Al-Kidd v. Ashcroft

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABDULLAH AL-KIDD,  No. 06-36059

Plaintiff-Appellee,

v.  D.C. No.

CV-05-00093-EJL

JOHN ASHCROFT,

OPINION

Defendant-Appellant.



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

Filed September 4, 2009

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

12265

12270 AL-KIDD v. ASHCROFT

COUNSEL

Robert M. Loeb and Matthew M. Collette, Department of Jus-

tice, Civil Division, Washington, D.C., for the defendant-

appellant.

Lee Gelernt, Immigrants’ Rights Project, American Civil Lib-

erties Union, New York, New York, for the plaintiff-appellee.

Alison M. Tucher, Morrison & Foerster, San Francisco, Cali-

fornia, for amici curiae Former Federal Prosecutors.

Leo P. Cunningham and Lee-Anne Mulholland, Wilson Son-

sini 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 com-

plaint, 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 v. ASHCROFT 12271

visits throughout the period of supervision. By the time al-

Kidd’s confinement and supervision ended, fifteen months

after his arrest, al-Kidd had been fired from his job as an

employee of a government contractor because he was denied

a security clearance due to his arrest, and had separated from

his wife. He has been unable to obtain steady employment

since his arrest.

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 poli-

cies promulgated by Ashcroft, and others within the United

States Department of Justice (DOJ), unlawfully used the fed-

eral material witness statute, 18 U.S.C. § 3144, to investigate

or preemptively detain him. Ashcroft asserts that he is entitled

to absolute and qualified immunity against al-Kidd’s claims.

We hold that on the facts pled Ashcroft is not protected by

either form of immunity, and we affirm in part and reverse in

part the decision of the district court.

FACTS AND PROCEDURAL 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 investiga-

tion allegedly aimed at Arab and Muslim men.2 No evidence

of criminal activity by al-Kidd was ever discovered. Al-Kidd

1

All facts are taken from al-Kidd’s first amended complaint, unless oth-

erwise indicated.

2

Al-Kidd is Muslim, but is African-American and not of Arab descent.

12272 AL-KIDD v. ASHCROFT

planned to fly to Saudi Arabia in the spring of 2003 to study

Arabic and Islamic law on a scholarship at a Saudi university.

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 magis-

trate 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 pay-

ment was for), and al-Kidd had “met with Al-Hussayen’s

associates” after returning from a trip to Yemen. It also con-

tained 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 offi-

cial “who was recently arrested in New York.” It ended with

the statement, “[d]ue to Al-Kidd’s demonstrated involvement

3

The IANA is identified in the Al-Hussayen indictment as an organiza-

tion with the “purpose of Da’wa (proselytizing), which included the web-

site dissemination of radical Islamic ideology the purpose of which was

indoctrination, recruitment of members, and the instigation of acts of vio-

lence and terrorism.”

The IANA’s web site currently disseminates a list of goals which

include, inter alia, to “[u]nify and coordinate the efforts of the different

dawah oriented organizations in North America and guide or direct the

Muslims of this land to adhere to the proper Islamic methodology”;

“[s]pread the correct knowledge of Islam”; “[w]iden the horizons and

understanding . . . among Muslims concerning different Islamic contempo-

rary issues”; “[a]ssist the oppressed and tyrannized scholars, Islamic work-

ers and Muslim masses in any locality”; and “[c]reate programs and

institutions that will serve the English-speaking Muslims of North Ameri-

ca.” Islamic Assembly of N. Am., About IANA, at http://www.iananet.org/

about.htm (accessed June 10, 2009). Al-Hussayen, then a computer sci-

ence graduate student at the University of Idaho, was accused of register-

ing and running the IANA’s web site.

AL-KIDD v. ASHCROFT 12273

with the defendant . . . he is believed to be in possession of

information germane to this matter which will be crucial to

the prosecution.” The Mace Affidavit did not elaborate on

what “information” al-Kidd might have had, nor how his testi-

mony might be “germane”—let alone “crucial”—to the prose-

cution of Al-Hussayen.

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 Interna-

tional 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 citi-

zens; 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 Interna-

tional 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 Alexan-

dria 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 facili-

ties, al-Kidd was handcuffed and shackled about his wrists,

legs, and waist. He was allowed out of his cell only one to

12274 AL-KIDD v. ASHCROFT

two hours each day, and his cell was kept lit twenty-four

hours a day, unlike other cells in the high-security wing.

On March 31, after petitioning the court, al-Kidd was

ordered released, on the conditions that he live with his wife

at his in-laws’ home in Nevada, limit his travel to Nevada and

three other states, report regularly to a probation officer and

consent to home visits throughout the period of supervision,

and surrender his passport. After almost a year under these

conditions, the court permitted al-Kidd to secure his own resi-

dence 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 ter-

minated 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 terror-

ist attacks, Ashcroft developed and promulgated a policy by

which the FBI and DOJ would use the federal material wit-

ness statute5 as a pretext “to arrest and detain terrorism sus-

4

Al-Hussayen was not convicted of any of the charges brought against

him. His trial ended in acquittal on the most serious charges, including

conspiracy to provide material support to terrorists, 18 U.S.C. §§ 2339A,

2339B. After the jury failed to reach a verdict on the remaining lesser

charges, the district court declared a mistrial. The government agreed not

to retry Al-Hussayen and deported him to Saudi Arabia for visa violations.

5

The federal material witness statute, 18 U.S.C. § 3144, provides:

If it appears from an affidavit filed by a party that the testimony

AL-KIDD v. ASHCROFT 12275

pects about whom they did not have sufficient evidence to

arrest on criminal charges but wished to hold preventatively

or to investigate further.” (Cited in, and emphasis added, in

al-Kidd’s complaint.)

To support this allegation, the complaint first quotes Ash-

croft’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 mea-

sures form one part of the department’s strategy to

prevent terrorist attacks by taking suspected terror-

ists off the street . . . Aggressive detention of law-

breakers 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 Gen-

eral (OIG Report),6 which describe the use of “aggressive

of a person is material in a criminal proceeding, and if it is shown

that it may become impracticable to secure the presence of the

person by subpoena, a judicial officer may order the arrest of the

person and treat the person in accordance with the provisions of

section 3142 of this title. No material witness may be detained

because of inability to comply with any condition of release if the

testimony of such witness can adequately be secured by deposi-

tion, and if further detention is not necessary to prevent a failure

of justice. Release of a material witness may be delayed for a rea-

sonable period of time until the deposition of the witness can be

taken pursuant to the Federal Rules of Criminal Procedure.

6

See Office of the Inspector Gen., U.S. Dep’t of Justice, The September

11 Detainees: A Review of the Treatment of Aliens Held on Immigration

12276 AL-KIDD v. ASHCROFT

arrest and detention tactics in the war on terror,” OIG Report

at 12, including the use of material witness warrants to con-

fine aliens suspected of terrorist involvement, id. at 38-39, 75.

The complaint also quotes the public statements of a number

of DOJ and White House officials implying or stating outright

that suspects were being held under material witness warrants

as an alternative means of investigative arrest or preventative

detention. In addition to this direct evidence, the complaint

cites a number of press reports describing the detention of

numerous Muslim individuals under material witness war-

rants. The complaint further alleges that the policies designed

and promulgated by Ashcroft have caused individuals to be

“impermissibly arrested and detained as material witnesses

even though there was no reason to believe it would have

been impracticable to secure their testimony voluntarily or by

subpoena,” in violation of the terms of § 3144.

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-

Charges in Connection with the Investigation of the September 11 Attacks

(2003), available at http://www.usdoj.gov/oig/special/0306/full.pdf. The

OIG Report’s focus is the post-9/11 detention on immigration charges of

Arab and Muslim aliens, and touches only incidentally on those held as

material witnesses. Because the report, an official government document,

is cited extensively throughout the complaint, we deem it incorporated by

reference, and take judicial notice of its entire contents. See In re Silicon

Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999) (permitting

incorporation by reference of documents “whose contents are alleged in a

complaint and whose authenticity no party questions, but which are not

physically attached to the [plaintiff’s] pleading”).

AL-KIDD v. ASHCROFT 12277

tified as having been “arrested . . . en route to Saudi Arabia.”

The other three “successes” all involved individuals “indict-

ed” or “charged” with some crime connected to terrorism. See

FBI’s Fiscal Year (FY) 2004 Budget: Hearing Before the Sub-

commitee on the Departments of Commerce, Justice and

State, House Appropriations Commitee, 108th Cong. (2003)

(statement of Robert S. Mueller, III, Director, FBI), available

at http://www.fbi.gov/congress/congress03/mueller032703

.htm (hereafter Mueller Testimony).

Finally, the complaint notes that “material witnesses have

been routinely held in high security detention facilities.” The

OIG Report cites an Assistant U.S. Attorney who complained

that the DOJ’s Bureau of Prisons “did not distinguish between

detainees who, in his view, posed a security risk and those

detained aliens who were uninvolved witnesses.” OIG Report

at 20. It alleges “a general policy” of extensive mistreatment

of material witnesses at the New York City Metropolitan Cor-

rectional Center (MCC). It cites a case, United States v. Awa-

dallah, 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 con-

finement of another putative material witness, Osama Awa-

dallah, 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 man-

ner “would also foreseeably subject” detainees “to unreason-

able 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

12278 AL-KIDD v. ASHCROFT

agencies and officers in their official capacities.7 It sought

damages under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971), for viola-

tions of al-Kidd’s rights under the Fourth and Fifth Amend-

ments to the Constitution (a “Bivens action”), and for a direct

violation of § 3144.

Ashcroft moved to dismiss under Federal Rule of Civil Pro-

cedure 12(b)(2) and 12(b)(6). The district court first denied

the 12(b)(2) motion, holding that al-Kidd had properly alleged

facts sufficient to establish personal jurisdiction over Ashcroft

in Idaho. Specifically, al-Kidd had alleged that Ashcroft

“spear-headed the post September 11, 2001 practice . . . to use

the material witness statute to detain individuals whom they

sought to investigate,” and that “Ashcroft either knew or

should have known the violations were occurring and did not

act to correct the violations.” Next, the district judge denied

the 12(b)(6) motion, rejecting Ashcroft’s claims of absolute

and qualified immunity. The district court held that “[t]he

development and practice of using the material witness statute

to detain individuals while investigating possible criminal

activity qualifies as police type investigative activity, not pro-

secutorial advocacy” for which absolute immunity is reserved.

Turning to the claims for qualified immunity, the district court

held that “the allegations against Mr. Ashcroft involve more

than vicarious liability but assert claims involving Mr. Ash-

croft’s own knowledge and actions related to Mr. Kidd’s

alleged constitutional deprivations.” The principal deprivation

the district court mentioned was the allegation “that probable

cause was not shown in the warrant application.” The district

court also rejected qualified immunity for the FBI agents.

Ashcroft filed a timely interlocutory appeal.

