Al-Kidd v. Ashcroft

O’SCANNLAIN, Circuit Judge,

joined by KOZINSKI, Chief Judge, and KLEINFELD, GOULD, TALLMAN, CALLAHAN, 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 decision 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 unconstitutional as applied to alKidd. Second, the majority holds that a cabinet-level official may be personally liable for actions 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 ar*1138rest 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 alKidd 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 alKidd at the ticket counter at Dulles International Airport, outside Washington, D.C. After his arrest, the government detained al-Kidd for a total of sixteen days at several different federal facilities before releasing him on conditions that he surrender his passport, 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 restrictions on his travel be lifted.

Two years later, al-Kidd filed this lawsuit in the U.S. District Court for the District of Idaho. His first amended complaint alleges that Ashcroft violated the Fourth and Fifth Amendments and the federal material witness statute by promulgating a policy directing federal prosecutors to seek material 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 district court’s ruling in an extraordinarily broad and unprecedented decision.3

II

By permitting al-Kidd’s suit to proceed, the majority commits two distinct but equally troubling legal errors, each of which will have far-reaching implications for how government 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 violate 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 affidavits to obtain the warrant authorizing al-Kidd’s arrest, the majority stretches be*1139yond recognition the rule that a government official is liable only when he personally violates the constitution. See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (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 statutory requirements for arrest as a material witness. See al-Kidd, 580 F.3d at 957. Nor does he contend that the material witness statute is facially unconstitutional. Id. at 966. The majority 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 unconstitutional in this circumstance.4 With respect, such conclusion is preposterous.

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, 49 S.Ct. 452, 73 L.Ed. 867 (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 ease.

The majority does not stop at declaring a 200-year-old statute unconstitutional, however. It also distorts the bedrock Fourth Amendment principle that an official’s subjective reasons 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, 116 S.Ct. 1769, 135 L.Ed.2d 89 (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, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); see also Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (“[T]he Fourth Amendment’s concern with ‘reasonable*1140ness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent[of the government official taking the action].” (internal quotation marks omitted)).

The majority, unfortunately, disagrees. Although it acknowledges that an officer’s subjective intentions are irrelevant to “ordinary, probable-cause Fourth Amendment analysis,” 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 inapplicable here. The Supreme Court uses the programmatic purpose test to evaluate the constitutionality of warrantless searches. See Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (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 subjective 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 “clearly established”? See Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 97 L.Ed.2d 523 (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 *1141Should 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 General 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 subordinates provided false testimony in support of their application for a material witness warrant. Al-Kidd, 580 F.3d at 975-76. It cannot be contested that al-Kidd has a clearly established right to be free of an arrest based on fraudulent testimony. See Franks v. Delaware, 438 U.S. 154, 164-65, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Al-Kidd does not allege that Ashcroft personally swore any false testimony, however. Rather, it was Ashcroft’s subordinates who provided the testimony that al-Kidd alleges was false. In light of Iqbal’s holding that “each Government official, 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 applications 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 Ashcroft 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

Because these results are contrary to both logic and law, I respectfully dissent from our unfortunate rejection of the op*1142portunity to correct these errors by rehearing this case en banc.

. 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 ar*1138rest 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 deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

. 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.

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

. 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 material 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 Violated," id. at 965, it concludes that al-Kidd’s arrest was impermissible. By concluding that the Constitution invalidates arrests authorized by the statute, 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 alKidd.

. 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).

. The possibility the federal government might reimburse Ashcroft for any judgment against him hardly removes the likelihood that this decision might deter the current or future Attorneys General from carrying out their duties. Anderson, 483 U.S. at 641 n. 3, 107 S.Ct. 3034 (noting that 28 C.F.R. § 50.15(c) "permitís] reimbursement of Department of Justice employees when the Attorney General finds reimbursement appropriate”). Claims for reimbursement 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, 105 S.Ct. 1860, 85 L.Ed.2d 155 (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).