ABDULLAH AL-KIDD, Plaintiff-Appellee, v. JOHN ASHCROFT, Defendant-Appellant.
No. 06-36059
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
September 4, 2009
580 F.3d 949
D.C. No. CV-05-00093-EJL OPINION. Appeal from the United States District Court for the District of Idaho, Edward J. Lodge, District Judge, Presiding. Argued April 8, 2008. Submitted May 18, 2009. Seattle, Washington.
Before: David R. Thompson, Carlos T. Bea, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
Partial Concurrence and Partial Dissent by Judge Bea
Robert M. Loeb and Matthew M. Collette, Department of Justice, Civil Division, Washington, D.C., for the defendant-appellant.
Lee Gelernt, Immigrants’ Rights Project, American Civil Liberties Union, New York, New York, for the plaintiff-appellee.
Alison M. Tucher, Morrison & Foerster, San Francisco, California, for amici curiae Former Federal Prosecutors.
Leo P. Cunningham and Lee-Anne Mulholland, Wilson Sonsini Goodrich & Rosati, Palo Alto, California, for amici curiae National Association of Criminal Defense Lawyers and Human Rights Watch.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
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 Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home
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,
FACTS AND PROCEDURAL BACKGROUND1
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.2 No evidence of criminal activity by al-Kidd was ever discovered. Al-Kidd
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),3 including one official “who was recently arrested in New York.” It ended with the statement, “[d]ue to Al-Kidd’s demonstrated involvement
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
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 al-Kidd 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.4 In July 2004, al-Kidd was fired from his job. He alleges he was terminated when he was denied a security clearance because of his arrest. He is now separated from his wife, and has been unable to find steady employment. He was also deprived of his chance to study in Saudi Arabia on scholarship.
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 al-Kidd’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 statute5 as a pretext “to arrest and detain terrorism sus-
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/agcrisisremarks10_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),6 which describe the use of “aggressive
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, iden-
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, 202 F. Supp. 2d 55, 59-61 (S.D.N.Y. 2002) (Awadallah I), rev’d on other grounds, 349 F.3d 42 (2d Cir. 2003) (Awadallah II), which discusses the conditions of confinement of another putative material witness, Osama Awadallah, held in New York City. The complaint avers that Ashcroft “knew or reasonably should have known of the unlawful, excessive, and punitive manner in which the federal material witness statute was being used,” and that such manner “would also foreseeably subject” detainees “to unreasonable and unlawful use of force, to unconstitutional conditions of confinement, and to punishment without due process.”
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
Ashcroft moved to dismiss under
Ashcroft filed a timely interlocutory appeal.
A. Failure to State a Claim
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, 373 F.3d 952, 957 (9th Cir. 2004). However, because Ashcroft chose to exercise his right to appeal before a fuller record could be developed, we proceed as we must in a review of all Rule 12(b)(6) motions, accepting as true all facts alleged in the complaint, and drawing all reasonable inferences in favor of the plaintiff. See Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). To avoid dismissal under Rule 12(b)(6), a plaintiff must aver in his complaint “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
We review de novo the district court’s rulings on absolute and qualified immunity. KRL v. Moore, 384 F.3d 1105, 1110 (9th Cir. 2004); Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1179 (9th Cir. 2007).
B. Personal Jurisdiction
Ashcroft also argues that the district court does not have personal jurisdiction over him. Because denials of motions to
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 non-appealable 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.
408 F.3d 1127, 1134 (9th Cir. 2005) (quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 51 (1995)) (internal quotation marks, citations, and alterations omitted). Thus, Ashcroft must demonstrate that the issue of personal jurisdiction is either (1) “inextricably intertwined” with or (2) “necessary to ensure meaningful review of” the issues of absolute or qualified immunity, in order for us to exercise the pendent appellate jurisdiction he requests.
DISCUSSION
Al-Kidd asserts three independent claims against Ashcroft. First, he alleges that Ashcroft is responsible for a policy or
Ashcroft argues that he is entitled to absolute prosecutorial immunity as to the
A. Absolute Immunity
[1] In Bivens actions and those taken under
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, 500 U.S. 478, 486-87 (1991) (quoting Forrester v. White, 484 U.S. 219, 224 (1988); Harlow v. Fitzgerald, 457 U.S. 800, 811 (1982)). “[I]f application of the principle is unclear, the defendant simply loses,” and receives only the default of qualified immunity. Buckley, 509 U.S. at 281 (Scalia, J., concurring).
