# Al-Kidd v. Ashcroft

> Court of Appeals for the Ninth Circuit · September 4, 2009

URL: https://www.frixlaw.com/law-library/cases/3065072

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** September 4, 2009
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3065072

## How later opinions describe it (automated extraction)

- holding that two district court decisions were insuffi- cient to make a right “clearly established”
- holding that a prosecutor’s decision not to call a wit- ness at trial was protected by absolute immunity

## Opinion text

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3065072. Public record. Not legal advice.