the indefinite and secret detention of individuals accused of no crime in harsh conditions — is simply not a description of this case. Even the majority agrees that the harsh conditions of al-Kidd’s confinement are not before us because al-Kidd has not adequately pleaded John Ashcroft’s personal responsibility for such conditions. Al-Kidd’s confinement was neither indefinite nor in secret. He was detained on a warrant issued by a neutral magistrate. The duration of that confinement was subject to continuing judicial supervision. There is no allegation that al-Kidd was held incommunicado. Nor is there any allegation al-Kidd was somehow denied the right to petition for a writ of habeas corpus, a right that has long secured individuals’ freedom from the horrors Blackstone envisioned. We are not called upon to judge the constitutionality of the material witness statute. And we are not called upon to judge whether al-Kidd should be released, only whether he is entitled to proceed in his suit to recover money damages from the pocket of a cabinet-level official. Were we presented with the Blackstonian case the majority envisions, I would surely agree.
. As the majority states, the Al-Hussayen indictment alleged that one of the IANA’s purposes was "indoctrination, recruitment of members, and the instigation of acts of violence and terrorism.” The Al-Hussayen indictment also alleged Al-Hussayen himself was the sole registrant of another website, www.alasr.ws, which was affiliated with the IANA’s website through a third website belonging to the IANA. The www.alasr.ws website published an article in June 2001 entitled "Provision of Suicide Operations,” which advocated suicide bombings and "bringing down” aircraft.
. I express no opinion as to parts B.l ("Qualified Immunity Generally”) and B.2 ("Qualified Immunity for Supervisors”). I also express no opinion as to part C ("Personal Jurisdiction”). Because I conclude alKidd cannot proceed on his claims against Ashcroft, I would not reach the difficult question whether this court has pendent appellate jurisdiction over Ashcroft’s appeal of the district court's order denying his motion to dismiss al-Kidd's claims against him for lack of personal jurisdiction. If it is not necessary to decide an issue, it is necessary for a common-law court not to decide it.
. Al-Kidd later makes this claim separate and distinct from his pretext claim. It is addressed infra, parts III and IV.
. In Macon, an undercover police officer purchased pornographic materials from a bookstore. The officer left the bookstore, consulted with fellow officers, and, upon concluding the book was pornographic, returned to the bookstore and arrested the storekeeper and seized the marked bill the officer used to purchase the book. The Supreme Court held that the purchase, in a voluntary transaction, of wares by an undercover officer is not a search within the meaning of the Fourth Amendment. Id. at 469,
. In Scott, officers obtained a warrant to intercept the phone calls of a suspected drug dealer. Id. at 131,
. For example, imagine two drug smugglers speeding, illegally, down the highway who are stopped by police. Each smuggler is identical in every respect, save one: one is stopped by an officer totally ignorant of the fact that the car is carrying drugs, the other by an officer who suspects the driver's involvement in a drug ring. Seen from the perspective of the two drivers, each should face an identical penalty. Each broke the law and made himself subject to being stopped. But if the suspicious officer's subjective intentions invalidate his stop, then one driver escapes punishment while the other does not.
. This is not to deny the existence of what the majority terms the "substantive component” of the Fourth Amendment. Maj. Op. at 967. Instead, this merely demonstrates that this "substantive component” of the Fourth Amendment can be satisfied by any governmental interest — whether to detain a wrongdoer or to provide for the production of evidence against a wrongdoer — weighty enough to justify an intrusion into individual rights.
. The majority needlessly casts doubt upon the validity of § 3144. Even if the Supreme Court’s statements on the issue are dicta, they
. Steagald also demonstrates that the majority's invocation of the Wilkes cases is inapposite. The evil associated with the general writs and writs of assistance used in the colonial period was that these warrants "provided no judicial check on the determination of the executing officials that the evidence available justified an intrusion into a particular home.” Id. at 220,
. The majority contends it does not render the material witness statute superfluous by arguing that if the statute is "genuinely” used to secure the testimony of a witness at trial, a showing of probable cause that the arrestee has engaged in wrongdoing is not required, and that only when the statute is being used as a pretext for criminal investigation is a showing of probable cause "including individualized suspicion of criminal wrongdoing ” required. Maj. Op. at 988-89. (emphasis in original). This argument suggests that the probable cause standard for issuing a warrant can vary depending on the subjective intention of the officer seeking the warrant. Not only is there no support in the case law for such a position, it is directly contradicted by the holding in Whren.
. And we have been wasting much printer’s ink on material witness statutes which have existed at least since the late Eighteenth Century. See Bacon,
. Obviously, we are not bound by the decision of another circuit, especially if that part of the decision was dicta. In any event, unlike in our circuit, dicta in the Second Circuit is not binding authority even in the Second Circuit. Jimenez v. Walker,
. Ashcroft cannot be held liable for the acts of his subordinates on a theory of respondeat superior or vicarious liability. Id. at 1948. It is doubtful that the majority’s "knowing failure to act" standard survived Iqbal. There, the Court held that Ashcroft could not be held liable for his "knowledge and acquiescence” in his subordinates’ alleged unconstitutional discrimination against Muslim men after 9/11. Id. at 1949. The Court explained: "[P]urpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities." Id. at 1949. Here, because al-Kidd has not alleged that Ashcroft knew his subordinates were making deliberate or reckless material misrepresentations or omissions in material witness applications, much less that it was Ashcroft’s purpose they do so, alKidd’s allegations clearly fail Iqbal's requirements.
. Justice Scalia has observed that the doctrine of absolute prosecutorial immunity has strayed far from its common law roots, but that the doctrine nonetheless retains its vitality. See Kalina v. Fletcher,
. See, e.g., Odd v. Malone,
. See Buckley v. Fitzsimmons,
. The Third Circuit’s decision in Odd did not, as the majority concludes, hold that the policy considerations underlying absolute immunity do not apply in the material witness context.
. The odd result of the majority's approach is that Ashcroft enjoys absolute immunity if he acts out of racial or partisan animus, but enjoys only qualified immunity if he acts in order to protect the public or investigate a suspected criminal. See Bernard v. County of Suffolk,
. See, e.g., Buckley,
. See generally Schrob v. Catterson
. Although I would distance myself from a certain measure of bristling righteousness in its remarks that al-Kidd was a U.S. citizen, married and with children at the time of his arrest. Maj. Op. at 951. For all of that, his rights under the Constitution against unlawful arrest were no greater than those of an illegally entered, Mexican, childless spinster.