Ashcroft v. al-Kidd: Official Immunity and Material Witnesses Before the Supreme Court
Released: 2011-07-01T00:00:00

Introduction

May a United States Attorney General be sued for damages as a consequence of a policy that resulted in the otherwise valid arrest of a material witness, when the arrest was ordered for an improper purpose? No, agreed the Justices of the Supreme Court. The decision does not resolve the question of whether the material witness statute can be used for such purposes. It does not resolve the constitutionality of the material witness statute. It does not resolve the question of whether the Fourth Amendment permits the arrest of an individual—using the material witness statute as a subterfuge—without probable cause to believe that he has committed a crime. It does not resolve the question of whether a prosecutor who applies to a magistrate for an arrest warrant under such circumstances is entitled to the absolute immunity that attends the participants in judicial proceedings. It does not resolve the question of whether the absolute and qualified immunity standards are the same for an Assistant United States Attorney as the Attorney General and all the supervisory attorneys in between. It simply declares the alleged conduct did not violate Fourth Amendment law, clearly established at the time. Consequently, the then Attorney General was entitled to qualified immunity.

Background

In February of 2003, an Idaho federal grand jury indicted Al-Hussayen for visa fraud and false statements in connection with his student visa. The United States Attorney's Office then applied for a material arrest warrant for al-Kidd under 18 U.S.C. 3144. It offered an FBI (Federal Bureau of Investigation) affidavit in support of its application. The affidavit asserted that al-Kidd was associated with Al-Hussayen, that al-Kidd had traveled to and returned from Yemen; that he had received over $20,000 from Al-Hussayen; and that al-Kidd had contact with officials of the Islamic Assembly of North America (IANA). It also stated that al-Kidd was "believed to be in possession of information germane to the this matter which will be crucial to the prosecution;" that he was scheduled to fly one-way to Saudi Arabia within two days of the application; and that after he traveled to Saudi Arabia, "the United States government [would] be unable to secure his presence at trial via subpoena."

The warrant issued, and al-Kidd was arrested two days later at Dulles International Airport in the Eastern District of Virginia. He was then returned to Idaho by way of the transfer facility in Oklahoma. Nine days later, he was presented to the magistrate in Idaho who denied bail. Shortly thereafter, the government proposed that he be released on the condition that he reside with his in-laws in Nevada, surrender his passport, and confine his travel to Nevada and three adjoining States.

A year after al-Kidd's arrest, Al-Hussayen, a computer science student at the University of Idaho, was also charged with conspiring to provide material support to terrorists, in connection with website services he allegedly provided Islamic Assembly of North America (IANA). The jury subsequently acquitted Al-Hussayen of the terrorism counts, but was unable to agree on a verdict on the fraud and false statement charges. Al-Kidd was never charged nor called to testify at Al-Hussayen's trial. The court lifted the conditions on al-Kidd's release after the trial. He then sued a line of federal officials from the FBI to the Attorney General, claiming a violation of the Fourth and Fifth Amendments and of the material witness statute:

Al-Kidd asserts three independent claims against Ashcroft. First, he alleges that Ashcroft is responsible for a policy or practice under which the FBI and the DOJ sought material witness orders without sufficient evidence that the witness's testimony was material to another proceeding, or that it was impracticable to secure the witness's testimony—in other words, in violation of the express terms of [18 U.S.C.] §3144 itself—and that al-Kidd was arrested as a result of this policy (the §3144 Claim). Second, al-Kidd alleges that Ashcroft designed and implemented a policy under which the FBI and DOJ would arrest individuals who may have met the facial statutory requirements of §3144 , but with the ulterior and allegedly unconstitutional purpose of investigating or preemptively detaining them, in violation of the Fourth Amendment (the Fourth Amendment Claim). Finally, al-Kidd alleges that Ashcroft designed and implemented policies, or was aware of policies and practices that he failed to correct, under which material witnesses were subjected to unreasonably punitive conditions of confinement, in violation of the Fifth Amendment (the Conditions of Confinement Claim). al-Kidd v. Ashcroft , 580 F.3d at 957.

