AL-KIDD v. Ashcroft

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABDULLAH AL-KIDD,  No. 06-36059

Plaintiff-Appellee, D.C. No.

v. CV-05-00093-EJL

JOHN ASHCROFT, Attorney General, District of Idaho,

Defendant-Appellant. Boise

 ORDER DENYING

PETITION FOR

REHEARING

EN BANC;

CONCURRENCE

IN THE ORDER;

DISSENTS TO

 THE ORDER

Filed March 18, 2010

Before: David R. Thompson, Carlos T. Bea and

Milan D. Smith, Jr., Circuit Judges.

Order;

Concurrence by Judge Milan D. Smith, Jr.;

Dissent by Judge O’Scannlain;

Dissent by Judge Gould

ORDER

Judge M. Smith voted to deny the petition for rehearing en

banc, and Judge Thompson so recommended. Judge Bea

voted to grant the petition for rehearing en banc.

4427

4428 AL-KIDD v. ASHCROFT

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to rehear the mat-

ter en banc, and the matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc con-

sideration. Fed. R. App. P. 35. Judge Bybee was recused in

this matter.

The petition for rehearing en banc is DENIED.

M. SMITH, Circuit Judge, concurring in the denial of rehear-

ing en banc:

I concur in the court’s decision not to rehear this case en

banc, and write to respond to the dissents from that decision.

In March 2005, al-Kidd brought suit in the District of Idaho

against former United States Attorney General John Ashcroft,

the United States, two FBI agents, and a number of other gov-

ernment agencies and officers in their official capacities. The

suit sought damages under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

for violations of al-Kidd’s rights under the Fourth and Fifth

Amendments to the Constitution, and for a direct violation of

18 U.S.C. § 3144. Each of the defendants moved to dismiss

under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6).

The district court first denied the 12(b)(2) motion, holding

that al-Kidd had properly alleged facts sufficient to establish

personal jurisdiction over the parties in Idaho. Next, the dis-

trict court denied the 12(b)(6) motion, rejecting the defen-

dants’ claims of absolute and qualified immunity. Only

Ashcroft appealed the district court’s rulings on the motions.

In ruling on Ashcroft’s interlocutory appeal of the district

court’s 12(b)(6) ruling, we are required to accept all allega-

tions of material fact contained in al-Kidd’s complaint as true

and to construe those allegations in the light most favorable

to al-Kidd. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

AL-KIDD v. ASHCROFT 4429

2000). “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

. . . .” al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009).

All the parties to this action have approached it as a pure

law enforcement matter. Ashcroft has not raised issues of

national security or other exigencies at any point in this litiga-

tion. Id. at 973.

The facts alleged in al-Kidd’s complaint are chilling, and

serve as a cautionary tale to law-abiding citizens of the United

States who fear the excesses of a powerful national govern-

ment, as did many members of the Founding Generation. Al-

Kidd, born Lavoni T. Kidd, is a United States citizen, born in

Wichita, Kansas, and raised in Seattle, Washington. He gradu-

ated from the University of Idaho, where he was a highly

regarded running back on the university’s football team. He

was married and had two young children.

While at the university, al-Kidd converted to Islam and

changed his name to Abdullah al-Kidd. In the spring and sum-

mer of 2002, al-Kidd became a target of FBI surveillance con-

ducted as part of a broad anti-terrorism investigation, aimed

at Arab and Muslim men.1 Al-Kidd cooperated with the FBI

on several occasions when FBI agents asked to interview him.

Previous to this time, Ashcroft and others operating at his

direction, or in concert with him, had decided to undertake a

novel use of 18 U.S.C. § 3144, the material witness statute.

Specifically,

1. At a press briefing, Ashcroft stated that the government

was taking steps “to enhance [its] ability to protect the

United States from the threat of terrorist aliens” and that

1

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

4430 AL-KIDD v. ASHCROFT

“[a]ggressive detention of lawbreakers and material wit-

nesses is vital to preventing, disrupting or delaying new

attacks.”

2. In DOJ memoranda, Ashcroft stressed the need “to use

. . . aggressive arrest and detention tactics in the war on

terror” and to use “every available law enforcement tool”

to arrest persons who “participate in, or lend support to,

terrorist activities.”

3. A DOJ document entitled “Maintaining Custody of Ter-

rorism Suspects“ stated that “[i]f a person is legally pres-

ent in this country, the person may be held only if federal

or local law enforcement is pursuing criminal charges

against him or pursuant to a material witness warrant.”

4. Michael Chertoff, who was head of the DOJ’s Criminal

Division in the years immediately following the 9/11

attacks, stated of the material witness statute, “[i]t’s an

important investigative 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.”

5. Then White House Counsel, Alberto Gonzales, stated

that: “In any case where it appears that a U.S. citizen cap-

tured within the United States may be an al Qaeda opera-

tive and thus may qualify as an enemy combatant,

information on the individual is developed and numerous

options are considered by the various relative agencies

(the Department of Defense, CIA and DOJ), including the

potential for a criminal prosecution, detention as a mate-

rial witness, and detention as an enemy combatant.”