7

Ashcroft is the only defendant in this case who filed an interlocutory

appeal of the district court’s denial of the defendants’ Federal Rule of

Civil Procedure 12(b)(2) and 12 (b)(6) motions. Accordingly, none of al-

Kidd’s claims against the other defendants is before us.

AL-KIDD v. ASHCROFT 12279

JURISDICTION AND STANDARD OF REVIEW

A. Failure to State a Claim

Section 1291 of U.S. Code Title 28 grants this court juris-

diction over “final decisions” of the district court. Ordinarily,

the denial of a motion under Federal Rule of Civil Procedure

12(b)(6) would not constitute a “final decision.” The district

court’s denial of absolute and qualified immunity, however,

is a “final decision” for § 1291 purposes because these immu-

nities are immunities from suit, not just from damages. See

Mitchell v. Forsyth, 472 U.S. 511, 525, 527 (1985).

As we have recognized in the past, interlocutory review of

a Rule 12(b)(6) motion to dismiss puts our court in the diffi-

cult position of deciding “far-reaching constitutional ques-

tions 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

12280 AL-KIDD v. ASHCROFT

dismiss for lack of personal jurisdiction are not ordinarily

reviewable on interlocutory appeal, Ashcroft requests that this

court exercise its “pendent appellate jurisdiction” to reach the

question of personal jurisdiction.

In Hendricks v. Bank of America, N.A., we summarized the

criteria for the exercise of pendent appellate jurisdiction:

Under 28 U.S.C. § 1292(a)(1), we may exercise . . .

pendent jurisdiction over any otherwise 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 interlocu-

tory appeal necessarily resolves the pendent issue.

We also construe Swint’s “necessary to ensure mean-

ingful 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. Cham-

bers County Comm’n, 514 U.S. 35, 51 (1995)) (internal quo-

tation marks, citations, and alterations omitted). Thus,

Ashcroft must demonstrate that the issue of personal jurisdic-

tion is either (1) “inextricably intertwined” with or (2) “neces-

sary 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

AL-KIDD v. ASHCROFT 12281

practice under which the FBI and the DOJ sought material

witness orders without sufficient evidence that the witness’s

testimony was material to another proceeding, or that it was

impracticable to secure the witness’s testimony—in other

words, in violation of the express terms of § 3144 itself—and

that al-Kidd was arrested as a result of this policy (the § 3144

Claim). Second, al-Kidd alleges that Ashcroft designed and

implemented a policy under which the FBI and DOJ would

arrest individuals who may have met the facial statutory

requirements of § 3144, but with the ulterior and allegedly

unconstitutional purpose of investigating or preemptively

detaining them, in violation of the Fourth Amendment (the

Fourth Amendment Claim). Finally, al-Kidd alleges that Ash-

croft designed and implemented policies, or was aware of pol-

icies and practices that he failed to correct, under which

material witnesses were subjected to unreasonably punitive

conditions of confinement, in violation of the Fifth Amend-

ment (the Conditions of Confinement Claim).

Ashcroft argues that he is entitled to absolute prosecutorial

immunity as to the § 3144 and Fourth Amendment Claims.

He concedes that no absolute immunity attaches with respect

to the Conditions of Confinement Claim. He also argues that

he is entitled to qualified immunity from liability for all three

claims.

A. Absolute Immunity

[1] In Bivens actions and those taken under 42 U.S.C. § 1983,8

“[m]ost public officials are entitled only to qualified immuni-

ty.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). Prose-

cutors are entitled to absolute immunity, however, when they

8

The qualified and absolute immunity defenses to each are the same.

See Butz v. Economou, 438 U.S. 478, 504 (1978) (“[W]e deem it untena-

ble to draw a distinction for purposes of immunity law between suits

brought against state officials under § 1983 and suits brought directly

under the Constitution against federal officials.”).

12282 AL-KIDD v. ASHCROFT

engage in activities “intimately associated with the judicial

phase of the criminal process,” Imbler v. Pachtman, 424 U.S.

409, 430 (1976), and done “in the course of [their] role as an

advocate for the State,” Buckley, 509 U.S. at 273. They are

entitled only to qualified immunity, however, when they per-

form investigatory or administrative functions, or are essen-

tially functioning as police officers or detectives. Id. In

addition, the United States Attorney General is not entitled to

absolute immunity in the performance of his or her “national

security functions.” Mitchell, 472 U.S. at 520. The burden to

establish absolute immunity rests with the official seeking it:

The presumption is that qualified rather than abso-

lute immunity is sufficient to protect government

officials in the exercise of their duties. We have been

“quite sparing” in our recognition of absolute immu-

nity, and have refused to extend it any “further than

its justification would warrant.”

Burns v. Reed, 500 U.S. 478, 486-87 (1991) (quoting For-

rester v. White, 484 U.S. 219, 224 (1988); Harlow v. Fitzger-

ald, 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 asso-

ciated with the judicial phase of the criminal process.’ ” Van

de Kamp v. Goldstein, ___ U.S. ___, 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

AL-KIDD v. ASHCROFT 12283

actions preliminary to the initiation of a prosecution and

actions apart from the courtroom,” Imbler, 424 U.S. at 431

n.33, absolute prosecutorial immunity will be given “only for

actions that are connected with the prosecutor’s role in judi-

cial proceedings, not for every litigation-inducing conduct,”

Burns, 500 U.S. at 494.

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 pro-

ceeded 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 infor-

mation 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 phys-

ical 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 com-

plaining 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

9

One bright line the Supreme Court has given is that a “prosecutor nei-

ther is, nor should he consider himself to be, an advocate before he has

probable cause to have anyone arrested.” Buckley, 509 U.S. at 274. The

converse, however, is not true: the mere presence of probable cause to

have someone arrested “does not guarantee a prosecutor absolute immu-

nity from liability for all actions taken afterwards.” Id. at 274 n.5.

12284 AL-KIDD v. ASHCROFT

question.” Mitchell, 472 U.S. at 521. The existence of a

common-law immunity, however, is a necessary, but not suf-

ficient, condition for the recognition of absolute immunity:

“Even when we can identify a common-law tradition of abso-

lute immunity for a given function, we have considered

‘whether §1983’s history or purposes nonetheless counsel

against recognizing the same immunity in § 1983 actions.’ ”

Buckley, 509 U.S. at 269 (quoting Tower v. Glover, 467 U.S.

914, 920 (1984)).

Ashcroft contends that the decision to seek a material wit-

ness warrant is always a prosecutorial function. He has pre-

sented us with no historical evidence that a common-law tra-

dition of absolute immunity from suit for prosecutors in seek-

ing material witness arrests exists, and our own research has

uncovered none, even though the practice of detaining wit-

nesses 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 cir-

cuits, however, have held that the decision to seek a material

witness warrant to secure a witness’s testimony at trial is suf-

ficiently 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. Ger-

bitz, 860 F.2d 661, 665 n.4 (6th Cir. 1988) (suggesting in

dicta that the decision to seek a material witness order is pro-

secutorial). But see Odd v. Malone, 538 F.3d 202, 217 (3d

Cir. 2008) (holding “that the policies underlying the recogni-

tion 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 crimi-

nal 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 v. ASHCROFT 12285

“[b]ecause defendant was attempting to secure Daniels’ pres-

ence at the resumption of the trial, we must consider that he

was functioning as an advocate rather than as an investigator

or administrator,” and was therefore entitled to absolute

immunity. 586 F.2d at 69; see also Betts, 726 F.2d at 81 (cit-

ing Daniels).

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 func-

tion, 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 partic-

ular. 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 out-

lined. However, the cases he cites in support of this proposi-

tion 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 (9th

Cir. 2004) (alleging “racially invidious or partisan prosecu-

tions”); 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 con-

ditioned 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-

12286 AL-KIDD v. ASHCROFT

tions and his prosecutorial functions, which is the question

here.

[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 pur-

pose 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, how-

ever, prosecutors obtained two additional warrants to search

for evidence with little relevance to the charges in the indict-

ment. Id. at 1109. We held that the prosecutors were engaged,

at least in part, in investigative functions when they requested

10

Justice Kennedy would have gone even further, extending the inquiry

beyond “immediate” purpose:

Two actors can take part in similar conduct and similar inquiries

while doing so for different reasons and to advance different

functions. It may be that a prosecutor and a police officer are

examining the same evidence at the same time, but the prosecutor

is examining the evidence to determine whether it will be persua-

sive 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).

AL-KIDD v. ASHCROFT 12287

the second and third warrants, even though they already had

probable cause as to those suspects for other crimes. We cited

the prosecutors’ investigatory purpose, which they had admit-

ted both in depositions and on a talk radio program. Id. at

1114-15. “Thus, we conclude[d] that, because the warrant . . .

was to further a ‘stand-alone investigation’ into environmen-

tal crimes, [defendants were] not entitled to absolute immu-

nity from Plaintiffs’ claim of judicial deception.” Id. at 1115.

By contrast, “the second search warrant had two goals: it

sought evidence to prosecute the pending indictment against

Womack, and it sought to investigate and uncover new

crimes.” Id. at 1111. We held that “to the extent the second

search warrant sought evidence to prosecute the crimes

charged in the indictment, [defendants’] review of the warrant

prior to submission was intimately associated with the judicial

process,” and therefore entitled them to absolute immunity.

Id. at 1112. Our focus on ends, rather than the labels attached

to means, was explicit and effectively determinative.11

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 cir-

cumstances of the interviews. In that case, the timing of the

interviews, id. at 639, 642, as well as the “nature of the infor-

mation obtained,” id. at 640, led us to hold that “evidence in

the record supports the conclusion that [the defendants] were

11

In KRL we limited our holding to search warrants, rather than arrest

warrants. Id. at 1114. This distinction was based on the Supreme Court’s

rule that “a prosecutor does not serve as an advocate before probable cause

to arrest anyone has been established.” Id. (citing Buckley, 509 U.S. at

274). The Supreme Court has been clear that probable cause to arrest is

necessary, but not sufficient, to the prosecutorial function, and “does not

guarantee a prosecutor absolute immunity from liability for all actions

taken afterwards.” Buckley, 509 U.S. at 274 n.5. At any rate, this distinc-

tion in dicta does nothing to detract from the teleological inquiry that was

central to our holding.

12288 AL-KIDD v. ASHCROFT

engaged in police-type investigative work during” the witness

interviews, id. at 642.12

Indeed, Daniels and Betts, while granting absolute immu-

nity 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 con-

nection 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 attempt-

ing to prove all elements charged in the indictment.” Id. at 68.

Other circuits have likewise used the language of purpose in

determining function.13

12

The dissent argues that an individual’s detention on a material witness

warrant “is subject to continuing oversight, and errors may be corrected

though the judicial process[,]” and thus obviates “ ‘the need for damages

actions to prevent unjust results.’ ” Dissent at 12352 (citations omitted).

The Third Circuit has recently held the opposite, finding that the plaintiffs,

who had been detained on material witness statutes, had demonstrated the

need for damages actions because “by virtue of their status as third-party

witnesses, Plaintiffs are not entitled to the protections available to criminal

defendants, including the appellate process.” Odd, 538 F.3d at 217.