The defendants moved to dismiss for failure to state a claim and on grounds of absolute and qualified immunity. Prosecutors enjoy absolute immunity from suit for what they do in court. They enjoy qualified immunity for work they do as investigators. Qualified immunity becomes unavailable if an official acts contrary to a clearly established constitutional or statutory right. The District Court denied the motions, and Ashcroft appealed. The Court of Appeals reversed the District Court's refusal to dismiss the Fifth Amendment claim. It affirmed, however, the District Court's refusal to dismiss for failure to state a claim under section 3144 or grounds of either absolute or qualified immunity.

Material Witness Statute

Al-Kidd's experience was in one sense neither new nor rare. Witnesses in a federal criminal case may find themselves arrested, held for bail, and in some cases imprisoned until they are called upon to testify, 18 U.S.C. 3144. The same is true in most if not all of the states. Although subject to intermittent criticism, it has been so at least from the beginning of the Republic. The Supreme Court has never squarely considered the constitutionality of section 3144 or any of its predecessors, but it has observed in passing that, "[t]he duty to disclose knowledge of crime ... is so vital that one known to be innocent may be detained in the absence of bail, as a material witness," Stein v. New York , 346 U.S. 156, 184 (1953). Even more telling may be an earlier remark from the Court to the effect that, "[t]he constitutionality of this [federal material witness] statute apparently has never been doubted," Barry v. United States ex rel. Cunningham , 279 U.S. 597, 617 (1929).

In spite of the concerns of some that the authority can be used as a means to jail a suspect while authorities seek to discover probable cause sufficient to support a criminal accusation or as a preventive detention measure, the lower courts have denied that the federal material witness statute can be used as a substitute for a criminal arrest warrant. Particularly in the early stages of an investigation, however, an individual's proximity to a crime may make him a legitimate witness as well as a legitimate suspect.

The case law and statistical information suggest that the federal statute is used with regularity, and most often in the prosecution of immigration offenses involving material witnesses who are foreign nationals. Critics, however, contended that in the aftermath of the attacks of September 11, 2001, seventy individuals, mostly Muslims, were arrested and detained in abuse of the statute's authority.

The federal material witness statute provides that

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 [relating to bail]. 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. 18 U.S.C. 3144.

An arrest warrant for a witness with evidence material to a federal criminal proceeding may be issued by federal or state judges or magistrates. The statute applies to potential grand jury witnesses as well as to potential trial witnesses.

Issuance of a section 3144 arrest warrant requires affidavits establishing probable cause to believe (1) that the witness can provide material evidence, and (2) that it will be "impracticable" to secure the witness' attendance at the proceeding simply by subpoenaing him. The statute does not directly address the question of what constitutes "material" evidence for purposes of section 3144, but in other contexts, materiality is understood to mean that which has a "natural tendency to influence, or is capable of influencing, the decision of the decisionmaking body to which it was addressed." Nevertheless, one of the few cases to address the issue has suggested a broader meaning: materiality is that which has "some logical connection with the consequential facts."

At the grand jury level, the government may establish probable cause to believe a witness can provide material evidence through the affidavit of a federal prosecutor or a federal investigator gathering evidence with an eye to its presentation to the grand jury. This may not prove a particularly demanding standard in some instances given the sweeping nature of the grand jury's power of inquiry. In al-Kidd's case, for example, the affidavit might have been thought to supply probable cause to believe that al-Kidd had material evidence relating to the grand jury inquiry which ultimately resulted in the indictment of Al-Hussayen for providing material support to IANA in violation of 18 U.S.C. 2339A, 2339B. Whether the affidavit provided probable cause to believe he had material evidence relating the Al-Hussayen's alleged visa fraud and false statements relating to his student visa seems a closer question.

As to the second required probable cause showing, a party seeking a material witness arrest warrant must establish probable cause to believe that it will be impractical to rely upon a subpoena to securing the witness' appearance. The fact that al-Kidd was about to fly to Saudi Arabia would seem sufficient. The case law on point is sketchy, but it seems to indicate that impracticality may be shown by evidence of possible flight, or of an expressed refusal to cooperate, or of difficulty experienced in serving a subpoena upon a trial witness, or presumably by evidence that the witness, unlike al-Kidd, is a foreign national who will have returned or been returned home by the time his testimony is required.