(emphasis added).

What apparently interested the FBI in al-Kidd was his

friendship with one Sami Omar Al-Hussayen, a Saudi

AL-KIDD v. ASHCROFT 4431

national and a computer science student at the university, who

was the webmaster of an Islamic proselyting website dedi-

cated to, among other things, “[s]pread[ing] the correct

knowledge of Islam; [and] [w]iden[ing] the horizons and

understanding . . . among Muslims concerning different

Islamic contemporary issues.”

In the spring of 2003, al-Kidd planned to fly to Saudi Ara-

bia to study Arabic and Islamic law on a scholarship at a

Saudi university. Knowing of his travel plans from their inter-

views with al-Kidd, and apparently implementing Ashcroft’s

plan to aggressively use the material witness statute to detain

“material witnesses,” two FBI agents swore out an affidavit

that contained multiple falsehoods to secure a material wit-

ness warrant against al-Kidd, allegedly so he would be avail-

able to testify against Al-Hussayen (who had been indicted

one month previously for visa fraud and making false state-

ments to U.S. officials).

On March 16, 2003, al-Kidd, bearing a round-trip ticket to

Saudi Arabia, arrived at Dulles International Airport in Vir-

ginia. While al-Kidd was at the ticket counter, FBI agents

handcuffed him, perp-walked him through the airport, and

drove him to a police station, where he was placed in a hold-

ing cell. After being detained and questioned there for hours,

al-Kidd was transferred to a detention center in Alexandria,

Virginia.

For the next sixteen days, al-Kidd was detained in three dif-

ferent detention centers, one in Alexandria, one in Oklahoma,

and one in Idaho. He was housed in high-security units within

these facilities, which were the same units used to detain ter-

rorists, and other persons charged with, or convicted of, other

serious crimes. While at the Alexandria facility, al-Kidd was

required to remain in a small cell where he ate his meals,

except for one or two hours a day. He was strip-searched,

denied visits by family, and denied requests to shower. Each

time he was transferred to a new facility, he was shackled and

4432 AL-KIDD v. ASHCROFT

accompanied by other prisoners who had been charged with,

or convicted of, serious crimes. After sixteen days, “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.” al-Kidd, 580 F.3d at

953.

Not too long after al-Kidd’s arrest and detention, in con-

gressional testimony regarding the government’s efforts to

fight terrorism, FBI Director Robert Mueller boasted that the

government had charged over 200 “suspected terrorists” with

crimes. Mueller then offered the names of five individuals as

examples of the government’s recent successes. Four of those

persons had been criminally charged with terrorism-related

offenses; the other was al-Kidd.

“After almost a year under these conditions, the court per-

mitted al-Kidd to secure his own residence in Las Vegas, 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.2 In July 2004, al-Kidd was fired from his job.

He alleges he was terminated when he was denied a security

clearance because of his arrest. He is now separated from his

wife, and has been unable to find steady employment. He was

also deprived of his chance to study in Saudi Arabia on schol-

arship.” Id. at 953-54 (emphasis added).

2

“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. 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.” Id. at 953 n.4 (internal

citation omitted).

AL-KIDD v. ASHCROFT 4433

Al-Kidd was arrested more than a year before the Al-

Hussayen trial began. In their interviews with al-Kidd, the

FBI never suggested, let alone demanded, that al-Kidd appear

as a witness in the Al-Hussayen trial. While in custody, al-

Kidd was repeatedly questioned about matters unrelated to

Al-Hussayen’s alleged visa violations or false statements, but

was never given a Miranda warning. “Al-Kidd was never cal-

led as a witness in the Al-Hussayen trial or in any other crimi-

nal proceeding” despite his assurances that he would be

willing to be a witness. Id. at 953-54, 963 (emphasis added).

Importantly, al-Kidd was never charged with the commission

of any crime, even though Mueller had boasted to Congress

that the government had at that point in time charged over 200

“suspected terrorists” with crimes, and named al-Kidd indi-

vidually, as well as four other persons who had been crimi-

nally charged with terrorism-related offenses, as evidence of

the government’s recent successes.

Accepting al-Kidd’s factual allegations as true and drawing

all inferences in his favor, we held that al-Kidd alleged suffi-

cient facts in his complaint to state a claim against Ashcroft

for creating, authorizing, implementing, and supervising a

policy that violated al-Kidd’s Fourth Amendment right

against unreasonable searches and seizures. In doing so, we

determined Ashcroft was not entitled to absolute or qualified

immunity because he served an investigative function in con-

nection with the challenged policy, which violated al-Kidd’s

clearly established constitutional rights. We also held that al-

Kidd alleged sufficient facts in his complaint to state a claim

that Ashcroft directly violated the material witness statute by

his own personal conduct. Accordingly, we affirmed the dis-

trict court’s decision, allowing al-Kidd’s case to proceed

against Ashcroft beyond the pleading stage.