13

See, e.g., Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 30-31 (1st Cir.

1995); Parkinson v. Cozzolino, 238 F.3d 145, 151 (2d Cir. 2001) (“There

can be little doubt that conduct taken with the goal of affirming a convic-

tion on appeal or obtaining a new conviction on re-trial falls within the tra-

ditional adversarial function of a prosecutor.” (internal quotation marks

omitted)); Hill v. City of New York, 45 F.3d 653, 662 (2d Cir. 1995) (“To

the extent that the creation of the videotapes fulfilled an investigatory pur-

pose, Adago cannot claim absolute immunity.”); Cousin v. Small, 325

F.3d 627, 635 (5th Cir. 2003) (“The interview was intended to secure evi-

dence that would be used in the presentation of the state’s case at the

pending trial of an already identified suspect, not to identify a suspect or

establish probable cause.”); Lomaz v. Hennosy, 151 F.3d 493, 499 (6th

Cir. 1998) (“The purpose for which they sought the warrant, therefore,

was not primarily investigative, but was to obtain and preserve the evi-

dence. We think that under these circumstances, the prosecutors were

clearly ‘preparing for the initiation of judicial proceedings.’ ” (quoting

Buckley, 509 U.S. at 273)); Lerwill v. Joslin, 712 F.2d 435, 438 (10th Cir.

1983); Rivera v. Leal, 359 F.3d 1350, 1354 (11th Cir. 2004) (finding abso-

lute immunity because, inter alia, “there is no indication that Leal was try-

ing to establish probable cause to arrest Appellant. In fact, the purpose of

the hearing was to establish whether [another individual] was innocent.”).

AL-KIDD v. ASHCROFT 12289

[4] They were justified in doing so. Even were we not con-

strained by our precedents in KRL and Genzler, the Supreme

Court, in adopting a “functional” test, has necessarily required

us to look beyond the labels a prosecutor attaches to his or her

actions and examine their underlying ends. The very word

function reflects, at least in part, a teleological perspective.

See, e.g., Oxford English Dictionary, Function (2d ed. 1989)

(defining “function” as “[t]he special kind of activity proper

to anything; the mode of action by which it fulfils its pur-

pose”). In Buckley, the Supreme Court found it proper to

inquire into the prosecutor’s mission and purpose, the very

inquiry that Ashcroft and the dissent in this case find distaste-

ful. 509 U.S. at 274-75.

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 col-

league agrees, and would hold that so long as a material wit-

ness 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 prosecu-

tors 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 investiga-

tory. 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-

12290 AL-KIDD v. ASHCROFT

gative tool in the war on terrorism . . . . Bear in mind that you

get not only testimony—you get fingerprints, you get hair

samples—so there’s all kinds of evidence you can get from a

witness.” Steve Fainaru & Margot Williams, Material Witness

Law Has Many in Limbo: Nearly Half Held in War On Terror

Haven’t Testified, Wash. Post, Nov. 24, 2002, at A1 (quoting

Chertoff) (emphasis added).

Ashcroft argues that an inquiry into purpose cannot be cab-

ined: 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 defen-

dant 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 impli-

cate 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 preemp-

tively 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-

14

The dissent believes that such an inquiry is undesirable because of the

incentives it creates. Dissent at 12358. Judge Bea states that our inquiry

may make a prosecutor go to trial against a defendant simply to ensure his

actions will not be subject to attack in a future lawsuit. We disagree. First,

prosecutors often make choices regarding prosecutorial strategy that may

be in tension with personal liability, see Kalina, 522 U.S. at 130-31, since

all actions taken by a prosecutor are not entitled to absolute immunity.

Second, we note that creating an incentive for a prosecutor to utilize a

material witness he/she has detained for the very purpose alleged in his/

her affidavit is not an undesirable incentive, and certainly not dispositive

to the immediate purpose inquiry.

AL-KIDD v. ASHCROFT 12291

ing here does not rest upon an unadorned assertion of secret,

unprovable motive, as the dissent seems to imply. Even

before the Supreme Court’s decision in Bell Atlantic v. Twom-

bly and Ashcroft v. Iqbal, it was likely that conclusory allega-

tions of motive, without more, would not have been enough

to survive a motion to dismiss. See, e.g., Sprewell v. Golden

State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (facts pled

must be accepted as true, but conclusory allegations need not

be). Twombly’s general requirement that “[f]actual allegations

must be enough to raise a right to relief above the speculative

level,” 550 U.S. 555, applies with equal force to allegations

that a prosecutor’s actions served an investigatory function. In

this case, however, al-Kidd has averred ample facts to render

plausible the allegation of an investigatory function:

• 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 evi-

dence gathering is a relevant fact in determining

how closely connected that conduct is to the offi-

cial’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 inter-

viewed al-Kidd, but had never suggested, let

alone demanded, that he appear as a witness. Cf.

Betts, 726 F.2d at 80 (subpoena issued; prosecu-

tor 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

12292 AL-KIDD v. ASHCROFT

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 prosecu-

tion 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.2d

at 66 (“Plaintiff subsequently testified as a gov-

ernment 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 preemp-

tive detention, rather than as one to secure a witness’s testi-

mony 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 evi-

dence he was supposedly going to provide

against Al-Hussayen) constituted a “major suc-

cess[ ]” in “identifying and dismantling terrorist

networks.” Mueller Testimony, supra. Cf. KRL,

384 F.3d at 1114-15 (prosecutor contemporane-

ously admits on radio program that follow-up

search warrant was part of “a stand-alone investi-

gation”).

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

AL-KIDD v. ASHCROFT 12293

national security function. Before addressing each of al-

Kidd’s claims in turn, we address the general requirements of

qualified immunity applicable to all his claims.

1. Qualified Immunity Generally

Determining whether officials are owed qualified immunity

involves two inquiries: (1) whether, taken in the light most

favorable to the party asserting the injury, the facts alleged

show the officer’s conduct violated a constitutional right; and

(2) if so, whether the right was clearly established in light of

the specific context of the case. Saucier v. Katz, 533 U.S. 194,

201 (2001). “For a constitutional right to be clearly estab-

lished, 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. Pear-

son v. Callahan, ___ U.S. ___, 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. at 818.

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 allega-

tions of the defendant’s personal involvement in the depriva-

tion of the right at the second stage of the qualified immunity

analysis. Neither a 42 U.S.C. § 1983 nor a Bivens action will

hold a supervisor strictly vicariously liable for the actions of

his subordinates under a theory of respondeat superior. Iqbal,

129 S. Ct. at 1948. Although this question is a part of the sub-

12294 AL-KIDD v. ASHCROFT

stance of § 1983 and Bivens liability, it is also a proper com-

ponent of the qualified immunity inquiry:

In conducting qualified immunity analysis . . . ,

courts do not merely ask whether, taking the plain-

tiff’s allegations as true, the plaintiff’s clearly estab-

lished 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 con-

duct.

Hope, 536 U.S. at 751 n.9 (Thomas, J., dissenting). In Kwai

Fun Wong v. United States, we, on interlocutory appeal, dis-

missed 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 “di-

rect, personal participation is not necessary to establish liabil-

ity 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 ter-

minate a series of acts by others, which they knew or reason-

ably 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 acqui-

escence 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).

AL-KIDD v. ASHCROFT 12295

Any one of these bases will suffice to establish the personal

involvement of the defendant in the constitutional violation.

3. The Fourth Amendment Claim

Al-Kidd’s complaint principally alleges that Ashcroft “de-

veloped, 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 crimi-

nal charges but wished to hold preventively or to investigate

further.” Al-Kidd argues that using § 3144 to detain suspects

to investigate them violates the Fourth Amendment’s guaran-

tee against unreasonable seizure.

a. Al-Kidd’s Fourth Amendment Rights Were Violated.

[6] The Fourth Amendment to the United States Constitu-

tion provides:

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 affirma-

tion, 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 “sei-

zures” 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 inno-

cent persons as material witnesses is permissible under the

Fourth Amendment,15 and this circuit, in one of the few

15

Two decisions have held that it does not violate other provisions of

the Constitution. See Hurtado v. United States, 410 U.S. 578, 589-90

12296 AL-KIDD v. ASHCROFT

circuit-level cases to examine the validity of material witness

detentions under the Fourth Amendment, declined to reach

the facial constitutionality of the predecessor of § 3144. Id. at

941. Al-Kidd does not contend that § 3144 is facially uncon-

stitutional. Rather, he contends that it is intended to be a “lim-

ited exception” to the ordinary rule that arrests may only be

made upon probable cause of criminal wrongdoing. He fur-

ther claims that its use for any purpose other than obtaining

testimony, and specifically to investigate or preemptively

detain terrorism suspects, without probable cause, is unconsti-

tutional. Ashcroft contends that this position is inconsistent

with Whren v. United States’s rule that “[s]ubjective inten-

tions play no role in ordinary, probable-cause Fourth Amend-

ment analysis.” 517 U.S. 806, 813 (1996). But arrests of

material witnesses are neither “ordinary,”16 nor involve “prob-

able cause” as that term has historically been understood.

(1973) (Fifth and Thirteenth Amendments); New York v. O’Neill, 359 U.S.

1, 6-7 (1959) (Privileges or Immunities Clause of the Fourteenth Amend-

ment). Dicta in two other cases suggest that the practice is ordinarily per-

missible. See Stein v. New York, 346 U.S. 156, 184 (1953), overruled by

Jackson v. Denno, 378 U.S. 368 (1964) (“The duty to disclose knowledge

of crime rests upon all citizens. It is so vital that one known to be innocent

may be detained, in the absence of bail, as a material witness.”); Barry v.

United States ex rel. Cunningham, 279 U.S. 597, 616-17 (1929) (“[A]

court has power in the exercise of a sound discretion to issue a warrant of

arrest without a previous subpoena when there is good reason to believe

that otherwise the witness will not be forthcoming. . . . The constitutional-

ity of this statute apparently has never been doubted.”).

16

In 2003, the year of al-Kidd’s arrest, material witness arrests made up

only 3.6% of all arrests by federal law enforcement agents. Of those,

92.3% were made by the former Immigration and Naturalization Service,

typically to detain illegally smuggled aliens for testimony against their

smugglers before removal. See, e.g., Aguilar-Ayala v. Ruiz, 973 F.2d 411

(5th Cir. 1992). Less than 0.3% of arrests by non-immigration federal law

enforcement agents were material witness arrests. See Bureau of Justice

Statistics, U.S. Dep’t of Justice, Compendium of Federal Justice Statistics,

2003, NCJ No. 210299 (2005), available at http://www.ojp.usdoj.gov/bjs/

pub/pdf/cfjs0301.pdf, at 18.