[2] 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 (quoting Burns, 500 U.S. at 486; Forrester, 484 U.S. at 229). “In Imbler, the Court concluded that the ‘reasons for absolute immunity appl[ied] with full force’ to the conduct at issue because it was ‘intimately associated with the judicial phase of the criminal process.’ ” Van de Kamp v. Goldstein, 129 S. Ct. 855, 861 (2009) (citing Imbler, 424 U.S. at 430). While the “duties of the prosecutor in his role as advocate for the State involve
As the Supreme Court has acknowledged, the distinction between the roles of “prosecutor” and “investigator” is not always clear. See Imbler, 424 U.S. at 431 n.33 (“Drawing a proper line between these functions may present difficult questions . . . .“). The Supreme Court has given us few bright lines,9 and its cases on prosecutorial immunity have proceeded on a function-by-function basis. Thus, the Court has held that prosecutors receive absolute immunity for initiating a prosecution, id., for presenting false or perjured testimony, id., for appearing in court to apply for a search warrant, Burns, 500 U.S. at 492, and for preparing and filing an information and a motion for an arrest warrant, Kalina v. Fletcher, 522 U.S. 118, 129 (1997). By contrast, prosecutors receive only qualified immunity for giving legal advice to the police, Burns, 500 U.S. at 496, for investigating and fabricating physical evidence at a crime scene, Buckley, 509 U.S. at 274-75 (involving a bootprint left at the scene of a crime), for holding a press conference, id. at 276-78, and for acting as a complaining witness in support of a warrant application, Kalina, 522 U.S. at 130-31. See also Van de Kamp, 129 S. Ct. at 861.
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
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, 726 F.2d 79, 81 (2d Cir. 1984); Daniels v. Kieser, 586 F.2d 64, 68-69 (7th Cir. 1978); see also White ex rel. Swafford v. Gerbitz, 860 F.2d 661, 665 n.4 (6th Cir. 1988) (suggesting in dicta that the decision to seek a material witness order is prosecutorial). But see Odd v. Malone, 538 F.3d 202, 217 (3d Cir. 2008) (holding “that the policies underlying the recognition of prosecutorial immunity do not apply with the same force” to detained material witnesses because “the aggrieved persons are unindicted third-party witnesses rather than criminal defendants“). In Betts and Daniels, the plaintiffs, who had been previously subpoenaed as witnesses, failed to appear on the day they were set to testify, and the prosecutor sought a material witness warrant. Betts, 726 F.2d at 80; Daniels, 586 F.2d at 66. The Seventh Circuit in Daniels held that
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 decision to arrest was an act in furtherance of an investigative or national security function, for which the Attorney General may claim only qualified immunity. That is, al-Kidd claims he was arrested not in order to secure his testimony at Al-Hussayen’s trial, but in order to detain, interrogate, and gather evidence against him, in particular. He notes that, in both Betts and Daniels, there was never any question that the material witness arrest was made for any reason other than to secure the witnesses’ testimony at trial.
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, 356 F.3d 495, 504 (2d Cir. 2004) (alleging “racially invidious or partisan prosecutions“); Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 779 (9th Cir. 2001) (involving prosecutor accused of initiating prosecution in order “to deny the plaintiffs access to public works construction job sites“); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (“To foreclose immunity upon allegations that judicial and prosecutorial decisions were conditioned upon a conspiracy or bribery serves to defeat these policies.“). None of these cases attempts to distinguish between a prosecutor’s investigative or national security func-
[3] The cases distinguishing investigative and prosecutorial function take into account the goal of performing an action to determine function. In Buckley v. Fitzimmons, the Supreme Court held that the prosecutors lacked absolute immunity for their actions before they had probable cause to arrest a suspect because “[t]heir mission at that time was entirely investigative in character.” 509 U.S. at 274. Even after a grand jury had been empaneled, the prosecutor’s actions before it were not shielded by absolute immunity because “its immediate purpose was to conduct a more thorough investigation of the crime—not to return an indictment against a suspect whom there was already probable cause to arrest.” Id. at 275.10
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. 384 F.3d at 1108. The following month, however, prosecutors obtained two additional warrants to search for evidence with little relevance to the charges in the indictment. Id. at 1109. We held that the prosecutors were engaged, at least in part, in investigative functions when they requested
Likewise, in Genzler v. Longanbach, 410 F.3d 630, 638 (9th Cir. 2005), we noted that “[w]itness interviews may serve either an investigative or an advocacy-related function,” and demonstrated how that function can be inferred from the circumstances of the interviews. In that case, the timing of the interviews, id. at 639, 642, as well as the “nature of the information obtained,” id. at 640, led us to hold that “evidence in the record supports the conclusion that [the defendants] were
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, 726 F.2d at 81; Daniels, 586 F.2d at 68-69. The Daniels court noted that “[i]n seeking to guarantee Daniels’ presence at the trial through the material witness warrant, defendant was attempting to prove all elements charged in the indictment.” Id. at 68. Other circuits have likewise used the language of purpose in determining function.13
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, 509 U.S. at 274. A witness interview‘s function may be to gather evidence, or to prepare the witness to testify at imminent trial. Genzler, 410 F.3d at 638. And the power to arrest, even as a material witness, can be investigatory. As cited in al-Kidd‘s complaint, Michael Chertoff, then Assistant Attorney General for the DOJ‘s Criminal Division, described the material witness statute as “an important investi
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 for that reason that the Supreme Court has spoken only of “immediate purpose.” Buckley, 509 U.S. at 275 (emphasis added). As a common law court, we can rule only on the case before us. We believe, however, that while the prosecutor who files charges may hope, eventually, that the petty crook will implicate his boss, the immediate purpose of filing charges is to begin a prosecution—the better to pressure the defendant into providing information.