I

Contrary to what our dissenting colleague suggests, we did

not “effectively declar[e] the material witness statute uncon-

4434 AL-KIDD v. ASHCROFT

stitutional.” O’Scannlain Dissent at 4444. Judge O’Scannlain

accuses the majority of holding that the Constitution “invali-

dates arrests authorized by the statute,” and therefore, the stat-

ute is unconstitutional to the extent it authorizes arrests such

as the one in this case. Id. at 4444 n.4 (emphasis added). The

material witness statute, however, does not authorize arrests

like the one in this case.

Here, the statute was not used to secure the testimony of a

material witness, but rather to detain and interrogate a crimi-

nal suspect. Indeed, al-Kidd contends that the federal govern-

ment enforced a policy sanctioning the use of the

constitutionally-sound material witness statute for an end

entirely outside the scope of the statute—criminal investiga-

tion. Therefore, we did not address the validity of the material

witness statute, and we unequivocally stated that the decision

“does nothing to curb the use of the material witness statute

for its stated purpose.” al-Kidd, 580 F.3d at 970 (emphasis

added). We treated “only the misuse of the statute,” and con-

cluded that when the statute” is not being used for its stated

purpose, but instead for the purpose of criminal investiga-

tion,” the statute cannot be the basis for authorizing the gov-

ernment’s conduct. Id.

II

Judge O’Scannlain also accuses the majority of “distort[-

ing] the bedrock Fourth Amendment principle that an offi-

cial’s subjective reasons for making an arrest are

constitutionally irrelevant,” in contravention of Whren v.

United States, 517 U.S. 806 (1996). O’Scannlain Dissent at

4445. In Whren, the Supreme Court held that an individual

officer’s subjective intentions are irrelevant to the validity of

a traffic stop under the Fourth Amendment. Id. at 810-13. But

al-Kidd’s case does not involve an ordinary traffic stop.

Whren stands for the proposition that “ ‘[s]ubjective inten-

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

AL-KIDD v. ASHCROFT 4435

ment analysis.’ ” Id. at 813 (emphasis added). But outside that

context, “programmatic purposes may be relevant to the

validity of Fourth Amendment intrusions taken pursuant to a

general scheme without individualized suspicion.” City of

Indianapolis v. Edmond, 531 U.S. 32, 45-46 (2000) (emphasis

added).

Unlike the lawsuit in Whren, al-Kidd’s suit does not

involve a typical application of Fourth Amendment principles.

See Whren, 517 U.S. at 819. Al-Kidd claims that Ashcroft

implemented a policy or program sanctioning the arrest and

detention of individuals suspected of terrorism under the guise

of the material witness statute. Therefore, al-Kidd’s claims

against Ashcroft do not hinge on one officer’s basis for proba-

ble cause that al-Kidd committed a crime, but rather on the

government’s “intrusions undertaken pursuant to a general

scheme without individualized suspicion.” Edmond, 531 U.S.

at 45-46. For these reasons, Whren does not furnish the appro-

priate Fourth Amendment analytical framework for reviewing

al-Kidd’s claims, and as a result, we properly looked to

Edmond and related cases that have employed a programmatic

purpose test to gauge the constitutionality of a program or

policy.

Our colleague contends that the programmatic purpose test

is applicable only in cases involving warrantless searches. But

here, accepting al-Kidd’s allegations as true, this case does

involve a warrantless search and seizure, as federal agents did

not have a warrant to arrest al-Kidd for his commission of

terrorism-related crimes.3 Therefore, the programmatic pur-

3

Judge O’Scannlain contends there was a warrant in this case, as federal

agents possessed a warrant pursuant to the material witness statute. But a

warrant is not a carte blanche for officers to do anything they desire under

the auspices of the warrant. See Malley v. Briggs, 475 U.S. 335, 345-46

(1986) (holding that an officer’s act of applying for a warrant per se does

not entitle the officer to qualified immunity). A warrant cannot pass con-

stitutional muster if the scope of the related search or seizure exceeds that

4436 AL-KIDD v. ASHCROFT

pose test was appropriate in light of the allegations in this par-

ticular case. Certainly, there are “challenges inherent in a

purpose inquiry,” but nonetheless, “courts routinely engage in

this enterprise in many areas of constitutional jurisprudence as

a means of sifting abusive government from that which is

lawful.” Id. at 46-47.

III

Judge O’Scannlain also challenges the majority’s holding

that al-Kidd’s Fourth Amendment right at issue in this case

was clearly established in 2003. The doctrine of qualified

immunity seeks to ensure that governmental officials have

“fair notice” that their specific actions violate a constitutional

right. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002). “It is not

necessary that the alleged acts have been previously held

unconstitutional, as long as the unlawfulness [of the defen-

dants’ actions] was apparent in light of preexisting law.”

Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995). “[O]fficials

can still be on notice that their conduct violates established

law even in novel factual circumstances.” Hope, 536 U.S. at

741. In fact, the absence of cases evaluating whether certain

policies are constitutional “may be due more to the obvious-

ness of the illegality than the novelty of the legal issue.” Sor-

rels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002). And where

the courts do not have the benefit of factually analogous case

law to assist with illuminating the parameters of the constitu-

tional right, “general statements of the law” and “general con-

stitutional rule[s] already identified in the decisional law” can

adequately furnish the required fair warning to government

permitted by the terms of the validly issued warrant. See Bivens, 403 U.S.

at 394-95 n.7. Here, al-Kidd’s complaint alleged that the issued material

witness warrant was executed to arrest al-Kidd for being a terrorist sus-

pect, not as a material witness. Therefore, the warrant upon which Judge

O’Scannlain bases his argument cannot reach the arrest of al-Kidd for

criminal law violations.

AL-KIDD v. ASHCROFT 4437

officials about the constitutionality of their conduct. United

States v. Lanier, 520 U.S. 259, 271 (1997).

Accepting the factual allegations in al-Kidd’s complaint as

true, and drawing all inferences in his favor, we determined

that in light of the well-established Fourth Amendment princi-

ples in place at the time of al-Kidd’s arrest, Ashcroft had a

fair warning that the policy he authorized and encouraged was

unconstitutional. Under Beck v. Ohio, Ashcroft knew that an

arrest of a criminal suspect is constitutional only if at the time

of the arrest, there is probable cause that the arrestee has com-

mitted or is committing the offense justifying the arrest. 379

U.S. 89, 91 (1964). Under Edmond, Ashcroft was on notice

that “programmatic purposes may be relevant to the validity

of Fourth Amendment intrusions undertaken pursuant to a

general scheme without individualized suspicion,” and that a

program whose primary purpose is indistinguishable from

“the general interest in crime control” violates the Fourth

Amendment. 531 U.S. at 45-48. Because Ashcroft’s alleged

conduct was “so patently violative” of such well-established

Fourth Amendment principles, “closely analogous pre-

existing case law [was] not required to show that the law

[was] clearly established.” Mendoza v. Block, 27 F.3d 1357,

1361 (9th Cir. 1994) (internal quotation marks omitted).

Only after we considered those well-established Fourth

Amendment principles did we address a timely district court

decision featuring a factual scenario closely analogous to that

faced by al-Kidd. In United States v. Awadallah, Awadallah,

like al-Kidd, was detained as a “material witness” for over

two weeks in high-security prisons across the country, where

he was kept in solitary confinement, shackled, strip-searched,

and denied family contact. 202 F. Supp. 2d 55, 58 (S.D.N.Y.

2002). We recognized that the district court’s statements in

Awadallah were merely dicta, and that ultimately Awadallah

was charged with criminal offenses. Nevertheless, the facts at

issue in Awadallah were so closely analogous to those in al-

Kidd that we deemed them relevant to the discussion, espe-

4438 AL-KIDD v. ASHCROFT

cially in light of our court’s admonition to consider all rele-

vant decisional law. Drummond v. City of Anaheim, 343 F.3d

1052, 1060 (9th Cir. 2003) (“[I]n the absence of binding pre-

cedent, a court should look to whatever decisional law is

available to ascertain whether the law is clearly established

for qualified immunity purposes, including decisions of . . .

district courts.” (internal quotation marks omitted)); see also

Sorrels, 290 F.3d at 971 (“[U]npublished decisions of district

courts may inform [a court’s] qualified immunity analysis.”).

Further, if anyone in the United States is presumptively on

notice of cases involving federal law enforcement officers and

the DOJ, it is the nation’s top law enforcement officer.

We did not stake the existence of the clearly established

right in this case on the district court’s statements in Awadal-

lah. Rather, the district court’s comments in Awadallah were

unsurprising and entirely consistent with the long-established

Fourth Amendment principles upon which we principally

relied for our holding. Thus, we properly included a reference

to Awadallah in considering whether al-Kidd had a clearly

established right in March 2003.

IV

Lastly, Judge O’Scannlain misreads the majority’s decision

as holding that a cabinet-level official may be personally lia-

ble for actions taken by his subordinate alone. To the con-

trary, the holding fully complies with the Court’s instruction

in Ashcroft v. Iqbal, that “a plaintiff must plead that each

Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” 129 S. Ct.

1937, 1948 (2009). Al-Kidd was not required to allege that

Ashcroft actually authorized the specific warrant for al-Kidd,

or any alleged misrepresentations or omissions contained

therein. Under Iqbal, al-Kidd had to “plead sufficient factual

matter to show that [Ashcroft] adopted and implemented the

detention policies at issue” not for some neutral, lawful reason

but for an unlawful purpose. Id. at 1948-49.

