Tuesday, May 31, 2011
The Supreme Court ruled today in Ashcroft v. Al-Kidd that former AG John Ashcroft enjoyed qualified immunity from a civil rights suit against him for an arrest and detention under the federal material witness statute. The ruling means that Abdullah Al-Kidd's Fourth Amendment case against Ashcroft is dismissed--and that such arrests and detentions pursuant to a valid material witness warrant do not violate the Fourth Amendment. But the ruling also puts the validity of material witness warrants in cases like this on shaky ground.
Al-Kidd sued Ashcroft for his arrest and detention pursuant to the material witness statute, 18 U.S.C. Sec. 3144. (The statute authorizes judges to "order the arrest of [a] person" whose testimony "is material in a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena." But material witnesses must be released if their testimony "can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.") Al-Kidd argued that Ashcroft never intended to use him (and never in fact used him) as a material witness; instead, he was detained for 16 days at three different facilities, kept in high-security cells lit 24 hours a day, strip-searched and body-cavity searched more than once, and handcuffed and shackled about his wrists, legs, and waist.
The district court and Ninth Circuit both ruled for Al-Kidd, denying Ashcroft qualified immunity.
The Court today reversed. All eight participating justices agreed that Ashcroft did not violate a "clearly established" Fourth Amendment right at the time of Al-Kidd's arrest and detention pursuant to the material witness statute. (Justice Kagan recused herself from the case.) Under Harlow v. Fitzgerald, an official gets qualified immunity unless (1) the official violated a statutory or constitutional right (the constitutional question) and (2) the right was "clearly established" at the time of the conduct. Thus the Court's ruling on the "clearly established" prong alone means that Ashcroft gets qualified immunity.
But the Justices divided sharply on the constitutional question. Justice Scalia (again writing for five) wrote that Al-Kidd's arrest and detention did not violate the Fourth Amendment. He wrote that the Court generally does not probe intent in determining the validity of warrants. Here, Al-Kidd's objectively reasonable arrest and detention pursuant to a validly obtained warrant cannot be challenged as unconstitutional simply because the arresting authority had an improper motive (i.e., not to use Al-Kidd as a material witness, but rather simply to detain him).
Four Justices expressed varying degrees of reservation on the broader question of the use of material witness warrants for general detention. Justice Kennedy, who signed on to Scalia's opinion in full, wrote separately (joined by Justice Ginsburg, Breyer, and Sotomayor) to say that the Court left open the question whether the government's use of the material witness statute was lawful. Justice Kennedy wrote that material witness warrants might not even be "warrants" for Fourth Amendment purposes, and therefore material witness arrests might be subject to the Fourth Amendment reasonableness standard. He emphasized that the parties did not argue, and the Court did not address, this question. (Justice Kennedy also expressed his views on the "clearly established" standard as applied to a national official like Ashcroft. No other Justice joined this part of his opinion.)
Justice Ginsburg (writing for herself and Justices Breyer and Sotomayor) challenged the validity of the warrant, principally because it was based on false and misleading allegations. Justice Sotomayor (writing for herself and Justices Ginsburg and Breyer) challenged the "subjective intent" rule here, in a case involving prolonged detention of an individual without probable cause to believe had he committed a crime.
Between the opinions, all eight participating Justices agree that Ashcroft did not violate a "clearly established" right. Five Justices agree that Ashcroft did not violate the Fourth Amendment. But one of those, Justice Kennedy, and three others suggested that the validity of a material witness warrant used merely for detention is an open question, at best.
Note that Justice Scalia wrote, and Justices Kennedy and Thomas joined, the Court's opinion on the constitutional question, when all three last week criticized the practice among lower courts (and authorized by the Supreme Court) of ruling on the constitutional question. The difference: Here it's the Supreme Court, not a lower court, ruling on the constitutional question.