[5] 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.14 We emphasize that our hold
- 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. Betts, 726 F.2d at 80 (“On Monday morning the trial proceeded and the prosecutor called plaintiff as his first witness.“); Daniels, 586 F.2+d 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, 410 F.3d at 641-43, that al-Kidd‘s arrest functioned as an investigatory arrest or national security-related preemptive detention, rather than as one to secure a witness‘s testimony for trial. Finally:
- 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 success[ ]” 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, fulfils 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
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, 533 U.S. 194, 201 (2001). “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.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks omitted). It is within our “sound discretion” to address these two prongs in any sequence we see fit. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009). Here, we apply the two-step Saucier analysis in the traditional sequence, as this sequence “promotes the development of constitutional precedent,” which is especially valuable in addressing constitutional questions such as the one at hand, “that do not frequently arise in cases in which a qualified immunity defense is unavailable.” Id.
2. Qualified Immunity for Supervisors
Because qualified immunity is “an immunity from suit rather than a mere defense to liability,” Mitchell, 472 U.S. at 526, courts have also evaluated the sufficiency of the allegations of the defendant‘s personal involvement in the deprivation of the right at the second stage of the qualified immunity analysis. Neither a
In conducting qualified immunity analysis . . . , courts do not merely ask whether, taking the plaintiff‘s allegations as true, the plaintiff‘s clearly established rights were violated. Rather, courts must consider as well whether each defendant‘s alleged conduct violated the plaintiff‘s clearly established rights. For instance, an allegation that Defendant A violated a plaintiff‘s 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, 536 U.S. at 751 n.9 (Thomas, J., dissenting). In Kwai Fun Wong v. United States, we, on interlocutory appeal, dismissed part of a Bivens action for failure to state a claim where the complaint “fail[ed] to identify what role, if any, each individual defendant had in placing [the plaintiff] in detention.” 373 F.3d at 966.
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, 946 F.2d 630, 646 (9th Cir. 1991) (internal quotation marks omitted).
3. 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
a. Al-Kidd‘s Fourth Amendment Rights Were Violated.
[6] The
The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall 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, 449 F.2d 933, 942 (9th Cir. 1971).
The Supreme Court has never held that detention of innocent persons as material witnesses is permissible under the Fourth Amendment,15 and this circuit, in one of the few
[T]he 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, 11 U.S. (7 Cranch) 339, 348 (1813). Its most famous modern formulation comes from Justice Stewart‘s opinion in Beck v. Ohio:
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.
379 U.S. 89, 91 (1964). This definition has been reiterated in Supreme Court cases over the decades:
This Court repeatedly has explained that “probable cause” to justify an arrest 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 circum
stances shown, that the suspect has committed, is committing, or is about to commit an offense.
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); see also Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.“). Probable cause has both a burden-of-proof component (facts sufficient to make a reasonable person believe . . . ) and a substantive component ( . . . that the suspect is involved in crime). “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.” Brinegar v. United States, 338 U.S. 160, 175 (1949) (citations and quotation marks omitted). An arrest of a material witness is not justified by probable cause because the two requirements of
The dissent disputes this traditional definition of probable cause, contending that no substantive component exists and that Zurcher v. Stanford Daily, 436 U.S. 547 (1978), prevents an inquiry into whether wrongdoing has occurred. Dissent at 12338. The dissent misreads Zurcher and confuses the different requirements for probable cause in situations for the seizure of a person and the probable cause required for a search warrant. As Zurcher explains, “while probable cause for arrest requires information justifying a reasonable belief that a crime has been committed and that a particular person committed it, a search warrant may be issued on a complaint which does not identify any particular person as the likely offender.” Id. at 556 n.6. Thus, the dissent‘s analogy to Zurcher is inapplicable, and nothing in our holding here contravenes Zurcher.
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, 202 F. Supp. 2d at 71 (holding the Bacon language to be dicta because it was unnecessary to the conclusion that the affidavit was insufficient to show impracticability), with In re Application for a Material Witness Warrant, 213 F. Supp. 2d 287, 291 (S.D.N.Y. 2002) (finding the same language to be a holding).
