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).