Ashcroft v. Al-Kidd

**Ashcroft v. Al-Kidd** is a 2011 case decided by the U.S. Supreme Court. It was a civil lawsuit filed in federal court. It argued that holding Muslim-Americans after the September 11 attacks was unconstitutional.

## Background

A young man named Lavoni T. Kidd was a prominent football player at the University of Idaho. He is an American citizen. While at college, Kidd converted to Islam and took the name Abudulla al-Kidd.

In 2003, the police arrested Al-Kidd as he was boarding a flight to Saudi Arabia, where he planned to study.  He was held for 15 nights under the federal material witness statute (a law that allows police to hold people who are going to testify in court) because he was going to testify in the trial of Sami Omar Al-Hussayen.  FBI Director Robert S. Mueller told Congress that al-Kidd's capture was one of the FBI's "success" stories.  Al-Kidd was never charged with a crime or called as a witness. He was later released.

Al-Kidd went to court, suing John Ashcroft, who was United States Attorney General from 2001 to 2005.  Al-Kidd said he was strip-searched, shackled, interrogated without having a lawyer with him, and treated as a terrorist.  The American Civil Liberties Union lawyers who represented al-Kidd claimed he was one of 70 Muslim men who were treated this way.

Aschroft claimed that he had "absolute immunity" from civil lawsuits like al-Kidd's. In other words, because his actions were part of his duties as Attorney General, nobody can sue him about those actions.  Ashcroft also claimed that he had "qualified immunity" that prevents such lawsuits unless the official violated someone's constitutional rights.

In 2009, the United States Court of Appeals for the Ninth Circuit found that Ashcroft could be sued and held personally responsible for the wrongful holding of al-Kidd. On October 18, 2010, the United States Supreme Court agreed to hear Ashcroft's appeal.

## Supreme Court decision

On May 31, 2011, the Supreme Court ruled against al-Kidd by a vote of 8-0.  (Usually there are nine Supreme Court Justices, but Justice Elena Kagan did not participate in the al-Kidd case.)

To show that Ashcroft could be sued, al-Kidd's lawyers had to meet a very high burden of proof.  They needed to prove that Ashcroft was directly involved in holding al-Kidd, or that he knew what was happening to al-Kidd.  The Court ruled that al-Kidd's lawyers had not proved these things.  They suggested that al-Kidd's detention was handled mostly by people who were much less powerful than Ashcroft.

All eight Supreme Court Justices agreed that the Ninth Circuit's ruling should be reversed.  However, the Justices reached this decision for different reasons.

### Majority opinion

Justice Antonin Scalia wrote a majority opinion.  He was joined by Chief Justice John G. Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito.  Scalia wrote that a Magistrate Judge had issued a valid arrest warrant for al-Kidd based on specific information about him.  Al-Kidd was not arrested in a general effort to sweep a large group of Muslims into jail  he was specifically arrested because he was suspected.

In a footnote in his opinion, Scalia argues with Justice Ruth Bader Ginsburg about what type of "individualized suspicion" is needed to justify arresting a person.  Scalia wrote that a person does not need to be suspected of "wrongdoing"  he just needs to be suspected.  Scalia found that Ashcroft was protected from any possible lawsuits for ordering this group of arrests:
> 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.

### Concurring opinions

Justice Kennedy wrote a concurring opinion.  He was joined by Justices Ginsburg, Stephen Breyer, and Sonia Sotomayor for Part I of his opinion.  He also wrote that al-Kidd's lawsuit should be dismissed.

Kennedy wrote the second part of his opinion alone.  In this part, he described his concern that the Attorney General of the United States cannot be personally sued just because lower courts in some parts of the United States have made legal decisions opposing his policies.

Justice Ginsburg, joined by Justices Breyer and Sotomayor, wrote that it was "uncertain" just how powerful the Material Witness Statute was.  For example, she/ questioned whether a "law-abiding citizen" who was not suspected of wrongdoing could be sent to jail if he saw "a crime during the days or weeks before a scheduled flight abroad."  Ginsburg, Breyer, and Sotomayor were also concerned about how al-Kidd was treated in jail.  The Court did leave al-Kidd with the right to sue his jailers for mistreating him.

Justice Sotomayor, joined by Justices Ginsburg and Breyer, wrote that the Court did not have to think about constitutional questions to decide this case.