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 (citation omitted).
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 commit
ted by others. The police expected the information elicited to help them apprehend, not the vehicle‘s occupants, but other individuals.
Id. at 423. As Justice Stevens wrote in concurrence, “[t]here is a valid and important distinction between seizing a person to determine whether she has committed a crime and seizing a person to ask whether she has any information about an unknown person who committed a crime a week earlier.” Id. at 428 (Stevens, J., concurring in part, dissenting in part).20 That is precisely the distinction at work here, and the reason we hold that Ashcroft‘s policy as alleged was unconstitutional.
[10] 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, 531 U.S. at 457, and finding that the purpose of the policy alleged in al-Kidd‘s first
[11] Further, the dissent‘s assertion that we are suggesting “the only governmental interest of sufficient weight to justify an arrest is a reasonable belief that the arrestee has committed a crime” grossly mischaracterizes our holding. Dissent at 12336. To the contrary, we recognize that when the material witness statute is genuinely used to secure “testimony of a person . . . material in a criminal proceeding” because “it is shown that it may become impracticable to secure the presence of the person by subpoena,”
[12] 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, 349 F.3d at 59 (“[I]t would be improper for the government to use
b. Al-Kidd‘s Right Was “Clearly Established.”
Ashcroft alternatively contends that if we conclude that the use of material witness orders for investigatory purposes vio
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 [un]constitutional, this may be due more to the obviousness of the illegality than the novelty of the legal issue.’ ” Moreno v. Baca, 431 F.3d 633, 641 (9th Cir. 2005) (quoting Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002)). Indeed, as the Supreme Court has stated:
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 pre-existing law the unlawfulness must be apparent.”
Hope, 536 U.S. at 739 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (internal citations omitted). “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. at 741.
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. 449 F.2d at 943.
[13] 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. 531 U.S. at 47. That holding was reaffirmed the following year in Ferguson, 532 U.S. at 81-83, which highlighted the close connection between the investigative “programmatic purpose” and the search scheme that was ruled unconstitutional. Those decisions, which emphasized that an investigatory programmatic purpose would invalidate a scheme of searches and seizures without probable cause, should have been sufficient to put Ashcroft on notice that the material witness detentions—involving a far more severe seizure than a
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, 442 U.S. 200, 213 (1979) (quoting Henry v. United States, 361 U.S. 98, 100-01 (1959)) (internal citation omitted). The Fourth Amendment “reflect[s] the determination of those who wrote the Bill of Rights that the people of this new Nation should forever ‘be secure in their persons, houses, papers, and effects’ from intrusion and seizure by officers acting under the unbridled authority of a general warrant.” Stanford v. Texas, 379 U.S. 476, 481 (1965).
The facts alleged of al-Kidd‘s arrest, that he was arrested because he was associated with the webmaster of an allegedly jihadist website, demonstrate the continued relevance of the Founders’ concerns. The Fourth Amendment was, in large measure, a direct response to the so-called “Wilkes cases.” As summarized by the Supreme Court:
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 (alteration in original) (footnotes omitted). Within three days of the issuance of Halifax‘s general warrants, forty-nine people had been arrested, none of whom was named in the warrant, but all of whom were alleged associates of the allegedly seditious pamphleteer. Nelson B. Lasson, The Fourth Amendment to the Constitution 43-44 (1937). The warrant authorizing al-Kidd named him in particular, and so was not a general warrant in that sense. But the result was the same: gutting the substantive protections of the Fourth Amendment‘s “probable cause” requirement and giving the state the power to arrest upon the executive‘s mere suspicion.
Finally, months before al-Kidd‘s arrest, one district court in a high-profile case had already indicated, in the spring of 2002, that
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, 202 F. Supp. 2d at 77 n.28 (citation omitted, first emphasis added). The statement was dicta in a footnote of a district court opinion. But it was categorical, and it addressed exactly what al-Kidd alleges happened ten months after the opinion was first issued. It is difficult to imagine what, in early 2003,22 might have given John Ashcroft “fair[er] warning” that he could be haled into court for his alleged material witness policies. Hope, 536 U.S. at 741.
[14] 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
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, 472 U.S. at 524 (quoting Harlow, 457 U.S. at 819) (internal citations omitted).
