CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, May 31, 2011

Opinion in material witness/immunity case

The case is Ashcroft v. al-Kidd. Here is the syllabus:

Respondent al-Kidd alleges that, after the September 11th terrorist attacks, then-Attorney General Ashcroft authorized federal officials to detain terrorism suspects using the federal material-witness statute, 18 U. S. C. §3144. He claims that this pretextual detention policy led to his material-witness arrest as he was boarding a plane to Saudi Arabia. To secure the warrant, federal officials had told a Magistrate Judge that information “crucial” to Sami Omar al-Hussayen’s prosecution would be lost if al-Kidd boarded his flight.Prosecutors never called al-Kidd as a witness, and (as he alleges) never meant to do so. Al-Kidd filed suit pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, challenging the constitutionality of Ashcroft’s alleged policy. The District Court denied Ashcroft’s motion to dismiss on absolute and qualified immunity grounds. The Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity.


1. The objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Pp. 3–9.

(a) Qualified immunity shields a government official from money damages unless (1) the official violated a statutory or constitutional right, and (2) that right was “clearly established” at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U. S. 800, 818. Where, as here, a court considers both prongs of this inquiry, this Court has the discretion to correct the lower court’s errors at each step. P. 3.

(b) Whether a detention is reasonable under the Fourth Amendment “is predominantly an objective inquiry.” Indianapolis v. Edmond, 531 U. S. 32, 47. Courts ask whether “the circumstances,viewed objectively, justify [the challenged] action.” Scott v. United States, 436 U. S. 128, 138. Except for cases that involve special needs, e.g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653, or administrative searches, e.g., Michigan v. Clifford, 464 U. S. 287, 294, this Court has almost uniformly rejected invitations to probe subjective intent. The Court of Appeals was mistaken in believing that Edmond established that “ ‘programmatic purpose’ is relevant to Fourth Amendment analysis of programs of seizures without probable cause.” 580 F. 3d 949, 968. It was not the absence of probable cause that triggered Edmond’s invalidating-purpose inquiry, but the checkpoints’ failure to be based on “individualized suspicion.” 531 U. S., at 47. Here a neutral Magistrate Judge issued a warrant authorizing al-Kidd’s arrest, and the affidavit accompanying the warrant application gave individualized reasons to believe that he was a material witness who would soon disappear. A warrant based on individualized suspicion grants more protection than existed in most of this Court’s cases eschewing inquiries into intent, e.g., Whren v. United States, 517 U. S. 806, 813, and Terry v. Ohio, 392 U. S. 1, 21–22. Al-Kidd’s contrary, narrow reading of those cases is rejected. Because he concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretext; there is no Fourth Amendment violation here. Pp. 3–9.

2. Ashcroft did not violate clearly established law and thus is entitled to qualified immunity. A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would have understood that what he is doing violates that right.” Anderson v. Creighton, 483 U. S. 635, 640. Here, the asserted constitutional right falls far short of that threshold. At the time of al-Kidd’s arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a
material-witness warrant unconstitutional. The Ninth Circuit’s reliance on a District Court’s footnoted dictum, irrelevant cases from this Court, and the Fourth Amendment’s broad purposes and history is
rejected. Because Ashcroft did not violate clearly established law, the question whether he enjoys absolute immunity need not be addressed. Pp. 9–12.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part I. GINSBURG, J., filed an opinion concurring in the judgment, in which BREYER and SOTOMAYOR, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in the judgment, in which GINSBURG and BREYER, JJ., joined. KAGAN, J., took no part in the consideration or decision of the case.

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detention is always possible and for every/any reason - 100% of the time, 24/7/365. thats why the 8th amendment was reduced to writing, inserted in the constitution, and then further set in stone by the judiciary act of 1789. oh thats right - i forgot. lawyers failed to overturn a little act - like the bra 1984, which for all intent and purpose abolished the right to bail. why, because leaving bra 1984 alone - created a financial windfall for guess who - lawyers.

Posted by: concernedcit | May 31, 2011 12:02:29 PM

ashcroft only sought warrant - it was a judge who authorized it. most stupid lawsuit ever. can't believe supreme court even bothered. talk about politics.

Posted by: concernedcit | Jun 1, 2011 3:29:37 AM

I don't understand. How can one be "arrested" except on suspicion of a crime? How can an arrest for a non-crime be even remotely reasonable? This sounds far more like tyranny than like justice to me. Are we now far down the road towards fascism?

Posted by: Jack Jones | Jun 4, 2011 1:55:52 PM

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