AL-KIDD v. ASHCROFT 4439

The complaint claims Ashcroft created, adopted and imple-

mented a policy of using the material witness statute for an

unlawful end. The complaint contains numerous factual alle-

gations supporting that theory, specifically referring to Ash-

croft’s liability for his own personal involvement with

creating, implementing, and enforcing the alleged policy at

issue in this case. The complaint also contains statements

made by Ashcroft himself in support of such a policy, includ-

ing his statements that law enforcement was to use “every

available law enforcement tool” to arrest persons “who partic-

ipate in, or lend support to, terrorist activities,” that it was the

government’s policy “to use . . . aggressive arrest and deten-

tion tactics in the war on terror,” and that “[a]ggressive deten-

tion of lawbreakers and material witnesses [was] vital to

preventing, disrupting or delaying new attacks.” Thus, al-

Kidd’s § 3144 claim is not based upon allegations that Ash-

croft simply knew or should have known that federal agents

were actually violating or had the potential to violate the

material witness statute in connection with the alleged policy;

rather the complaint is based upon allegations of Ashcroft’s

own misconduct in sanctioning and promulgating a nation-

wide policy that systematically authorized the misuse of the

material witness statute to arrest and detain suspected terror-

ists for whom the government had insufficient evidence of

any wrongdoing.

Al-Kidd’s case came before us in a Rule 12(b)(6) posture,

and as such, we have an obligation to assume the allegations

in al-Kidd’s complaint are true, whether discovery would bear

them out or not. See Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 556 (2007) (“[A] well-pleaded complaint may proceed

even if it strikes a savvy judge that actual proof of the facts

alleged is improbable[.]”). Accepting al-Kidd’s factual allega-

tions as true, we concluded that Ashcroft created, authorized,

supervised, and enforced a policy that used the material wit-

ness statute in contravention of the Fourth Amendment, and

that Ashcroft directly violated the material witness statute by

his own personal involvement with the challenged policy.

4440 AL-KIDD v. ASHCROFT

However well-motivated Ashcroft’s intentions may have

been in creating, authorizing, supervising, and enforcing the

misuse of the material witness statute in contravention of the

Fourth Amendment, his motivation does not presumptively

immunize the policy, or himself, the nation’s chief law

enforcement officer, and others implementing and executing

it, from complying with the rule of law. “No man in this coun-

try is so high that he is above the law. No officer of the law

may set that law at defiance with impunity. All the officers of

the government from the highest to the lowest, are creatures

of the law, and are bound to obey it.” United States v. Lee,

106 U.S. 196, 220 (1882).

V

Finally, my dissenting colleagues express concerns that the

court’s decision in this case will dissuade qualified individu-

als from seeking the position of Attorney General and exercis-

ing the full range of their authority if chosen to fill that office.

While I acknowledge their concerns, I note that cabinet offi-

cers are regularly sued in the courts of the United States, and

that the government defends them both individually and in

their official capacities, as necessary. I understand that 100%

of Ashcroft’s attorney fees incurred to date in this case have

been paid by the United States. See 28 C.F.R. § 50.15(a), (b).

Moreover, in the event Ashcroft is ultimately held personally

liable in this lawsuit for his actions against al-Kidd, he will

almost certainly be eligible to claim indemnification from the

United States. See 28 C.F.R. § 50.15(c).

The truth is that there are legions of highly qualified attor-

neys who would gladly abandon almost any other position for

the opportunity to serve as Attorney General of the United

States. But it is critically important that whoever serves in that

position be dedicated to the rule of law, and to upholding and

defending the Constitution of the United States. Mindful that

some in high office can be guilty of excessive zeal, former

AL-KIDD v. ASHCROFT 4441

Justice Brandeis, in his famous dissent in Olmstead v. United

States, stated:

Experience should teach us to be most on our guard

to protect liberty when the government’s purposes

are beneficent. Men born to freedom are naturally

alert to repel invasion of their liberty by evil-minded

rulers. The greatest dangers to liberty lurk in insidi-

ous encroachment by men of zeal, well-meaning but

without understanding.

277 U.S. 438, 572-73 (1928 ) (Brandeis, J., dissenting).

The majority stands by its decision in this case, firm in the

belief that it complies fully with controlling Supreme Court

case law and the Constitution of the United States.

O’SCANNLAIN, Circuit Judge, joined by KOZINSKI, Chief

Judge, and KLEINFELD, GOULD, TALLMAN, CALLA-

HAN, BEA and IKUTA, Circuit Judges, dissenting from the

denial of rehearing en banc:

The majority holds that a former Attorney General of the

United States may be personally liable for promulgating a

policy under which his subordinates took actions expressly

authorized by law. Judge Bea’s dissent from the panel deci-

sion clearly and ably describes the several legal errors the

panel makes in reaching this startling conclusion. See al-Kidd

v. Ashcroft, 580 F.3d 949, 981-1000 (9th Cir. 2009) (Bea, J.,

dissenting). For my part, I write to express my concern at the

scope of this decision. First, the majority holds that al-Kidd’s

detention under a valid material witness warrant violated his

clearly established constitutional rights—a conclusion that

effectively declares the material witness statute unconstitu-

tional as applied to al-Kidd. Second, the majority holds that

a cabinet-level official may be personally liable for actions

4442 AL-KIDD v. ASHCROFT

taken by his subordinates alone. Because of the gratuitous

damage this decision inflicts upon orderly federal law

enforcement, I must respectfully dissent from our refusal to

rehear this case en banc.