AL-KIDD v. ASHCROFT 12297

[7] Whren rejected only the proposition that “ulterior

motives can invalidate police conduct that is justifiable on the

basis of probable cause to believe that a violation of law has

occurred.” Id. at 811 (emphasis added). Indeed, probable

cause, since before the founding, has always been a term of

art of criminal procedure. As Chief Justice Marshall wrote:

[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 cir-

cumstances 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 circum-

stances within the officer’s knowledge that are suffi-

cient to warrant a prudent person, or one of

reasonable caution, in believing, in the circum-

12298 AL-KIDD v. ASHCROFT

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 com-

ponent (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 require-

ments of § 3144 (materiality and impracticability) do not con-

stitute the elements of a crime.17

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 differ-

ent requirements for probable cause in situations for the sei-

zure 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 inapplica-

ble, and nothing in our holding here contravenes Zurcher.

17

One may commit a crime by ignoring or disobeying a subpoena. 18

U.S.C. § 401(3) (authorizing criminal contempt for “[d]isobedience or

resistance to [a court’s] lawful writ, process, order, rule, decree, or com-

mand”). This was not the case here, where al-Kidd does not ever seem to

have been subpoenaed.

AL-KIDD v. ASHCROFT 12299

Further, our decision in Bacon v. United States is not to the

contrary. In Bacon, we held that the two criteria for arrest in

the predecessor of § 3144, materiality of the witness’s testi-

mony and impracticability of securing the witness’s testimony

by subpoena, must be met by “probable cause” to arrest the

material witness. 449 F.2d at 943.18 We stated that “[t]hese

requirements are reasonable, and if they are met, an arrest

warrant may issue.” Id. Bacon cannot be read for the proposi-

tion that this alone satisfies the “probable cause” requirement

of the Fourth Amendment, however, and even if it could, such

a reading has been superseded by the dozens of subsequent

Supreme Court reaffirmations of the traditional definition of

probable cause. Rather, Bacon simply borrowed, by analogy,

some of the procedural protections traditionally afforded to

criminal suspects, including the burden-of-proof component

of probable cause. We therefore required that the elements of

the material witness statute be shown by “probable cause,”

not because that, in itself, satisfies the Fourth Amendment’s

“probable cause” requirement, but because permitting arrests

only upon establishing the elements by that burden of proof

was “reasonable” under the Fourth Amendment. Id.

18

The petitioner in Bacon was detained as a material witness in a grand

jury proceeding. We stated that “a mere statement by a responsible offi-

cial, such as the United States Attorney, is sufficient to satisfy” the materi-

ality criterion in the case of a witness for a grand jury, which maintains

broad powers of investigation and whose proceedings are secret. 449 F.2d

at 943. Bacon reserved the question of what showing is necessary “in the

case of a witness who is to testify at a trial.” Id. We currently see no rea-

son that the showing of materiality as to the witness in a trial, where pro-

ceedings are public and bound by the charges in the indictment, should be

any different from the showing required for impracticability.

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 wit-

ness 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).

12300 AL-KIDD v. ASHCROFT

[8] Because material witness arrests are seizures without

suspicion of wrongdoing, the Whren rule, that subjective

motivation is irrelevant in the presence of probable cause,

does not apply to our Fourth Amendment analysis in this case.

In City of Indianapolis v. Edmond, the Supreme Court struck

down motor vehicle checkpoints set up “to interdict unlawful

drugs” carried by those stopped. 531 U.S. 32, 35 (2000). The

Court explained that “programmatic purposes may be relevant

to the validity of Fourth Amendment intrusions undertaken

pursuant to a general scheme without individualized suspi-

cion. Accordingly, Whren does not preclude an inquiry into

programmatic purpose in such contexts.” Id. at 45-46. The

Court went on to clarify:

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 deter-

mine the primary purpose of the checkpoint pro-

gram. While we recognize the challenges inherent in

a purpose inquiry, courts routinely engage in this

enterprise in many areas of constitutional jurispru-

dence as a means of sifting abusive governmental

conduct from that which is lawful. As a result, a pro-

gram driven by an impermissible purpose may be

proscribed while a program impelled by licit pur-

poses is permitted, even though the challenged con-

duct may be outwardly similar. While

reasonableness under the Fourth Amendment is pre-

dominantly an objective inquiry, our special needs

and administrative search cases demonstrate that

purpose is often relevant when suspicionless intru-

sions pursuant to a general scheme are at issue.

Id. at 46-47 (citation omitted).

AL-KIDD v. ASHCROFT 12301

[9] Edmond, therefore, establishes that “programmatic pur-

pose” is relevant to Fourth Amendment analysis of programs

of seizures without probable cause.19 It further establishes that

if that programmatic purpose is criminal investigation, it is

fatal to the program’s constitutionality: “the constitutional

defect of the program is that its primary purpose is to advance

the general interest in crime control.” Id. at 44. The following

year’s Ferguson v. City of Charleston held unconstitutional a

program of mandatory drug testing of maternity patients

because “the immediate objective of the searches was to gen-

erate evidence for law enforcement purposes” against the

women tested. 532 U.S. 67, 83 (2001). By contrast, in Illinois

v. Lidster, the Court upheld seizures at a motor vehicle check-

point set up by the police a week after a hit-and-run accident,

“at about the same time of night and at about the same place”

as the accident, where the checkpoint was “designed to obtain

more information about the accident from the motoring pub-

lic.” 540 U.S. 419, 422 (2004). The Court in Lidster distin-

guished the seizure in Edmond on the basis that, in Lidster:

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-

19

The dissent contends that United States v. Villamonte-Marquez, 462

U.S. 579 (1983), does not allow such a broad reading of Edmond. Dissent

at 12340-41. Villamonte-Marquez, however, is factually limited to

searches of sea vessels located in waters providing ready access to the

open sea. 462 U.S. at 581 (“[W]e are concerned only with the more nar-

row issue” of whether “the Fourth Amendment is offended when Customs

officials . . . board for inspection of documents a vessel that is located in

waters providing ready access to the open sea”). The Supreme Court has

expressly distinguished searches of such sea vessels from other types of

searches—those of automobiles on land, for example. Id. at 584-92. Only

under the most contorted reading of Villamonte-Marquez would that case

also apply to the pretextual detention of a person under a material witness

statute.

12302 AL-KIDD v. ASHCROFT

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 unconstitu-

tional.

[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 pol-

icy as contemplated by Edmond, 531 U.S. at 457, and finding

that the purpose of the policy alleged in al-Kidd’s first

20

We are mindful of the difference between a traffic stop and a material

witness arrest. The material witness is subject to a seizure an order of

magnitude greater than that at issue in Lidster, where the stops were

“brief,” and were of drivers in their cars. (As the Court noted, the “Fourth

Amendment does not treat a motorist’s car as his castle.” 540 U.S. at 424.)

An individual seized as a material witness is taken from her home and

daily affairs and confined to a small space for a period of time measured

not in minutes or even hours, but ranging from days to months. Al-Kidd

disclaims any attack on material witness detention generally, and we are

in any event bound by Bacon’s determination that the material witness

statute, backed by a “probable cause” requirement to guarantee particular-

ity, has struck a “reasonable” balance between the witness’s interest in lib-

erty and the government’s need for testimony. But the severity of the

deprivation of liberty in material witness arrests only militates for corre-

spondingly more severe judicial scrutiny of its application.

AL-KIDD v. ASHCROFT 12303

amended complaint impermissible under the Fourth Amend-

ment.

[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 pres-

ence of the person by subpoena,” 18 U.S.C. § 3144, a show-

ing of probable cause is not required. Our holding does

nothing to curb the use of the material witness statute for its

stated purpose. What we do hold is that probable cause—

including individualized suspicion of criminal wrongdoing—

is required when 18 U.S.C. § 3144 is not being used for its

stated purpose, but instead for the purpose of criminal investi-

gation. We thus do not render the material witness statute

“entirely superfluous,” dissent at 12339; it is only the misuse

of the statute, resulting in the detention of a person without

probable cause for purposes of criminal investigation, that is

repugnant to the Fourth Amendment.

[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 § 3144 for other

ends, such as the detention of persons suspected of criminal

activity for which probable cause has not yet been estab-

lished.”).

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-

12304 AL-KIDD v. ASHCROFT

lates the Constitution, we should still grant him qualified

immunity because that constitutional right was not “clearly

established” in March 2003, when al-Kidd was arrested. We

disagree.

In March 2003, no case had squarely confronted the ques-

tion of whether misuse of the material witness statute to

investigate suspects violates the Constitution. Both the com-

plaint and Amici Former Federal Prosecutors note the unprec-

edented 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 vio-

lates 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.

AL-KIDD v. ASHCROFT 12305

What obiter dicta existed on material witness detention, how-

ever, clearly linked its justification only to the state’s overrid-

ing need to compel testimony in criminal cases.21 Even dicta,

if sufficiently clear, can suffice to “clearly establish” a consti-

tutional right. See Hope, 536 U.S. at 740-41. But there is

more.

[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 pur-

pose renders a program of seizures without probable cause

unconstitutional, had been decided two and a half years ear-

lier. 531 U.S. at 47. That holding was reaffirmed the follow-

ing 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 unconstitu-

tional. Those decisions, which emphasized that an investiga-

tory 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 wit-

ness detentions—involving a far more severe seizure than a

21

See, e.g., Stein, 346 U.S. at 184 (1953) (“The duty to disclose knowl-

edge of crime rests upon all citizens. It is so vital that one known to be

innocent may be detained, in the absence of bail, as a material witness.”);

Barry, 279 U.S. at 617 (stating that the material witness statute then in

effect “provides that any federal judge . . . may have [material witnesses]

brought before him by a warrant of arrest, to give recognizance, and that

such person may be confined until removed for the purpose of giving his

testimony”) (emphasis added); Bacon, 449 F.2d at 942 (“The public inter-

est [in detaining witnesses] will be protected if grand jury witnesses come

forth to provide testimony concerning the possible commission of

crimes.”); Awadallah I, 202 F. Supp. 2d at 77 (“The only legitimate reason

to detain a grand jury witness is to aid in ‘an ex parte investigation to

determine whether a crime has been committed and whether criminal pro-

ceedings should be instituted against any person.’ ” (quoting United States

v. Calandra, 414 U.S. 338, 343-44 (1974))).

12306 AL-KIDD v. ASHCROFT

mere traffic stop—would be similarly subject to an inquiry

into programmatic purpose.

Moreover, the history and purposes of the Fourth Amend-

ment 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 sei-

zure by officers acting under the unbridled authority of a gen-

eral 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, anony-

mously published by John Wilkes, then a member of

Parliament—particularly issue No. 45 of that journal.

AL-KIDD v. ASHCROFT 12307

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, lis-

tened 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 § 3144 itself should not be abused as an investiga-

tory anti-terrorism tool, calling out Ashcroft by name:

Other reasons may motivate prosecutors and law

enforcement officers to rely upon the material wit-

ness statute. Attorney General John Ashcroft has

been reported as saying: “Aggressive detention of

12308 AL-KIDD v. ASHCROFT

lawbreakers and material witnesses is vital to pre-

venting, 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

22

Mr. Awadallah was detained shortly after the September 11 attacks.