4. The § 3144 Claim
In addition to alleging that Ashcroft misused
Prior to Bell Atlantic Company v. Twombly, 550 U.S. 544 (2007), we held that a plaintiff “does not need to show with great specificity how each defendant contributed to the violation of his constitutional rights. Rather, he must state the allegations generally so as to provide notice to the defendants and alert the court as to what conduct violated clearly established law.” Preschooler II, 479 F.3d at 1182. Ashcroft argues that al-Kidd‘s allegations as to Ashcroft‘s personal involvement in the § 3144 Claim amount simply to “sheer speculation,” and are insufficient to state a claim under 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
Since the argument and initial briefing in this case, the Supreme Court, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), has clarified Twombly‘s reach to cases such as these. Iqbal concerned claims against a number of defendants, including FBI Director Mueller and Attorney General Ashcroft, made by Javaid Iqbal, a Muslim Pakistani who was part of the mass roundup of Muslim aliens on immigration charges following the September 11 attacks. Iqbal claimed that Mueller and Ashcroft were responsible for selectively placing detainees in their restrictive conditions on account of their race and religion. Id. at 1951. The Supreme Court found the allegations in the complaint insufficient to state a discrimination claim under the above-discussed Twombly “plausibility” standard. Id. at 1952. The Court held that a pleading “that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’ ” is insufficient to state a claim under
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 ‘formulaic recitation of the elements’ of a constitutional dis
[15] Here, unlike Iqbal‘s allegations, al-Kidd‘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 Muller 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 conclusory terms, al-Kidd does not rely solely on his assertion
Al-Kidd need not show that Ashcroft “actually instruct[ed] his subordinates to bypass the plain text of the statute,” as Ashcroft contends. The complaint clearly alleges facts which might support liability on the basis of Ashcroft‘s knowing failure to act in the light of even unauthorized abuses, but also alleges facts which may support liability on the basis that Ashcroft purposely used the material witness statute to preventatively detain suspects and that al-Kidd was subjected to this policy.25 As discussed above, Ashcroft publically stated
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
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 12347. The dissent further contends that this does not amount to a Franks violation. Franks, 438 U.S. at 165. As discussed above, al-Kidd pleads facts that go much farther than merely showing that he was detained under the material witness statute and did not testify. The pleadings show that Ashcroft explicitly stated that enhanced techniques 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.” Other top DOJ officials stated that the material witness statute was viewed as an important “investigative tool,” and that al-Kidd‘s arrest was touted as one of the government‘s anti-terrorism successes, without any mention that he was being held as a material wit
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, 500 U.S. 226, 236 (1991)). Drawing on our “judicial experience and common sense,” as the Supreme Court urges us to do, we find that al-Kidd has met his burden of pleading a claim for relief that is plausible, and that his suit on the
[16] 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
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 Youngsberg v. Romeo, 457 U.S. 307, 321-22 (1982) (“Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.“). Prior to 2003, at least two district courts had refused, on constitutional grounds, to house material witness detainees under the same conditions as those facing trial. See United States v. Nai, 949 F. Supp. 42, 46 (D. Mass. 1996) (expressing “concern[ ] that these five material witnesses are being treated as if they were charged with an offense” and ordering them “transferred to a minimum security, residential facility“); In re Cochrane, 434 F. Supp. 1207, 1215 (D. Neb. 1977) (holding that “a witness who has had, at most, the misfortune of seeing a crime committed” must be held in “the least restrictive alternative that is reasonably calculated to assure the witness’ presence for trial“).
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.
[17] The unconstitutional conditions claim in this case 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
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 N1; Fainaru & Williams, supra, at A1; 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.
[18] 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, 373 F.3d at 966 (internal quotation marks omitted), the complaint‘s more conclusory allegations regarding Ashcroft‘s involvement in setting the harsh conditions of confinement (which are very similar to the allegations in Iqbal), are deficient under
C. Personal Jurisdiction
Finally, Ashcroft contends that the district court erred in denying Ashcroft‘s
1. “Necessary to Provide Meaningful Review”
Ashcroft first alleges that the issue of personal jurisdiction is “necessary to provide meaningful review” of the district
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, 408 F.3d at 1134-35; In re Diet Drugs, 282 F.3d 220, 230 n.5 (3d Cir. 2002). In entering a preliminary injunction, however, a district court has already necessarily found “at least a reasonable probability of ultimate success upon the question of jurisdiction.” Visual Scis., Inc. v. Integrated Comm., Inc., 660 F.2d 56, 59 (2d Cir. 1981) (citation and quotation marks omitted). To rule on the preliminary injunction is necessarily to make a judgment as to the question of jurisdiction. More importantly, the equitable remedy of injunction, granted before trial, is itself an imposition on the defendant that goes well beyond merely being haled into court, and often effectively decides the issue in question. See Dupont, 269 F.3d at 205 n.9 (distinguishing a precedent involving a permanent injunction because “[i]t is well-settled that when a court grants an injunction, the underlying personal jurisdiction decision is immediately reviewable on appeal“).