I

On March 14, 2003, federal prosecutors sought a material

witness warrant1 to arrest Abdullah al-Kidd in connection

with their prosecution of Sami Omar Al-Hussayen, whom a

federal grand jury had indicted for visa fraud and making

false statements to U.S. officials. According to a supporting

affidavit submitted by prosecutors, al-Kidd had contacts with

Al-Hussayen’s suspected Jihadist organization, had received

over $20,000 from Al-Hussayen, and, after returning from a

trip to Yemen, had met with Al-Hussayen’s associates. The

affidavit also stated that al-Kidd had a plane ticket to fly to

Saudi Arabia two days later, and that if he left the country, the

government would “be unable to secure his presence at trial

via subpoena.” Based on this affidavit, a federal magistrate

judge issued the warrant authorizing al-Kidd’s arrest.

On March 16, federal agents arrested al-Kidd at the ticket

counter at Dulles International Airport, outside Washington,

D.C. After his arrest, the government detained al-Kidd for a

1

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

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

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

that it may become impracticable to secure the presence of the

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

person and treat the person in accordance with the provisions of

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

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

testimony of such witness can adequately be secured by 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.

AL-KIDD v. ASHCROFT 4443

total of sixteen days at several different federal facilities

before releasing him on conditions that he surrender his pass-

port, live with his wife at his in-laws’ home in Nevada, limit

his travel to Nevada and three other states, and regularly meet

with a probation officer. The government did not ultimately

call him to testify at Al-Hussayen’s trial, and after the trial

concluded, a judge granted al-Kidd’s request that the restric-

tions on his travel be lifted.

Two years later, al-Kidd filed this lawsuit in the U.S. Dis-

trict Court for the District of Idaho. His first amended com-

plaint alleges that Ashcroft violated the Fourth and Fifth

Amendments and the federal material witness statute by pro-

mulgating a policy directing federal prosecutors to seek mate-

rial witness warrants to detain individuals whom they

believed, but could not prove, were involved in criminal

activities. After the district court denied Ashcroft’s motion to

dismiss al-Kidd’s complaint, Ashcroft appealed to this court.2

The panel majority then affirmed the pertinent part of the dis-

trict court’s ruling in an extraordinarily broad and unprece-

dented decision.3

II

By permitting al-Kidd’s suit to proceed, the majority com-

mits two distinct but equally troubling legal errors, each of

which will have far-reaching implications for how govern-

ment officials perform their duties. First, the majority strips

Ashcroft of his official immunity, holding that it was clearly

established at the time of al-Kidd’s arrest that prosecutors vio-

2

Al-Kidd’s complaint also names several other federal officers and

agencies as defendants. None of the other defendants appealed the district

court’s decision denying qualified immunity, and therefore al-Kidd’s

claims against them were not before the panel.

3

In a portion of its opinion in which Judge Bea concurred, the majority

reversed the district court’s determination that Ashcroft was not immune

from al-Kidd’s claim arising from the conditions of al-Kidd’s confine-

ment. See al-Kidd, 580 F.3d at 977-79.

4444 AL-KIDD v. ASHCROFT

late the Fourth Amendment when they obtain and execute a

material witness warrant as a pretext for other law-

enforcement objectives. Second, by holding that Ashcroft

may be personally liable if his subordinates swore false affi-

davits to obtain the warrant authorizing al-Kidd’s arrest, the

majority stretches beyond recognition the rule that a govern-

ment official is liable only when he personally violates the

constitution. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009).

A

1

The majority begins by effectively declaring the material

witness statute unconstitutional, at least as applied to al-Kidd.

But al-Kidd does not appear to contest that he met the statu-

tory requirements for arrest as a material witness. See al-Kidd,

580 F.3d at 957. Nor does he contend that the material wit-

ness statute is facially unconstitutional. Id. at 966. The major-

ity nevertheless holds that because prosecutors used a material

witness warrant to arrest al-Kidd as a pretext to a criminal

investigation, his detention violated the Fourth Amendment.

This conclusion—that the material witness statute authorized

al-Kidd’s arrest while the Fourth Amendment forbade it—can

only mean that the material witness statute itself is unconstitu-

tional in this circumstance.4 With respect, such conclusion is

preposterous.

4

I acknowledge that the majority does not say that it is declaring the

material witness statute unconstitutional. Nevertheless, that is what it does.

The majority acknowledges that individuals arrested under the allegedly

unconstitutional policy “met the facial statutory requirements of [the mate-

rial witness statute].” Al-Kidd, 580 F.3d at 957. Despite this, in a section

of its opinion entitled “Al-Kidd’s Fourth Amendment Rights Were Violat-

ed,” id. at 965, it concludes that al-Kidd’s arrest was impermissible. By

concluding that the Constitution invalidates arrests authorized by the stat-

ute, the majority must conclude that the statute is unconstitutional to the

extent it authorizes arrests such as the one in this case—put another way,

that the statute is unconstitutional as applied to al-Kidd.