Awadallah II, 349 F.3d at 45 (Sept. 20, 2001). He sought his release

almost immediately. Id. at 47 (Sept. 25, 2001). By April of 2003, his case

had finally reached the court of appeals. Given the speed of our appellate

process, it would have been almost impossible for any authority higher

than a district court to have opined on defendant’s material witness poli-

cies before March 2003. As noted above, the Second Circuit later indi-

cated, in dicta of its own, its agreement with the district court’s statement

on this question, even as it reversed the district court’s holding and

remanded the case. Id. at 59.

AL-KIDD v. ASHCROFT 12309

unflinching discharge of their duties.” Gregoire v. Biddle, 177

F.2d 579, 581 (2d Cir. 1949). But, as the Supreme Court has

aptly noted, qualified immunity must

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 stat-

utory 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 § 3144 for

unconstitutional purposes the statute did not intend, al-Kidd

alleges that his arrest violated the terms of § 3144 itself. Sec-

tion 3144 authorizes the arrest of material witnesses only if

(1) “the testimony of a person is material in a criminal pro-

ceeding,” and (2) “it may become impracticable to secure the

presence of the person by subpoena.” Bacon v. United States

requires that these elements be shown by presenting the judi-

cial officer with an affidavit showing “the underlying facts or

circumstances from which the judicial officer could find prob-

able cause.” 449 F.2d at 943. Al-Kidd claims that, in his case,

the Mace Affidavit fails to demonstrate probable cause for

either the materiality of his testimony or the reasons it would

be impracticable to secure that testimony by subpoena. This

12310 AL-KIDD v. ASHCROFT

allegation is the § 3144 claim: that, independent of the consti-

tutionality of the use of § 3144 for investigatory purposes, al-

Kidd’s arrest failed to meet the statutory requirements set

forth by Congress, and was therefore unlawful.

AL-KIDD v. ASHCROFT 12311

Volume 2 of 2

12312 AL-KIDD v. ASHCROFT

Although the arrest was conducted pursuant to a warrant

issued by a magistrate judge, we allow challenges to the

validity of searches and seizures conducted pursuant to a war-

rant if the affidavit in support of the warrant included false

statements or material omissions that were made intentionally

or recklessly. See Franks v. Delaware, 438 U.S. 154, 155-56

(1978); United States v. Stanert, 762 F.2d 775, 781 (9th Cir.

1985) (extending Franks to material omissions); see also

Awadallah I, 349 F.3d at 64-65 & n.17 (assuming, without

deciding, that Franks applies to a material witness warrants

and conducting the Franks analysis). Ashcroft does not con-

test that such an inquiry would be appropriate, or that reckless

or intentional misstatements or omissions could, if proven,

constitute a valid claim of the violation of a clearly estab-

lished right. Rather, he argues that al-Kidd has not pled suffi-

cient acts or omissions to establish supervisory liability for

the § 3144 Claim.23

Prior to Bell Atlantic Company v. Twombly, 550 U.S. 544,

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 suf-

fice to plead an antitrust violation under 15 U.S.C. § 1. 550

U.S. at 548. While the Court expressly disclaimed any inten-

23

As discussed previously, “a plaintiff must plead that each

Government-official defendant, though the official’s own individual

actions” were involved in the constitutional deprivations. Iqbal, 129 S. Ct.

at 1948.

AL-KIDD v. ASHCROFT 12313

tion to require general “heightened fact pleading of specifics,”

id. at 570, and reaffirmed the holding of Swierkiewicz v.

Sorema N.A., 534 U.S. 506 (2002) (rejecting a fact pleading

requirement for Title VII employment discrimination), it

stated that, to avoid dismissal under Federal Rule of Civil

Procedure 12(b)(6), a plaintiff must aver “enough facts to

state a claim to relief that is plausible on its face,” id. at 570.

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 reli-

gion. 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 Rule

8 of the Federal Rules of Civil Procedure. Id. at 1949 (quoting

Twombly, 550 U.S. at 555).

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 assump-

tion of truth because they amounted to “nothing more than a

‘formulaic recitation of the elements’ of a constitutional dis-

12314 AL-KIDD v. ASHCROFT

crimination claim.” Id. at 1951 (quoting Twombly, 550 U.S.

at 555). The Court noted that the alleged facts, even if

accepted as true, were more compatible on their face with

lawful conduct. Id.

[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 depart-

ment’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 testi-

mony 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 wit-

ness. 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 stat-

ute 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 v. ASHCROFT 12315

that Ashcroft ordered, encouraged, or permitted “policies and

practices [whereby] individuals have also been impermissibly

arrested and detained as material witnesses even though there

was no reason to believe it would have been practicable to

secure their testimony voluntarily or by subpoena.”24 His

complaint notes “one account” of material witness practices

stating that “nearly fifty percent of those detained in connec-

tion with post-9/11 terrorism investigations were not called to

testify.” In a declaration filed in another proceeding well

before al-Kidd’s arrest, a DOJ official admitted that, of those

detained as material witnesses, “it may turn out that these

individuals have no information useful to the investigation.”

Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d

918, 942 (D.C. Cir. 2003) (Tatel, J., dissenting) (quoting Dec-

laration of James Reynolds, Chief of the Terrorism and Vio-

lent Crime Section, Criminal Division, Dep’t of Justice).

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 pre-

ventatively detain suspects and that al-Kidd was subjected to

this policy.25 As discussed above, Ashcroft publically stated

24

Ashcroft contends that al-Kidd does not even go so far as to make

such an assertion, and that he never explicitly says in his complaint that

Ashcroft designed such a policy. This argument requires a hypertechnical

reading of the complaint. The paragraph alleging outright violations of

§ 3144 begins with “the post-9/11 policies and practices,” with the definite

article. (Emphasis added). There is no reason from the text of the com-

plaint to think that those “post-9/11 policies and practices” are anything

other than “The post-9/11 material witness policies and practices adopted

and implemented by Defendant Ashcroft” alleged fourteen paragraphs ear-

lier in the complaint. (Emphasis added).

25

The dissent contends that the “knowing failure to act” standard did not

survive Iqbal. Dissent at 12345 n.13. The dissent points to the fact that the

12316 AL-KIDD v. ASHCROFT

that the material witness statute was an important tool in “tak-

ing suspected terrorists off the street,” and that “[a]ggressive

detention of . . . material witnesses is vital to preventing, dis-

rupting or delaying new attacks.” Again, unlike in Iqbal, these

are not bare allegations that the Attorney General “knew of”

the policy. Here, the complaint contains allegations that plau-

sibly suggest that Ashcroft purposely instructed his subordi-

nates to bypass the plain reading of the statute.26 “The

plausibility standard is not akin to a ‘probability requirement’

but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Iqbal, 129 S. Ct. at 1949 (citing

Twombly, 550 U.S. at 556). Here, the allegations recounted

above clearly “nudge[ ]” al-Kidd’s claim of illegality “across

the line from conceivable to plausible.” Id. at 1952 (citing

Twombly, 550 U.S. at 570).

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 Ash-

croft sufficient notice to require affirmative acts to supervise

and correct the actions of his subordinates. The complaint also

Court held that Ashcroft could not be held liable for his “knowledge and

acquiescence” of his subordinates’ unconstitutional discrimination against

Muslim men. 129 S.Ct. at 1948. We need not address whether the two

standards are distinct, or whether the Court’s comments relate solely to

discrimination claims which have an intent element, because al-Kidd plau-

sibly pleads “purpose” rather than just “knowledge” to impose liability on

Ashcroft. Id. at 1949 (“[P]urpose rather than knowledge is required to

impose Bivens liability . . . for an official charged with violations arising

from his or her superintendent responsibilities.”).

26

The dissent believes that al-Kidd’s complaint plausibly demonstrates

only that Ashcroft directed his subordinates to use the statute “pretextual-

ly,” not “unlawfully.” Dissent at 12348. As discussed above, the pretextual

use of the material witness statute that results in a person being detained

for criminal investigation without adequate probable cause runs afoul of

the Fourth Amendment, and is thus unlawful.

AL-KIDD v. ASHCROFT 12317

avers that “the Justice Department has issued apologies to 10-

12 individuals who were improperly arrested as material wit-

nesses.” Given that the government maintains that it does

nothing wrong in the pretextual use of the material witness

statute to investigate and preemptively detain, it is reasonable

to infer that its apologies were for violations of the terms of

the statute itself, of which the DOJ, and presumably its leader,

were aware.27 The complaint also contains extensive citations

to the OIG Report, which discussed at length abuses and

improprieties that occurred in a related context, involving

investigatory detention of aliens. While the OIG Report was

not released to the public until April 2003, it is reasonable to

believe that Ashcroft, as Attorney General, would have been

aware of its contents at a date preceding al-Kidd’s arrest.

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 informa-

tion,” perhaps because defendants took plea deals or prosecu-

tors 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 stat-

ute 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 depart-

ment’s concentrated strategy to prevent terrorist attacks by

taking suspected terrorists off the street.” Other top DOJ offi-

cials 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-

27

To be sure, this is not a necessary inference: the apologies could have

been for wrongs that do not rise to the level of a constitutional violation.

But neither is it an unreasonable inference, and on a Rule 12(b)(6) motion,

we draw all reasonable inferences in favor of the plaintiff.

12318 AL-KIDD v. ASHCROFT

ness. We disagree with the dissent, and hold that al-Kidd has

plead that Ashcroft’s “concerted strategy” of misusing the

material witness statute plausibly led to al-Kidd’s detention.

Post-Twombly, plaintiffs face a higher burden of pleading

facts, and courts face greater uncertainty in evaluating com-

plaints. 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 dis-

covery for a plaintiff armed with nothing more than conclu-

sions.” 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 con-

cerns of litigation, including ‘avoidance of disruptive discov-

ery.’ ” 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 § 3144 claim should be

allowed to proceed. Id. at 1950.

[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

§ 3144. But Twombly and Iqbal do not require that the com-

plaint include all facts necessary to carry the plaintiff’s bur-

den. “Asking for plausible grounds to infer” the existence of

a claim for relief “does not impose a probability requirement

at the pleading stage; it simply calls for enough fact to raise

a reasonable expectation that discovery will reveal evidence”

to prove that claim. Twombly, 550 U.S. at 556. In this case,

we hold that al-Kidd has pled “enough facts to state a claim

to relief that is plausible on its face.” Id. at 570.