Ashcroft next argues that the issue of personal jurisdiction is “inextricably intertwined” with the immunity issues. To be “inextricably intertwined,” we “require that the two issues: (a) be so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal or (b) resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue.” Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir. 2003) (internal quotation marks and alterations omitted). The first criterion fails: unlike, for example, the temporary injunction, where success on the merits, including on the issue of personal jurisdiction, is an element of the issue being appealed, personal jurisdiction is not a subset of qualified immunity and we need not necessarily address the former to resolve the latter. Cf. id. (“We can decide the anti-SLAPP issue entirely independently of the question of personal jurisdiction, and different legal standards apply to each issue.“).
[19] 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., 374 F.3d 797, 802 (9th Cir. 2004). Purposeful direction, in turn, requires that the defendant have (1) committed an “intentional act,” (2) “expressly aimed” at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state. Id. at 805. The first element, an intentional act, is effectively decided by resolution of the “personal involvement” prong of the qualified immunity inquiry. Insofar as Ashcroft‘s objection to personal jurisdiction rests on the absence of an intentional act, we affirm the decision of the district court to exercise personal jurisdiction.
[20] Insofar as Ashcroft‘s objection to personal jurisdiction rests on the fact that his acts were not “expressly aimed” at
CONCLUSION
Almost two and a half centuries ago, William Blackstone, considered by many to be the pre-eminent 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 application of such arbitrary power to them.
We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the
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.
BEA, Circuit Judge, 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!”
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 testify against the indicted terror suspect, but to investigate al-Kidd himself.
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. 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).1 One month later, al-Kidd purchased a plane ticket to Saudi Arabia. Apprehensive, they said, that al-Kidd would abscond to Saudi Arabia with information critical to the prosecution of al Hussayen, never to return, the federal agents sought a warrant for his arrest. The agents appeared before a magistrate, swore they had good cause to believe al-Kidd both had information material to Al-Hussayen‘s prosecution and was on the run, and then arrested al-Kidd at Dulles International Airport as he was about to board a plane to
Al-Kidd filed this action under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), in the United States District Court for the District of Idaho. Al-Kidd named as defendants not only the officers who prepared the material witness warrant, but former Attorney General Ashcroft, FBI Director Robert Mueller, and former Secretary of the Department of Homeland Security Michael Chertoff, as well as the wardens of the prisons in which he was detained. In his complaint, al-Kidd raises three very distinct claims. First, al-Kidd alleges that the conditions under which he was confined were unconstitutionally harsh. Second, al-Kidd alleges his detention on a material witness warrant was illegal because it was based on pure pretext; the government wanted to detain al-Kidd not to secure his testimony at the Al-Hussayen trial but really to keep al-Kidd himself off the streets and to investigate him. Al-Kidd contends that even if the warrant on which he was detained was objectively valid, the preparing officers’ subjective intention to use the warrant to accomplish an illicit goal rendered the officers’ actions unconstitutional. Third, al-Kidd contends the warrant was not only illegal because it was pretextual, it was also invalid because it was based on an affidavit containing material misrepresentations and omissions: Al-Kidd had no information useful to the investigation, he was not a flight risk, and the government knew it but concealed those facts from the magistrate.
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.
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
As to al-Kidd‘s claim that his detention violated the
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 secure the presence of a witness at a criminal trial, regardless of any claimed improper motive.2
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.3
Al-Kidd bases his claims of liberty from arrest on the
Whren v. United States, 517 U.S. 806 (1996), cited by the majority, is but one example of the general rule that pretextual searches and seizures do not violate the
We [have] flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal
justification. . . . [S]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional. We described Robinson [414 U.S. at 236] as having established that “the fact that the officer does not have the state of mind which is hypothesized 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 (internal citations omitted). It is really quite simple. If you are engaged in conduct that justifies your detention, you must put up with that detention, even if the officer who detained you did so out of some secret—and constitutionally insufficient—motive.
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, 543 U.S. 146, 154 (2004). If the subjective intentions of the arresting officers are the touchstone of constitutional analysis, courts may reach divergent results about searches and seizures that are utterly indistinguishable in the eyes of the person whose rights are at stake. See id. at 154.6 Second, the inquiry into subjective intentions is impossibly difficult, expensive, and prone to error. As the Supreme Court explained in Harlow v. Fitzgerald,
457 U.S. 800, 816-817 (1982) (footnotes and internal quotation marks omitted). Whren, along with Harlow, Robinson, Scott, and Macon, makes clear that al-Kidd‘s arrest on an objectively valid warrant supported by probable cause violated none of al-Kidd‘s constitutional rights. At a minimum, these cases would have given a reasonable officer good reason to believe that al-Kidd‘s arrest was constitutionally permissible.
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 12296-97. 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, 532 U.S. 67, 78 (2001); City of Indianapolis v. Edmond, 531 U.S. 32, 45 (2000). The special needs cases are the sole exception to the general principle that, in testing compliance with the
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 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.