AL-KIDD v. ASHCROFT 4445

The federal material witness statute has existed since 1789,

Bacon v. United States, 449 F.2d 933, 938 (9th Cir. 1971),

every state has adopted a version of the statute, id. at 939, and

(at least until now), “[t]he constitutionality of th[e] statute

apparently has never been doubted,” Barry v. United States ex

rel Cunningham, 279 U.S. 597, 617 (1929). The majority’s

decision to invalidate a statute passed by the First Congress

and retained by every subsequent Congress should have by

itself prompted us to rehear this case.

The majority does not stop at declaring a 200-year-old stat-

ute unconstitutional, however. It also distorts the bedrock

Fourth Amendment principle that an official’s subjective rea-

sons for making an arrest are constitutionally irrelevant. The

majority holds that if prosecutors used the material witness

warrant as a pretext to arrest al-Kidd “with the ulterior and

. . . unconstitutional purpose of investigating or preemptively

detaining” him, they violated his Fourth Amendment rights.

Al-Kidd, 580 F.3d at 957 (emphasis added). This holding is

impossible to square with Supreme Court precedent, which

has “flatly dismissed the idea that an ulterior motive might

serve to strip the agents of their legal justification.” Whren v.

United States, 517 U.S. 806, 812 (1996) (emphasis added).

Given that al-Kidd has conceded that he met the facial

requirements for arrest under the material witness statute, the

prosecutor’s purpose for arresting him is immaterial to the

Fourth Amendment analysis because “[s]ubjective intent

alone . . . does not make otherwise lawful conduct illegal or

unconstitutional.” Scott v. United States, 436 U.S. 128, 136-

37 (1978); see also Devenpeck v. Alford, 543 U.S. 146, 153

(2004) (“[T]he Fourth Amendment’s concern with ‘reason-

ableness’ allows certain actions to be taken in certain circum-

stances, whatever the subjective intent [of the government

official taking the action].” (internal quotation marks omit-

ted)).

The majority, unfortunately, disagrees. Although it

acknowledges that an officer’s subjective intentions are irrele-

4446 AL-KIDD v. ASHCROFT

vant to “ordinary, probable-cause Fourth Amendment analy-

sis,” it holds that because al-Kidd’s arrest was not supported

by probable cause that al-Kidd had committed a crime, his

detention was constitutionally infirm. Al-Kidd, 580 F.3d at

966. To reach this novel result, the majority relies on the

Supreme Court’s “programmatic purpose” test. Id. at 968-69.

Contrary to the majority’s analysis, that test is totally inappli-

cable here. The Supreme Court uses the programmatic pur-

pose test to evaluate the constitutionality of warrantless

searches. See Indianapolis v. Edmond, 531 U.S. 32 (2000).

Because al-Kidd was arrested under a valid warrant, however,

the programmatic purpose test, and its concern for the purpose

of an arrest, is entirely inapplicable here. Thus, the majority

concludes that the material witness warrant authorizing al-

Kidd’s arrest is unconstitutional only after examining the sub-

jective reasons prosecutors sought the warrant, something the

Supreme Court has repeatedly forbidden us to do. This error

alone warranted en banc review.

2

The majority then compounds its error by holding that the

right to be free from a detention under a pretextual material

witness warrant was clearly established at the time of al-

Kidd’s arrest. The majority claims this result is compelled by

three sources: the clearly established definition of probable

cause, al-Kidd, 580 F.3d at 971, “the history and purposes of

the Fourth Amendment,” id., and a footnote in a district court

opinion, id. at 972 (quoting United States v. Awadallah, 202

F. Supp. 2d 55, 77 n.28 (S.D.N.Y. 2002), rev’d on other

grounds, 349 F.3d 42 (2d Cir. 2003)).

The majority’s reliance on the first two sources proves too

much, of course. All government officials are presumed to be

aware of the definition of probable cause and the history and

purposes of the Fourth Amendment. If this is sufficient clearly

to establish how the Fourth Amendment applies in a particular

setting, then how can any Fourth Amendment rule ever not be

AL-KIDD v. ASHCROFT 4447

“clearly established”? See Anderson v. Creighton, 483 U.S.

635, 639-40 (1987).

The majority’s reliance on Awadallah is possibly even

more troubling. The majority’s assertion that three sentences

of dicta in a footnote to a subsequently reversed district court

opinion clearly establish a right that the majority expended

nearly three-thousand words describing is truly astonishing.5

Under the majority’s reasoning, our government’s officials

may find themselves subject to suits for decisions that they

did not—and, even if they spent their time doing nothing but

reading reports of federal judicial decisions, could not—know

contravened the Constitution. Indeed, the lack of support for

the majority’s conclusion is so glaring that even the editorial

board of a distinguished newspaper remarked that “officials

should not have to fear personal lawsuits for performing their

duties in good faith and in violation of no established legal

precedent.” Editorial, Suing Mr. Ashcroft: Why a Court’s

Decision to Allow a Personal Lawsuit Against the Former

Attorney General Should Not Stand, Wash. Post, Sept. 12,

2009, at A16 (emphasis added).