AL-KIDD v. ASHCROFT 12319

5. Conditions of Confinement Claim

Lastly, al-Kidd complains that he was mistreated while

confined as a material witness. Confinement of criminals is a

punishment, and, within the limits of the Fifth and Eighth

Amendments, it is supposed to be unpleasant. However,

when, as here, the government is empowered to detain those

who are not charged with crimes, it is under an obligation not

to treat them like criminals. See Youngsberg v. Romeo, 457

U.S. 307, 321-22 (1982) (“Persons who have been involuntar-

ily 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 mini-

mum 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 com-

mitted” 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 estab-

lished.” Rather, as with the § 3144 Claim, he argues only that

al-Kidd has failed to plead sufficient facts to tie Ashcroft, per-

sonally, 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 Ash-

croft’s liability for the conditions of confinement at the Met-

ropolitan Detention Center in New York, where aliens

12320 AL-KIDD v. ASHCROFT

arrested after 9/11 were held. 129 S. Ct. at 1944. Iqbal’s com-

plaint alleged that Ashcroft and FBI Director Robert Mueller

approved of these highly restrictive detention policies in dis-

cussions that took place in the weeks after September 11,

2001. Id. at 1951. Similarly, al-Kidd claims here that Ashcroft

promulgated and approved the unlawful policy which caused

al-Kidd “to be subjected to prolonged, excessive, punitive,

harsh, unreasonable detention or post-release conditions.”

Contrary to the § 3144 claim, however, the complaint does

not allege any specific facts—such as statements from Ash-

croft or from high ranking officials in the DOJ—establishing

that Ashcroft had personal involvement in setting the condi-

tions of confinement.

As al-Kidd’s complaint notes, media reports had observed

the conditions detailed in the OIG Report to apply to Ameri-

cans and legal aliens held as material witnesses. See, e.g.,

Naftali Bendavid, Material Witness Arrests Under Fire; Doz-

ens Detained in War on Terror, Chi. Trib., Dec. 24, 2001, at

N1; Fainaru & Williams, supra, at A1; John Riley, Held With-

out Charge: Material Witness Law Puts Detainees in Legal

Limbo, N.Y. Newsday, Sept. 18, 2002, at A6. Their condi-

tions 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, with-

out 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 individu-

als arrested or indicted for criminal conduct.

. . . In many ways, . . . the conditions of his con-

finement were more restrictive than that experienced

by the general prison population.

AL-KIDD v. ASHCROFT 12321

202 F. Supp. 2d at 60; see id. at 60-61 & nn.5-10 (describing

Awadallah’s allegations of mistreatment while in custody).

While it is possible that these reports were sufficient to put

Ashcroft on notice by spring of 2003 that there was a sys-

temic problem at the DOJ with respect to its treatment of

material witnesses, the non-specific allegations in the com-

plaint regarding Ashcroft’s involvement fail to nudge the pos-

sible to the plausible, as required by Twombly.

[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 con-

stitutional injury” regarding the illegal use of the material wit-

ness 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 Rule 8. Accordingly,

we reverse the district court on al-Kidd’s Conditions of Con-

finement claim, and hold that al-Kidd has not alleged ade-

quate facts to render plausible Ashcroft’s personal

involvement in setting the harsh conditions of his confine-

ment, and has therefore failed to state a claim for which relief

can be granted.

C. Personal Jurisdiction

Finally, Ashcroft contends that the district court erred in

denying Ashcroft’s Rule 12(b)(2) motion to dismiss for lack

of personal jurisdiction. As this is an interlocutory appeal, we

will address the issue only to the extent it falls within our pen-

dent appellate jurisdiction.

1. “Necessary to Provide Meaningful Review”

Ashcroft first alleges that the issue of personal jurisdiction

is “necessary to provide meaningful review” of the district

12322 AL-KIDD v. ASHCROFT

court’s immunity rulings. It is true that personal jurisdiction

was a necessary predicate to the district court’s Rule 12(b)(6)

ruling denying Ashcroft absolute and qualified immunity. But

that could be said about any ruling following a decision on

personal jurisdiction, so that alone cannot make our review of

personal jurisdiction “necessary to provide meaningful

review.” See, e.g., Poulos v. Caesars World, Inc., 379 F.3d

654, 671-72 (9th Cir. 2004) (holding that personal jurisdiction

not “necessary to ensure meaningful review” of class certifi-

cation); see also Rux v. Republic of Sudan, 461 F.3d 461,

475-76 (4th Cir. 2006) (same with respect to review of subject

matter jurisdiction under FISA); E.I. DuPont de Nemours &

Co. v. Rhone Poulenc Fiber & Resin Intermediaries, S.A.S.,

269 F.3d 187, 204-05 (3d Cir. 2001) (same with respect to

review of motion to compel arbitration).

The only cases that Ashcroft cites to suggest that personal

jurisdiction is necessary to ensure meaningful review are

cases involving interlocutory appeals of temporary injunc-

tions. 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. Inte-

grated 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 ques-

tion 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 per-

sonal jurisdiction decision is immediately reviewable on

appeal”).

AL-KIDD v. ASHCROFT 12323

2. “Inextricably Intertwined”

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 inter-

locutory appeal necessarily resolves the pendent issue.” Batzel

v. Smith, 333 F.3d 1018, 1023 (9th Cir. 2003) (internal quota-

tion 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 jurisdic-

tion 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 purpose-

fully 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 resolu-

tion 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

12324 AL-KIDD v. ASHCROFT

Idaho, or that he did not know that his acts were likely to

cause harm in Idaho, we decline to rule on the issue. Far from

being “inextricably intertwined,” those issues are irrelevant to

any element of absolute or qualified immunity. The federal

courts of appeals are courts of limited jurisdiction, and Con-

gress has not seen fit to give this court the general power to

review district courts’ exercise of personal jurisdiction before

a final judgment. We therefore will not do so here.

CONCLUSION

Almost two and a half centuries ago, William Blackstone,

considered by many to be the preeminent pre-Revolutionary

War authority on the common law, wrote:

To bereave a man of life, or by violence to confis-

cate 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 gov-

ernment has recently exercised such a “dangerous engine of

arbitrary government” against a significant number of its citi-

zens, and given good reason for disfavored minorities (who-

ever 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

AL-KIDD v. ASHCROFT 12325

Framers of our Constitution would have disapproved of the

arrest, detention, and harsh confinement of a United States

citizen as a “material witness” under the circumstances, and

for the immediate purpose alleged, in al-Kidd’s complaint.

Sadly, however, even now, more than 217 years after the rati-

fication of the Fourth Amendment to the Constitution, some

confidently assert that the government has the power to arrest

and detain or restrict American citizens for months on end, in

sometimes primitive conditions, not because there is evidence

that they have committed a crime, but merely because the

government wishes to investigate them for possible wrongdo-

ing, or to prevent them from having contact with others in the

outside world. We find this to be repugnant to the Constitu-

tion, and a painful reminder of some of the most ignominious

chapters of our national history.

For the reasons indicated in this opinion, we AFFIRM in

part and REVERSE in part the decision of the district court.

Each party shall bear its own costs on appeal.

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 noth-

ing 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!”

12326 AL-KIDD v. ASHCROFT

But under our law, that natural reaction would be wrong.

For reasons of public policy, our law provides the prosecutor

with official immunity—perhaps not immunity from being

fired, impeached, or hounded from public life, but immunity

nonetheless—from lawsuits for money damages based on the

acts he undertakes on behalf of the public.

The Supreme Court has developed this law by repeatedly

instructing us not to inquire into the personal, subjective

intentions of a government official when determining whether

the official is protected by official immunity. Reading the

minds of government officials is notoriously expensive,

uncertain, and fraught with error. The very purpose of official

immunity is to shield the purses of government officials from

the high costs of civil damages lawsuits. If official immunity

were to depend upon proof of the officials’ good intentions,

the value of that immunity would be lost.

Yet today, the majority permits plaintiff Abdullah al-Kidd

to seek redress from the wallet of a federal cabinet-level offi-

cial for injuries al-Kidd alleges he suffered when he was

detained—pursuant to a warrant signed and issued by a neu-

tral 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.

AL-KIDD v. ASHCROFT 12327

I also dissent from the majority’s resolution of al-Kidd’s

claim that Ashcroft is personally liable for the inclusion of

claimed material misrepresentations and omissions in the affi-

davit supporting the material witness warrant on which al-

Kidd was detained. Al-Kidd’s complaint does not state facts

sufficient plausibly to show Ashcroft was personally responsi-

ble for the claimed falsities. See Ashcroft v. Iqbal, 129 S. Ct.

1937 (2009).

I. Background

After 9/11, in connection with an investigation into terrorist

activities in Idaho, federal agents interviewed al-Kidd on sev-

eral 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 prose-

cution and was on the run, and then arrested al-Kidd at Dulles

International Airport as he was about to board a plane to

1

As the majority states, the Al-Hussayen indictment alleged that one of

the IANA’s purposes was “indoctrination, recruitment of members, and

the instigation of acts of violence and terrorism.” The Al-Hussayen indict-

ment also alleged Al-Hussayen himself was the sole registrant of another

website, www.alasr.ws, which was affiliated with the IANA’s website

through a third website belonging to the IANA. The www.alasr.ws web-

site published an article in June 2001 entitled “Provision of Suicide Opera-

tions,” which advocated suicide bombings and “bringing down” aircraft.

12328 AL-KIDD v. ASHCROFT

Saudi Arabia. The government held al-Kidd for fourteen days

and released him only when al-Kidd surrendered his passport

and agreed to certain conditions of release. In the event, al-

Kidd was never called to testify at al-Hussayen’s trial.

Al-Kidd filed this action under Bivens v. Six Unknown

Named Agents, 403 U.S. 388 (1971), in the United States Dis-

trict Court for the District of Idaho. Al-Kidd named as defen-

dants 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 uncon-

stitutionally 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’ subjec-

tive 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 pre-

textual, it was also invalid because it was based on an affida-

vit 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.

AL-KIDD v. ASHCROFT 12329

The majority concludes that al-Kidd has not adequately

pleaded Ashcroft’s personal involvement in the decision to

subject him to unconstitutionally harsh conditions of confine-

ment. I agree, and therefore I join in Part B.5 of the majority

opinion (“The Conditions of Confinement Claim”).

As to al-Kidd’s second and third claims, however, the

majority affirms the district court’s order denying Ashcroft’s

motion to dismiss.

I disagree. As to al-Kidd’s claim prosecutors used the mate-

rial witness statute as a pretext to pursue other, investigatory

or crime prevention agendas, the answer is simply that such

pretext does not invalidate the arrest warrant; I would hold

Ashcroft is shielded by qualified immunity. In light of the

considerable authority recognizing that the pretextual use of

an objectively justifiable search or seizure does not violate the

Fourth Amendment, it follows the federal agents did not vio-

late al-Kidd’s constitutional rights. But if I’m wrong, in any

case al-Kidd’s right not to be arrested on an objectively valid,

but pretextual arrest warrant was not “clearly established” in

March 2003, when al-Kidd was detained, and qualified immu-

nity therefore shields Ashcroft from al-Kidd’s claims. See

Saucier v. Katz, 533 U.S. 194 (2001). I therefore dissent from

part B.3 of the majority opinion (“The Fourth Amendment

Claim”).