Bail

With limited variations, federal bail laws apply to material witnesses arrested under section 3144. Arrested material witnesses are entitled to the assistance of counsel during bail proceedings and to the appointment of an attorney when they are unable to retain private counsel. The bail laws operate under an escalating system in which release is generally favored, then release with conditions or limitations is preferred, and finally as a last option detention is permitted. A defendant is released on his word (personal recognizance) or bond unless the court finds such assurances insufficient to guarantee his subsequent appearance or to ensure public or individual safety. A material witness need only satisfy the appearance standard. A material witness who is unable to do so is released under such conditions or limitations as the court finds adequate to ensure his later appearance to testify. If neither word nor bond nor conditions will suffice, the witness may be detained. The factors a court may consider in determining whether a material witness is likely to remain available include his deposition, character, health, and community ties. And so it seems to have been in al-Kidd's case.

The government must periodically report to the court on the continuing justification for holding material witnesses who have not been released on bail. It is unclear whether and to what extent this safeguard can be bypassed by moving the witness from one district to another, particularly when the individual is treated more like a suspect than a witness .

Absolute Immunity

Prosecutorial officials enjoy absolute immunity from civil suit for their actions as officers of the court. "To decide whether absolute immunity attaches to a particular kind of prosecutorial activity, one must take account of ... functional considerations." Thus, "absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding," or when a prosecutor "appears in court to present evidence in support of a search warrant application," or when a supervisory prosecutor trains trial prosecutors on their constitutional pre-trial obligations. Conversely, it does not attach when a prosecutor "gives advice to police during a criminal investigation," or when a "prosecutor makes statements to the press," or when "a prosecutor acts as a complaining witness in support of a warrant application."

Ashcroft argued before the Ninth Circuit that applying for a material witness arrest warrant is a prosecutorial function that carries absolute immunity. Al-Kidd countered that absolute immunity no longer covers such an application when it is sought for investigative purposes rather than trial preparation. The Ninth Circuit concurred: "[W]hen a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another's trial, the prosecutor is entitled at most to qualified, rather than absolute immunity."

Qualified Immunity

"Most public officials are entitled ... to qualified immunity" for acts committed in the performance of their duties. "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights...."

Al-Kidd claimed that his Fourth Amendment rights had been violated by policy created and implemented by the Attorney General used the material witness statute as a pretext to arrest criminal suspects. The material witness statute requires probable cause to believe that an individual has evidence material in a judicial proceeding. The Fourth Amendment requires probable cause to believe that an individual has committed a crime. The two are not the same. Al-Kidd argued that the convenience of the statute cannot be used to avoid the limitations of the Fourth Amendment. The Ninth Circuit again agreed: "All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause is to violate the Fourth Amendment."

Nevertheless, when suit is based on an alleged Fourth Amendment violation, an officer's motives ordinarily play no role in the determination of whether a violation has occurred. The Ninth Circuit, however, accepted al-Kidd's contention that the ordinary rules did not apply because use of the material witness statute did not deal with the ordinary type of probable cause upon which the Supreme Court's cases were predicated: probable cause to believe a crime had been committed. To support the view that official motives matter in some Fourth Amendment cases, the Ninth Circuit pointed to two Supreme Court traffic-stop cases— Edmond and Lidster —which the Court had distinguished on the basis of the purpose for the stop.

The existence of a constitutional violation notwithstanding, qualified immunity cannot be lost unless the constitutional right is "clearly established." "For a constitutional right to be clearly established, its contours 'must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in the light of pre-existing law the unlawfulness must be apparent."

The Ninth Circuit conceded that '[n]o federal appellate court had yet squarely held that the federal material witness statute satisfied the requirements of the Fourth Amendment." Yet, the definition of probable cause in a criminal case was clearly established. Edmonds had demonstrated the perils of a law enforcement motivated seizure without probable cause. Al-Kidd's situation was akin to those that lead to the adoption of the Fourth Amendment. Moreover, shortly before al-Kidd's arrest, a federal court had questioned the legitimacy of pretextual material witness arrests in remarks that mentioned the Attorney General by name. From this, the Ninth Circuit concluded that "al-Kidd's right not to be arrested as a material witness in order to investigated or preemptively detained was clearly established" at the time of his arrest.

