Legal Commentary

Much MSM discussion of Al-Kidd v. Ashcroft, in which the Ninth Circuit held that former Attorney General John Ashcroft did not enjoy either absolute prosecutorial or qualified executive immunity from damages claims that he established policies or presided over a regime of misuse of material-witness warrants to detain individuals not for purposes of ensuring their testimony, but to investigate the detained witnesses themselves for terrorism-related activities.

The plaintiff, a natural-born U.S. citizen who converted to Islam, was arrested on a material-witness warrant in March 2003, allegedly because of contact he had with Sami Omar Al-Hussayen and an Islamic charity, the Islamic Assembly of North America, that purportedly gave financial and other support to radical Islamist activities. Al-Kidd was held (in custody or supervised release) for 15 months, although never called as a witness in Al-Hussayen's trial (Al-Hussayen was acquitted). The warrant was obtained on false, incomplete, or omitted information and al-Kidd alleges that the purpose in seeking the arrest was to question and gather more information on al-Kidd.

Coming as it does on the heels of Ashcroft v. Iqbal, where the Supreme Court created a difficult road for victims of unconstitutional War-on-Terror tactics to seek damages against Ashcroft and other high-level executive-branch officials from the Bush Administration, the fact that this case was allowed to go forward has drawn some media attention.

There is a lot of interesting stuff going on here, that I will hit here and in a couple of later posts.

Absolute Prosecutorial Immunity

The court held that, in establishing and overseeing a policy of using material-witness warrants to investigate or simply detain the target of the warrant, Ashcroft was acting as an investigator rather than a prosecutor (as were his underlings). The court recognized that the ordinary, appropriate use of material-witness detention in the wake of an indictment and in preparation for a forthcoming trial would be prosecutorial. Here, however, the court added a limited purpose element to the immunity analysis; while a prosecutorial function committed with an improper purpose does not strip a prosecutor of immunity, the "immediate purpose" behind an act helps define whether it is investigative or prosecutorial and an act done with an immediate investigatory purpose is investigative.

This is a fine, but important line. The court looked at largely objective facts in making this determination--the temporal distance between the warrant and the trial; the government's investigative history with the target of the warrant; what the government questioned the witness about while in custody (who they asked about and what conduct they asked about); and whether he was called to testify at the eventual trial. The complaint also contained public statements by DOJ officials (including Ashcroft) about the expanded use of material-witness warrants for largely investigative purposes. On these facts, at least at the 12(b)(6) stage, Ashcroft was functioning as an investigator (or the supervisor/policymaker over investigators).

Interestingly, the majority also responded to concerns about unadorned allegations of non-prosecutorial motive by plaintiffs by emphasizing the amount of detail in the Complaint. This is an Iqbal-triggered concern, obviously. And I will talk about this more next post.

But here, it reflects an unfortunate pleading confusion. Prosecutorial immunity is supposed to be an affirmative defense, with the burden of proof (as the court seems to acknowledge) on the defendants. But the burden of pleading also should be on the defendant. Thus, the plaintiff should not have to plead that the challenged acts were non-prosecutorial and why, consistent with Iqbal or otherwise. It should be on the defendant to plead that the acts were prosecutorial. The language of the decision seems to convert anticipation and rejection of the defense into an element of the plaintiff's claim. This confusion was sort of an underlying issue in Iqbal; it is now explicit here.

Qualified Immunity

The court next held that Ashcroft was not entitled to qualified immunity. True, it was not clearly established in 2003 that misuse of the material-witness procedures violated the Fourth Amendment. But, the court said, dicta in Ninth Circuit law at the time suggested that material-witness detentions must be linked to a primary need to obtain testimony. Further, the definition and history of probable cause under the Fourth Amendment were clearly established, which should put government officials on notice that arresting someone on mere suspicion of criminal activity runs afoul of the Fourth Amendment. Finally, the court pointed to a 2002 district court case that rejected this use of material-witness detention as an investigative tool, calling out Ashcroft by name.

There is a tone to the opinion that this use of detention was akin to a government policy of selling babies who are in foster care. This is Judge Posner's classic example of something that is so glaringly, obviously unconstitutional that the law is clearly established on general principle regardless of case law, because a case on all fours never will arise.

Supervisory Liability

There was some concern that Iqbal eliminated supervisory liability under Bivens/§ 1983, by demanding an intent to establish unlawful policy. The al-Kidd majority rejected that reading, limiting an intent requirement to those supervisory-liability cases in which the underlying constitutional right contains an intent element (as with the Equal Protection and religious liberty claims in Iqbal). Otherwise, pre-existing Ninth Circuit law controls, allowing supervisory liability on a number of theories, including failure to train, supervise, or control; for setting in motion unconstitutional acts of others; and for acquiescing in constitutional misconduct by underlings.

Damages for violating § 3144

One final, strange thing in the case is that al-Kidd sought damages because the government's misuse of the material-witness statute in this case violated the statute itself (as opposed to violating the Fourth Amendment). Yet there was no discussion in the case of how or why a person could sue for damages for a statutory violation of § 3144. I have found no case recognizing a private right of action for damages under § 3144 itself (a Westlaw search turned up nothing). And Bivens actions are permitted for constitutional violations, not statutory violations (one obvious way that Bivens and § 1983 differ). Did I miss something? How did this issue fall through the cracks?

In the next post, I will discuss the issues in the case relating to Iqbal and pleading under Rule 8(a).