482 U.S. 691, 710-11 (1987) (emphasis added) (quotations omitted). Material witness warrants, though not based on individualized suspicion of wrongdoing are, of course, warrants: they are based on an individualized determination that the subject of the warrant is in possession of information material in a criminal proceeding and is likely to flee; they are approved by a neutral magistrate; they are subject to continuing oversight; and they issue only upon a showing of probable cause. Bacon v. United States, 449 F.2d 933, 942 (9th Cir. 1971);
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 12297-98, reflects a fundamental misunderstanding of the
Until today, no case has suggested that the only governmental interest of sufficient weight to justify an arrest is a rea-
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
In short, our cases, and those of the Supreme Court, have routinely recognized that “probable cause,” within the meaning of the
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, 449 F.2d at 941-43. If “probable cause” exists only when the subject of an arrest is suspected of a crime, then a material witness can be arrested as a suspect, and the material witness statute adds nothing.10 This result is risible.11
Third, the Supreme Court‘s decision in United States v. Villamonte-Marquez, 462 U.S. 579 (1983), which the majority inadequately addresses, casts even greater doubt on the correctness of the majority‘s decision. In that case, the Supreme Court authorized precisely what the majority says can never be permissible: a pretextual seizure in the absence of reasonable suspicion or probable cause. In that case, customs agents, acting on a tip about marijuana smuggling, detained a sailboat pursuant to
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.
Like the statute at issue in Villamonte-Marquez, some version of the material witness statute has been on the books since the late-1700s. See Bacon, 449 F.2d at 938-41. Since then, courts have approved the constitutionality of the power
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, 531 U.S. at 457 (“[W]e caution that the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene.“). The justification for the use of material witness warrants is the need to assure the proper functioning of the judicial system; this interest is divorced from the government‘s general interest in crime control and is sufficient, al-Kidd concedes, to justify an arrest. Because this governmental interest justifies this intrusion into al-Kidd‘s liberty, and because the intrusion is subject to a warrant requirement, inquiry into the minds of individual officers is neither necessary nor desirable. See Villamonte-Marquez, 462 U.S. at 584 n.3.
But even if al-Kidd‘s arrest on a pretextual material witness warrant violated his
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
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, 349 F.3d 42, 59 (2d Cir. 2003) (“The district court noted (and we agree) that it would be improper for the government to use
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
III. Al-Kidd‘s complaint fails to allege Ashcroft instructed or knowingly allowed FBI agents to present false affidavits to the magistrate judge who issued the material witness warrant.
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, 438 U.S. 154, 164-72 (1978). But it was Ashcroft‘s subordinates, not Ashcroft himself, who obtained the material witness warrant on which al-Kidd was detained. Al-Kidd makes only conclusory allegations Ashcroft ordered his subordinates to arrest individuals on invalid warrants. But such conclusory allegations do not suffice. Before we reach the merits of al-Kidd‘s claims the affidavits were false, we must determine if he alleges facts sufficient to establish Ashcroft‘s personal liability. I disagree with the majority‘s conclusion that Ashcroft may be held liable for what his subordinates may have done here, because al-Kidd‘s
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
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
- Ashcroft stated publicly that “[a]ggressive 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
- 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. That the DOJ apologized to some detainees hardly suggests an admission of impropriety rather than simple error.
The majority also concludes al-Kidd has plausibly alleged that Ashcroft “purposely instructed his subordinates to bypass
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 inactions—related to the issuance of material witness warrants. As explained above, I conclude all of al-Kidd‘s claims are precluded 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.
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,
Deciding which witnesses to call at trial is part of the prosecutor‘s role as an advocate, Imbler, 424 U.S. at 431 n.33, as is the “marshaling” of evidence for trial, Genzler v. Longanbach, 410 F.3d 630, 639 (9th Cir. 2005). Accordingly, several circuits, other than the Ninth, have squarely held that prosecutors have absolute immunity for seeking a material witness warrant.15 And no case has held that absolute immunity does not shield a prosecutor‘s decision to seek such a warrant.
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
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 522 U.S. at 129-30. When an individual, even an attorney, serves as a complaining witness in support of a warrant application, the individual enjoys only qualified immunity, id., and accordingly Ashcroft lacks absolute immunity for supervising such individuals. See Roe, 109 F.3d at 583-84. Whether Ashcroft enjoys absolute immunity for his supervision of the United States Attorneys who prepared the warrant application and made the decision to file it is a different question.