Thus, the Ninth Circuit concluded Ashcroft was entitled to neither absolute nor qualified immunity and declined to reconsider en banc.

Al-Kidd Before the Court

The Supreme Court granted the petition of the United States for certiorari, and reversed. Justice Scalia wrote the opinion for the Court, from which there were no dissenting opinions. Justice Kennedy concurred. Justices Ginsburg, Breyer, and Sotomayor concurred in the result. Justice Kagan did not participate in the case.

In its argument before the Court, the Solicitor contended that (1) Ashcroft is entitled to absolute immunity, because an application for a material witness warrant is a prosecutorial function entitled to absolute immunity; a fact recognized by other circuits. (2) Ashcroft was entitled to qualified immunity, because arrest under a valid material witness arrest warrant was not a violation of the Fourth Amendment regardless of the prosecutor's motives. (3) Ashcroft was entitled to qualified immunity, because any constitutional violation was not clearly established at the time. The Court essentially agreed as to qualified immunity.

It determined that there had been no Fourth Amendment violation: "We hold that an 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." Moreover, "[b]ecause Ashcroft did not violate clearly established law" and therefore enjoyed qualified immunity, the Court felt it "need not address the more difficult question of whether he enjoys absolute immunity."

The Court's Fourth Amendment finding rested on two point. First, pretexts aside, al-Kidd's arrest satisfied constitutional requirements. Or more precisely al-Kidd did not challenge the constitutionality of his arrest, save on grounds the officers' motivation: "[A]l-Kidd 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 pretextual use of the warrant."

Second, the case presented none of the circumstances under which motivation might undermine a determination of Fourth Amendment reasonableness. True, the Court had considered motivation in its "special needs" and administrative search cases, and in an anti-drug traffic stop case, Edmond . Yet there, the government had offered the benign motives of its officers to establish the reasonableness of warrantless searches performed for noncriminal law purposes and of its suspicionless and warrantless traffic stops conducted for criminal law purposes. Here, the officers had a warrant. From the Court's perspective, that made all the difference.

Whether for want of a Fourth Amendment violation or want of a clearly established Fourth Amendment violation, all of the Justices agreed that the Attorney General was entitled to qualified immunity. Three—Justices Ginsburg, Breyer, and Sotomayor—would have stopped there, and left for another day the Fourth Amendment issue.

The Fourth Amendment issue aside, the Court's treatment of the material witness issue also troubled the three and Justice Kennedy. Justice Kennedy, in the portion of his concurrence joined by Justices Ginsburg, Breyer, and Sotomayor, points out that the opinion for the Court "leaves unresolved whether the Government's use of the Material Witness Statute in this case was lawful." He suggested the answer was not completely clear. Justice Ginsburg, joined by Justices Breyer and Sotomayor, went further. She characterized as puzzling the Court's "validly obtained" description of the material witness warrant, and was obviously troubled by al-Kidd's treatment after his arrest.

Justice Kennedy also suggested that a different "clearly established law" standard might be appropriate for national officials:

Some federal officers perform their functions in a single jurisdiction, say within the confines of one State or one federal judicial district. They reasonably can anticipate when their conduct may give rise to liability for damages and so are expected to adjust their behavior in accordance with local precedent. In contrast the Attorney General occupies a national office and so sets policies implemented in many jurisdictions throughout the country. The official with responsibilities in many jurisdictions may face ambiguous and sometimes inconsistent sources of decisional law. While it may be clear that one Court of Appeals has approved a certain course of conduct, other Courts of Appeals may have disapproved it, or at least reserved the issue.

When faced with inconsistent legal rules in different jurisdictions, national officeholders should be given some deference for qualified immunity purposes, at least if they implement policies consistent with the governing law of the jurisdiction where the action is taken.

This too, however, lay beyond the narrow focus of the Court's opinion.