As to al-Kidd’s claim that his detention violated the Fourth

Amendment and the terms of the material witness statute

because the supporting warrant application contained material

misrepresentations and omissions, we cannot reach the merits

of his claim, for—as with his claim that Ashcroft is liable for

the claimed wretched conditions of al-Kidd’s confinement, as

to which all of us agree his claim fails—al-Kidd has failed to

allege facts sufficient to establish Ashcroft’s personal liability

for such conduct. See Ashcroft v. Iqbal, 556 U.S. __, 129

S. Ct. 1937 (2009). Therefore I dissent from part B.4 of the

majority opinion.

12330 AL-KIDD v. ASHCROFT

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 omis-

sions 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, abso-

lute 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, regard-

less 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

2

I express no opinion as to parts B.1 (“Qualified Immunity Generally”)

and B.2 (“Qualified Immunity for Supervisors”). I also express no opinion

as to part C (“Personal Jurisdiction”). Because I conclude al-Kidd cannot

proceed on his claims against Ashcroft, I would not reach the difficult

question whether this court has pendent appellate jurisdiction over Ash-

croft’s appeal of the district court’s order denying his motion to dismiss

al-Kidd’s claims against him for lack of personal jurisdiction. If it is not

necessary to decide an issue, it is necessary for a common-law court not

to decide it.

3

Al-Kidd later makes this claim separate and distinct from his pretext

claim. It is addressed infra, parts III and IV.

AL-KIDD v. ASHCROFT 12331

Rather, in his pretext claim, al-Kidd contends that even if the

material witness warrant on which he was detained was objec-

tively valid and supported by probable cause, the prosecutor’s

subjective intention to use the material witness warrant to

accomplish other, law-enforcement objectives renders the

government’s conduct unconstitutional. Because al-Kidd had

no constitutional right to be free from such conduct—and cer-

tainly had no clearly established constitutional right—I dis-

sent from the majority’s conclusion that Ashcroft lacks

qualified immunity.

Al-Kidd bases his claims of liberty from arrest on the

Fourth Amendment. The Supreme Court has repeatedly stated

that under the Fourth Amendment, an officer’s subjective

intentions are irrelevant so long as the officer’s conduct is

objectively justified. See, e.g., Maryland v. Macon, 472 U.S.

463, 470-71 (1985) (“Whether a Fourth Amendment violation

has occurred turns on an objective assessment of the officer’s

actions in light of the facts and circumstances confronting him

at the time, and not on the officer’s actual state of mind at the

time the challenged action was taken.” (internal citations and

quotation marks omitted));4 Scott v. United States, 436 U.S.

128, 136-37 (1978) (“Subjective intent alone, the Government

contends, does not make otherwise lawful conduct illegal or

unconstitutional. We think the Government’s position, which

also served as the basis for decision in the Court of Appeals,

4

In Macon, an undercover police officer purchased pornographic mate-

rials from a bookstore. The officer left the bookstore, consulted with fel-

low officers, and, upon concluding the book was pornographic, returned

to the bookstore and arrested the storekeeper and seized the marked bill

the officer used to purchase the book. The Supreme Court held that the

purchase, in a voluntary transaction, of wares by an undercover officer is

not a search within the meaning of the Fourth Amendment. Id. at 469. The

storekeeper contended the officer’s subjective intention to retrieve the

marked $50 bill transformed the sale into a search. Id. at 469-70. The

Supreme Court disagreed and held that because the transaction, objec-

tively viewed, was a sale in the ordinary course of business, the sale did

not constitute a search. Id.

12332 AL-KIDD v. ASHCROFT

embodies the proper approach for evaluating compliance with

the minimization requirement [relating to wiretaps].”);5

United States v. Robinson, 414 U.S. 218, 236 (1973) (holding

that an officer’s objectively lawful search incident to arrest

was lawful though officer lacked the subjective intention—

fear that the arrestee was armed—that normally attaches to

such searches).

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 Fourth Amendment.

In Whren, the Supreme Court held the stop of a vehicle for a

minor traffic violation did not violate the Fourth Amendment

even though the officer was using the stop “as pretext[ ] for

pursuing other investigatory agendas.” Id. at 811. The Court

stated:

We [have] flatly dismissed the idea that an ulterior

motive might serve to strip the agents of their legal

5

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 min-

imize their interception of non-narcotics-related phone calls. Id. The wire-

tap resulted in the arrest and indictment of more than twenty individuals.

Id. Scott moved to suppress the intercepted phone calls on the ground offi-

cers 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’ fail-

ure 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 con-

victed. 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.

AL-KIDD v. ASHCROFT 12333

justification. . . . [S]ubjective intent alone . . . does

not make otherwise lawful conduct illegal or uncon-

stitutional. 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 hypothe-

cated by the reasons which provide the legal justifi-

cation 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 sim-

ple. If you are engaged in conduct that justifies your deten-

tion, you must put up with that detention, even if the officer

who detained you did so out of some secret—and constitu-

tionally 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 subjec-

tive 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 impos-

sibly difficult, expensive, and prone to error. As the Supreme

Court explained in Harlow v. Fitzgerald,

6

For example, imagine two drug smugglers speeding, illegally, down

the highway who are stopped by police. Each smuggler is identical in

every respect, save one: one is stopped by an officer totally ignorant of the

fact that the car is carrying drugs, the other by an officer who suspects the

driver’s involvement in a drug ring. Seen from the perspective of the two

drivers, each should face an identical penalty. Each broke the law and

made himself subject to being stopped. But if the suspicious officer’s sub-

jective intentions invalidate his stop, then one driver escapes punishment

while the other does not. As Devenpeck explained, an individual’s right to

be free of arrest should not depend upon such chance factors as which

police officer arrested him. Id. at 155-56.

12334 AL-KIDD v. ASHCROFT

[t]here are special costs to subjective inquiries of this

kind. . . . Judicial inquiry into subjective motivation

therefore may entail broad-ranging discovery and the

deposing of numerous persons, including an offi-

cial’s professional colleagues. Inquiries of this kind

can be peculiarly disruptive of effective government.

457 U.S. 800, 816-817 (1982) (footnotes and internal quota-

tion 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 vio-

lated none of al-Kidd’s constitutional rights. At a minimum,

these cases would have given a reasonable officer good rea-

son to believe that al-Kidd’s arrest was constitutionally per-

missible.

The majority’s efforts to distinguish Whren are unpersua-

sive. 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 sei-

zures, such as drunk driving roadblocks, by requiring the gov-

ernment to prove its program serves governmental interests

other than the routine collection of evidence for criminal pros-

ecution. 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

Fourth Amendment, courts are limited to an examination of

the objective circumstances which justify the search or sei-

zure, and may not inquire into official purpose. Whren, 517

U.S. at 812 (“Not only have we never held, outside the con-

text of inventory search or administrative inspection[,] . . .

that an officer’s motive invalidates objectively justifiable

AL-KIDD v. ASHCROFT 12335

behavior[,] . . . we have repeatedly held and asserted the con-

trary.”). The programmatic purpose test applies here, the

majority says, because in Edmonds, the Supreme Court said

that Whren did not apply whenever the government conducted

a search or seizure without “probable cause,” and because

“probable cause” means only probable cause to believe the

subject of the arrest committed some wrongdoing. The cases

the majority cites offer no support whatsoever for the majori-

ty’s approach.

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 war-

rant 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 indi-

vidualized 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 continu-

ing oversight; and they issue only upon a showing of probable

cause. Bacon v. United States, 449 F.2d 933, 942 (9th Cir.

12336 AL-KIDD v. ASHCROFT

1971); 18 U.S.C. §§ 3144; Fed. R. Civ. P. 46. The “special

needs” cases bear little resemblance to the highly supervised

process of obtaining a material witness warrant. Given the

protections in § 3144, there is simply no need to inquire into

the government’s “programmatic purpose,” and no case has

ever so required.

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 Fourth Amendment. The validity of a police action under

the Fourth Amendment turns not on the guilt or innocence of

the arrestee, but on whether the government’s reasons for

arresting the individual are weighty enough, and probably fac-

tually likely enough, to justify the intrusion into some individ-

ual’s rights.7 See United States v. Knights, 534 U.S. 112,

118-19 (2001) (“The touchstone of the Fourth Amendment is

reasonableness, and the reasonableness of a search is deter-

mined by assessing, on the one hand, the degree to which it

intrudes upon an individual’s privacy and, on the other, the

degree to which it is needed for the promotion of legitimate

governmental interests.”) (internal quotation marks omitted).

The “probable cause” requirement assures that there is suffi-

cient evidence to believe that the facts that justify the issuance

of the warrant exist—that there is a sufficient “probability”

the government will find what it is looking for when it

intrudes. Id. at 121.

Until today, no case has suggested that the only govern-

mental interest of sufficient weight to justify an arrest is a rea-

7

This is not to deny the existence of what the majority terms the “sub-

stantive component” of the Fourth Amendment. Maj. Op. at 12298.

Instead, this merely demonstrates that this “substantive component” of the

Fourth Amendment can be satisfied by any governmental interest—

whether to detain a wrongdoer or to provide for the production of evidence

against a wrongdoer—weighty enough to justify an intrusion into individ-

ual rights.

AL-KIDD v. ASHCROFT 12337

sonable belief that the arrestee has committed a crime. Most

importantly, the Supreme Court has stated that the govern-

ment’s interest in the integrity of the justice system is impor-

tant enough to justify the arrest of a wholly innocent person

to secure that witness’s appearance at trial. See Stein v. New

York, 346 U.S. 156, 184 (1953) (“The duty to disclose knowl-

edge of crime rests upon all citizens. It is so vital that one

known to be innocent may be detained, in the absence of bail,

as a material witness.”), rev’d on other grounds by Jackson v.

Denno, 378 U.S. 368 (1964); Barry v. United States ex rel.

Cunningham, 279 U.S. 597, 616-17 (1929) (“The constitu-

tionality of [the material witness statute] apparently has never

been doubted.”).8 Our own jurisprudence, too, has recognized

that “probable cause” for an arrest may exist even in the

absence of a reasonable belief that the arrestee has committed

wrongdoing. For example, police officers may arrest individu-

als innocent of any crime if the officer has reason to believe

that the individual is a danger to himself. Maag v. Wessler,

960 F.2d 773, 776 (9th Cir. 1992). To be sure, in the great run

of arrest cases, the relevant inquiry will be whether officers

had probable cause to believe the subject committed wrong-

doing. But none of the cases the majority claims defines prob-

able cause had occasion to consider whether such belief was

the only belief that could justify an arrest.