Thus, the majority has held that a former Attorney General

might suffer personal liability solely for acting within the

bounds of federal law. One shudders at the thought that this

decision might deter the incumbent and future Attorneys Gen-

eral from exercising the full range of their lawful authority to

protect the security of the United States.

B

The majority goes further still, however, by holding that

Ashcroft may be held personally liable to al-Kidd if his subor-

dinates provided false testimony in support of their applica-

5

In addition, the Chief Judge of the Southern District of New York has

expressly declined to follow Awadallah. See In re Application of U.S. for

a Material Witness Warrant, 213 F. Supp. 2d 287, 288 (S.D.N.Y. 2002).

4448 AL-KIDD v. ASHCROFT

tion for a material witness warrant. Al-Kidd, 580 F.3d at 975-

76. It cannot be contested that al-Kidd has a clearly estab-

lished right to be free of an arrest based on fraudulent testi-

mony. See Franks v. Delaware, 438 U.S. 154, 164-65 (1978).

Al-Kidd does not allege that Ashcroft personally swore any

false testimony, however. Rather, it was Ashcroft’s subordi-

nates who provided the testimony that al-Kidd alleges was

false. In light of Iqbal’s holding that “each Government offi-

cial, his or her title notwithstanding, is only liable for his or

her own misconduct,” 129 S. Ct. at 1949, al-Kidd’s complaint

fails to allege facts sufficient to establish a cause of action

against Ashcroft.

As Judge Bea explains in detail, al-Kidd does not allege

that Ashcroft encouraged federal prosecutors to lie in applica-

tions for material witness warrants. Al-Kidd, 580 F.3d at 992-

93 (Bea, J., dissenting). Al-Kidd does not claim that Ashcroft

even knew that his subordinates might be submitting false

affidavits. At most, al-Kidd claims that Ashcroft’s policies

encouraged his subordinates to use material witness warrants

to detain individuals within the maximum extent authorized

by law. Id. at 993. By permitting al-Kidd’s claim that Ash-

croft has violated Franks to proceed, the majority permits al-

Kidd to seek damages from Ashcroft for his subordinates’

alleged misconduct, a result indisputably at odds with Iqbal.

See 129 S. Ct. at 1949.

III

After this decision, a prosecutor who executes a perfectly

valid material witness warrant must worry that he will find

himself sued and liable in damages for violating the Fourth

Amendment. Moreover, any cabinet-level official must worry

that he might be personally liable if his subordinates take an

action perfectly consistent with then-existing federal law.6

6

The possibility the federal government might reimburse Ashcroft for

any judgment against him hardly removes the likelihood that this decision

AL-KIDD v. ASHCROFT 4449

Because these results are contrary to both logic and law, I

respectfully dissent from our unfortunate rejection of the

opportunity to correct these errors by rehearing this case en

banc.

GOULD, Circuit Judge, with whom KOZINSKI, Chief Judge,

and O’SCANNLAIN, KLEINFELD, CALLAHAN, BEA, and

IKUTA, Circuit Judges, join, dissenting from the denial of

rehearing en banc:

I agree with Judge Bea’s persuasive dissent from the major-

ity opinion and agree with Judge O’Scannlain’s persuasive

dissent from denial of rehearing en banc. I add this pragmatic

concern: If an Attorney General of the United States can be

held liable and subject to monetary damages primarily

because of actions of law enforcement subordinates, who

allegedly gained and executed a material witness warrant for

contrived purposes, I fear that it will become more difficult to

persuade a person of great talent and integrity to leave his or

her current occupation in order to hold the nation’s highest

law office. The panel majority’s decision in effect says “good

bye” to many talented persons who would otherwise be will-

ing to serve as Attorney General with great distinction and

attendant benefit to our country.

might deter the current or future Attorneys General from carrying out their

duties. Anderson, 483 U.S. at 641 n.3 (noting that 28 C.F.R. § 50.15(c)

“permit[s] reimbursement of Department of Justice employees when the

Attorney General finds reimbursement appropriate”). Claims for reim-

bursement have been denied on occasion. See Falkowski v. EEOC, 719

F.2d 470, 472-76 (D.C. Cir. 1983) (arising after the government declined

to represent a former employee in a lawsuit related to her employment),

vacated sub nom. U.S. Dep’t of Justice v. Falkowski, 471 U.S. 1001

(1985); Turner v. Schultz, 187 F. Supp. 2d 1288, 1290 (D. Colo. 2002)

(same). Moreover, the decision to provide or to deny such reimbursement

is entirely within the discretion of the current Attorney General, and is not

subject to judicial review. Falkowski v. EEOC, 764 F.2d 907, 911 (D.C.

Cir. 1985).