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,16 the decision to seek a material witness warrant should be shielded by absolute immunity. Such a decision is clearly one “intimately
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, 472 U.S. at 522-23 (holding that a prosecutor did not enjoy absolute immunity for his decision to engage in illegal wiretapping and explaining that the judicial process, unlike wiretapping, is “largely self-correcting: procedural rules, appeals, and the possibility of collateral challenges obviate the need for damages actions to prevent unjust results“).17 Here, Al-Kidd was not detained up until the start
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, 424 U.S. at 431 n.33; Kalina, 522 U.S. at 129.
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 12284-85. The majority, returning to its trope the prosecutors’ pretextual motivations invalidate an otherwise properly obtained warrant, see Maj. Op. at 12290, 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 12284-85.18
It is true that a few courts have made reference to “purpose” in applying the functional approach.19 But the “purpose” considered in these cases has been the product for which the warrant was directed—what evidence was called for and where it was to be produced; none of these cases authorizes the majority‘s wide-ranging inquiry into what a prosecutor was “really” up to. See id. at 22-24. Indeed, as in the Fourth Amendment context, courts have repeatedly admonished that a prosecutor‘s subjective intentions are irrelevant to the absolute immunity inquiry, for much the same reason they are irrelevant to the qualified immunity analysis. See, e.g., Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc) (“Intent should play no role in the immunity analysis.“); see also Betts, 726 F.2d at 81 (“Absolute immunity attaches to [seeking a material witness warrant], and any claimed improper motive is irrelevant.“). The cases the majority cites are not to the contrary.
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. 384 F.3d at 1115. After executing a search warrant on land held by KRL, a general partnership, prosecutors indicted Robert Womack, one of the partners, on counts relating to improper waste disposal on partnership land. Id. at 1108. The prosecutor then obtained a second search warrant for documents related to fraud and illegal diversion of funds. Id. at 1109, 1113. The partnership and the partners sued under
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 KRL 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 than a criminal trial, Ashcroft would not enjoy absolute prosecutorial immunity. The only relevant “purpose” is that derived from the product of the warrant, not what was “really” the prosecutor‘s motive in seeking the warrant.
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
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
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 12290. 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.
Even were the “immediate purpose” test coherent, it would nonetheless be undesirable because of the incentives it creates. The prosecutors’ ultimate decision not to call al-Kidd to the stand features prominently in al-Kidd‘s proof that their “immediate purpose” was not to obtain a conviction against Al-Hussayen. Subjecting prosecutors to liability for such a decision risks needless interference in the prosecutor‘s conduct of his most public function: the presentation of evidence at trial and, indeed, deciding whether to have a trial at all. Worse, the majority‘s test makes it prudent for a prosecutor to go to trial against a defendant simply to ensure that his actions in preparing for trial will not become subject to attack on the grounds they were “really” designed to accomplish some other goal.
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.21 But we are not, and for the reasons explained above, I dissent in part and concur in part.
Notes
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“; “[s]pread the correct knowledge of Islam“; “[w]iden the horizons and understanding . . . among Muslims concerning different Islamic contemporary issues“; “[a]ssist the oppressed and tyrannized scholars, Islamic workers and Muslim masses in any locality“; and “[c]reate programs and institutions that will serve the English-speaking Muslims of North America.” Islamic Assembly of N. Am., About IANA, at http://www.iananet.org/about.htm (accessed June 10, 2009). Al-Hussayen, then a computer science graduate student at the University of Idaho, was accused of registering and running the IANA’s web site. Al-Kidd later makes this claim separate and distinct from his pretext claim. It is addressed infra, parts III and IV.
If it appears from an affidavit filed by a party that the testimony In Scott, officers obtained a warrant to intercept the phone calls of a suspected drug dealer. Id. at 131. The warrant required the officers to minimize their interception of non-narcotics-related phone calls. Id. The wiretap resulted in the arrest and indictment of more than twenty individuals. Id. Scott moved to suppress the intercepted phone calls on the ground officers had failed to comply with the minimization requirement. Id. at 132. The district court granted the motion to suppress, concluding that even if every intercepted phone call had been narcotics-related, the officers’ failure to make any good faith efforts to comply with the minimization requirement rendered the wiretap illegal. Id. at 132-34. The court of appeals reversed because the court could not conclude that reasonable efforts at minimization would have prevented the interception of any of the phone calls. Id. at 134. After a jury trial on remand, Scott was convicted. The court of appeals affirmed, id. at 135, and the Supreme Court affirmed the court of appeals. Id. at 137-38. The Supreme Court rejected Scott‘s contention that the officers’ “failure to make good-faith efforts to comply with the minimization requirement is itself a violation of [the wiretap statute].” Id. at 135. The Court explained that the “existence vel non of such a violation turns on an objective assessment of the officer‘s actions in light of the facts and circumstances confronting him at the time,” not on the officers‘s subjective intentions. Id. at 136.
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 (Kennedy, J., concurring in part, dissenting in part). 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 12303. (emphasis in original). This