8

The majority needlessly casts doubt upon the validity of § 3144. Even

if the Supreme Court’s statements on the issue are dicta, they have consid-

erable weight here. In part because we cannot “lightly” disregard any

Supreme Court precedent, Siskiyou Regional Educ. Project v. U.S. Forest

Serv., 565 F.3d 545, 549 n.1 (9th Cir. 2009), and in part because this court

has already positively commented on these statements, see Bacon, 449

F.2d at 941. In any event, Al-Kidd does not contend that a showing of

probable cause to believe (1) that a witness has information that is material

in any criminal proceeding and (2) the witness’s appearance cannot be

secured by subpoena is insufficient to provide objective justification for an

arrest. See Appellee’s Brief at 43. Notably, in neither Barry nor Stein was

there any suggestion that the validity of a material witness warrant would

either turn on the subjective intentions of the officers or depend upon a

demonstration that there was probable cause to believe the subject of the

arrest was guilty of wrongdoing.

12338 AL-KIDD v. ASHCROFT

In the closely analogous context of searches, it is clear that,

consistent with the Fourth Amendment, government agents,

with a warrant supported by probable cause, may intrude to

search upon the premises even of individuals who are sus-

pected of no wrongdoing whatsoever. In Zurcher v. Stanford

Daily, 436 U.S. 547 (1978), government agents obtained a

warrant to search the offices of the Stanford Daily for photo-

graphs that might reveal the identity of protesters who had

assaulted policemen during a campus disturbance. Id. at 548.

There was no claim that Stanford Daily photographers or

employees were themselves the assailants. See id. The

Supreme Court held the warrant was valid, despite the fact

that members of the Stanford Daily were not suspected of

having done anything wrong: “[V]alid warrants may be issued

to search any property, whether or not occupied by a third

party, at which there is probable cause to believe that fruits,

instrumentalities, or evidence of a crime will be found.” Id. at

554 (emphasis added); see also Steagald v. United States, 451

U.S. 204 (1981) (holding that an arrest warrant does not

authorize officers to enter the homes of third parties to exe-

cute the warrant, absent exigent circumstances, without first

obtaining a warrant to enter the premises).9

Though Zurcher involved a search, rather than a seizure, its

rationale is applicable here and squarely rejects the majority’s

contention that the probable cause requirement of the Fourth

Amendment may be satisfied only by suspicion of wrongdo-

ing by the subject of the intrusion. As the Supreme Court

9

Steagald also demonstrates that the majority’s invocation of the Wilkes

cases is inapposite. The evil associated with the general writs and writs of

assistance used in the colonial period was that these warrants “provided

no judicial check on the determination of the executing officials that the

evidence available justified an intrusion into a particular home.” Id. at 220.

§ 3144 provides precisely the check on official discretion that was absent

during the colonial period: supervision by a neutral magistrate. It was not

Lord Halifax or even Attorney General Ashcroft who signed the material

witness warrant that authorized Al-Kidd’s arrest. It was a federal magis-

trate judge.

AL-KIDD v. ASHCROFT 12339

explained, the property owner’s guilt or innocence is simply

irrelevant to the constitutional analysis: “it is apparent that

whether the third-party occupant is suspect or not, the State’s

interest in enforcing the criminal law and recovering the evi-

dence remains the same . . . .” Zurcher, 436 U.S. at 560. And

one who knows he has evidence relevant to a criminal prose-

cution but refuses to hand such evidence over to prosecutors

“is sufficiently culpable to justify the issuance of a search

warrant.” Id. The same holds true for a material witness. The

government’s interest in recovery of evidence from a material

witness is the same whether the witness is guilty or innocent

of wrongdoing. The need to obtain evidence from that witness

and secure his appearance at trial is of sufficient weight to

justify an arrest. See Stein, 346 U.S. at 184; Barry, 279 U.S.

at 616-17.

In short, our cases, and those of the Supreme Court, have

routinely recognized that “probable cause,” within the mean-

ing of the Fourth Amendment, may be satisfied by proof of

something other than wrongdoing by the subject of the search

or seizure.

Of course, taken to its logical conclusion, the majority

opinion renders the material witness statute entirely superflu-

ous. To arrest and confine an individual pursuant to the mate-

rial 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

10

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 show-

ing of probable cause “including individualized suspicion of criminal

wrongdoing” required. Maj. Op. at 12303. (emphasis in original). This

12340 AL-KIDD v. ASHCROFT

Once the government demonstrated to a neutral magistrate

that it had probable cause to believe al-Kidd had information

material to a criminal proceeding and was likely to run off to

Saudi Arabia, the Whren rule applied with full force, and

nothing in Edmond or any case the majority cites suggests

otherwise.

Third, the Supreme Court’s decision in United States v.

Villamonte-Marquez, 462 U.S. 579 (1983), which the major-

ity 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, cus-

toms agents, acting on a tip about marijuana smuggling,

detained a sailboat pursuant to 19 U.S.C. § 1581(a). That stat-

ute authorized customs agents to “board any vessel at any

argument suggests that the probable cause standard for issuing a warrant

can vary depending on the subjective intention of the officer seeking the

warrant. Not only is there no support in the case law for such a position,

it is directly contradicted by the holding in Whren. 517 U.S. at 811. Fur-

thermore, the majority seems implicitly to recognize that probable cause

can encompass more than the likelihood that the arrestee has engaged in

criminal wrongdoing. Otherwise the majority’s argument reads the neces-

sity of showing probable cause right out of the issuance of a material wit-

ness warrant when the prosecutor “really” wants to obtain evidence for

trial, and thus runs directly against the express language of the Fourth

Amendment. If the prosecutor wants a material witness warrant because

he “really” wants to secure that person’s testimony at trial, according to

the majority, he need not show probable cause that the potential witness

engaged in wrongdoing. However, unless the majority also recognizes that

probable cause in this context means showing a likelihood that the arrestee

has material testimony, and that it will become impracticable to secure his

presence by subponea as required by 18 U.S.C. § 3144, then the majority

would be sanctioning the issuance of an arrest warrant without any proba-

ble cause whatsoever.

11

And we have been wasting much printer’s ink on material witness

statutes which have existed at least since the late Eighteenth Century. See

Bacon, 449 F.2d at 938-41.

AL-KIDD v. ASHCROFT 12341

time and at any place in the United States to examine the ves-

sel’s manifest and other documents.” Id. at 580. While execut-

ing the document inspection, officers smelled marijuana.

They found 5800 pounds of the stuff on board the ship and

arrested the crew. Id. at 583. The crew members were con-

victed for conspiracy to import marijuana. Id. On appeal, the

Fifth Circuit reversed the convictions, holding the detention

was invalid—the officers lacked constitutionally sufficient

individualized suspicion of wrongdoing—and the fruits of the

detention were barred from evidence. Id. at 583-84. The

Supreme Court reversed the decision of the Fifth Circuit and

upheld the convictions. Id. at 584. The Court held that the

special difficulties associated with enforcement of maritime

registration laws justified suspicionless stops and inspections

on waterways. Id. at 591. The Court emphasized the long his-

torical pedigree of § 1581(a) as proof that the Founders did

not believe such intrusions violated the Fourth Amendment.

Id. at 584-85. In a footnote, the Court rejected the crew mem-

bers’ contention that the customs officers’ subjective inten-

tions rendered the stop and inspection pretextual and thus

unlawful:

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 stat-

ute authorizing boarding or inspection of the vessel’s

documentation. This line of reasoning was rejected

in a similar situation in Scott . . . and we again reject

it.

Id. at 584 n.3.

Like the statute at issue in Villamonte-Marquez, some ver-

sion 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

12342 AL-KIDD v. ASHCROFT

to detain material witnesses. See supra note 11. As the

Supreme Court explained, the “ ‘duty to disclose knowledge

of crime . . . is so vital that one known to be innocent may be

detained, in the absence of bail, as a material witness.’ ”

Bacon, 449 F.2d at 939 (quoting Stein, 346 U.S. at 184).

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 gov-

ernment’s general interest in crime control and is sufficient,

al-Kidd concedes, to justify an arrest. Because this govern-

mental 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 neces-

sary 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 Fourth Amendment constitutional right

not to be subjected to an unreasonable seizure, any such right

was certainly not “clearly established” in March 2003. As the

majority notes, for a right to be clearly established there need

not be a case on point, but the violation must be “apparent”

to a reasonable official. Hope v. Pelzer, 536 U.S. 730, 739

(2002). In March 2003, when al-Kidd was arrested on a mate-

rial witness warrant, it would hardly have been “apparent” to

a reasonable official that using a valid material witness war-

rant as a pretext to accomplish other law-enforcement objec-

AL-KIDD v. ASHCROFT 12343

tives was constitutionally impermissible, especially if the

official had read Whren, Robinson, Scott, or Macon.

No court had ever questioned the constitutional validity of

the material witness statute. No court had ever held that the

“programmatic purpose” test applied to searches or seizures

conducted pursuant to a warrant. No court had held that

“probable cause” in the Fourth Amendment meant

only probable cause to believe the subject of the search or sei-

zure had committed criminal wrongdoing. Every pronounce-

ment by the Supreme Court would have suggested that the

pretextual use of a valid warrant was perfectly legal.

Eight months after al-Kidd’s arrest, for the very first time,

and in dicta no less, a court of appeals stated that the pretex-

tual use of material witness warrants was “improper.” United

States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003) (“The dis-

trict court noted (and we agree) that it would be improper for

the government to use § 3144 for other ends, such as the

detention of persons suspected of criminal activity for which

probable cause has not yet been established.”).12 Prior to that,

only one district court had said anything similar. See United

States v. Awadallah, 202 F. Supp. 2d 55, 78 (S.D.N.Y. 2002),

rev’d on other grounds by Awadallah, 349 F.3d 42. In light

of the substantial contrary authority spelling out that an offi-

cer’s subjective intentions do not invalidate an objectively

valid warrant, this solitary district court decision was hardly

sufficient to make it “apparent” to a reasonable official that

12

Obviously, we are not bound by the decision of another circuit, espe-

cially if that part of the decision was dicta. In any event, unlike in our cir-

cuit, dicta in the Second Circuit is not binding authority even in the

Second Circuit. Jiminez v. Walker, 458 F.3d 130, 142-43 (2d Cir. 2006).

It also remains to be said: what did Awadallah mean by the use of “im-

proper”? It could mean anything from pecksniffian distaste to sanctionable

conduct by an officer of the courts, and from harmless error to grounds for

reversal. It seems not even a thin reed upon which to base an assertion it

proclaimed to the nation’s constabulary a “clearly established” constitu-

tional right.

12344 AL-KIDD v. ASHCROFT

the pretextual use of material witness warrants was unconsti-

tutional. See Sorrels v. McKee, 290 F.3d 965, 970-71 (9th Cir.

2002) (holding that two district court decisions were insuffi-

cient to make a right “clearly established”).

The Supreme Court has flatly stated that pretextual

searches and seizures conducted pursuant to a warrant issued

upon objectively reasonable probable cause do not violate the

Fourth Amendment. Nothing in the majority opinion provides

any justification for departing from this rule. Attorney Gen-

eral Ashcroft is entitled to qualified immunity.

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 mis-

representations or omissions. Of course, this claim raises

totally different constitutional issues than that based on pre-

text.

It is not disputed that al-Kidd has a clearly established con-

stitutional 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 Ash-

croft 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 ha

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