May 31, 2011

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Instant Analysis: Ashcroft v. al-Kidd

In an 8-0 opinion by Justice Scalia, the Court found that Attorney General Ashcroft has qualified immunity for his involvement in the objectively reasonable arrest and detention of al-Kidd, a material witness, pursuant to a validly obtained warrant. Further, the validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority, Ashcroft, had an improper motive.

Justice Kennedy filed a concurring opinion, joined by Justices Ginsburg, Breyer, and Sotomayor as to Part I. Justice Ginsburg filed an opinion concurring in judgment only, in which Breyer and Sotomayor joined. Sotomayor filed an opinion concurring in judgment, which Ginsburg, and Breyer joined. Kagan had recused herself in this case. It is noteworthy that if Kagan had been on board, there may have been 5 votes for Kennedy’s position. I will update this post as I make my way through the opinion.

Justice Scalia’s Majority Opinion

In this case, the Court must “decide whether a former Attorney General enjoys immunity from suit for allegedly authorizing federal prosecutors to obtain valid material-witness warrants for detention of terrorism suspects whom they would otherwise lack probable cause to arrest.”

Scalia holds that Attorney General Ashcroft does enjoy immunity:

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.

Here is the major turn in Scalia’s opinion, and the portion Ginsburg takes the most exception with—al-Kidd does not dispute that the warrant was invalidly issued, and would have been unconstitutional absent the pretext.

Here a neutral Magistrate Judge issued a warrant authorizing al-Kidd’s arrest, and the affidavit accompanying the warrant application gave individualized reasons to believe that he was a material witness who would soon disappear. A warrant based on individualized suspicion grants more protection than existed in most of this Court’s cases eschewing inquiries into intent, e.g., Whren v. United States, 517 U. S. 806, 813, and Terry v. Ohio, 392 U. S. 1, 21–
22. Al-Kidd’s contrary, narrow reading of those cases is rejected. Because he 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 pretext; there is no Fourth Amendment violation here.

Scalia’s reading of the record suggests hat al-Kidd does not “assert that Government officials would have acted unreasonably if they had used a material-witness warrant to arrest him for the purpose of securing his testimony for trial. See Brief for Respondent 16–17; Tr. of Oral Arg. 20–22. He contests, however (and the Court of Appeals here rejected), the reasonableness of using the warrant to detain him as a suspected criminal.” Justice Ginsburg does not agree with this version of the events.

Scalia rejects any efforts to “probe subjective intent” of government officials. The fact that the warrant was based on an “individualized suspicion” “takes this case outside the domain of not onlyour special-needs and administrative-search cases, but of Edmond as well.”

But individual suspicion of what? That someone committed a crime (as Justice Ginsburg suggests)? Or that someone would flee the jurisdiction and be unavailable for trial (as Justice Scalia suggests)?

Scalia addresses this point in a footnote, basically noting that the fact that the precedents support Justice Ginsburg’s position says nothing more than that the current case—where the suspicion is that someone would not be present to testify at trial—is rather rare.

JUSTICE GINSBURG suggests that our use of the word “suspicion” is peculiar because that word “ordinarily” means “that the person suspected has engaged in wrongdoing.” Post, at 3, n. 2 (opinion concurring in judgment). We disagree. No usage of the word is more common and idiomatic than a statement such as “I have a suspicion he knows something about the crime,” or even “I have a suspicion she is throwing me a surprise birthday party.” The many cases cited by JUSTICE GINSBURG, post, at 3, n. 2, which use the neutral word “suspicion” in connection with wrongdoing, prove nothing except that searches and seizures for reasons other than suspected wrongdoing are rare.

With this assumption, Scalia finds not violation of the Fourth Amendment.

Because al-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; we find no Fourth Amendment violation

In a long footnote, Scalia replies directly to the concerns of Ginsburg and Sotomayor about his “opening assumption.” Scalia disagree, and notes this is how al-Kid phrased his argument.

3The concerns of JUSTICES GINSBURG and SOTOMAYOR about the validity of the warrant in this case are beside the point. See post, at 1–2 (GINSBURG, J., concurring in judgment); post, at 2 (SOTOMAYOR, J., concurring in judgment). The validity of the warrant is not our “opening assumption,” post, at 2 (GINSBURG, J., concurring in judgment); it is the premise of al-Kidd’s argument. Al-Kidd does not claim that Ashcroft is liable because the FBI agents failed to obtain a valid warrant. He takes the validity of the warrant as a given, and argues thathis arrest nevertheless violated the Constitution because it was motivated by an illegitimate purpose. His separate Fourth Amendment and statutory claims against the FBI agents who sought the materialwitness warrant, which are the focus of both concurrences, are not before us.

The final portion of the opinion, is not really in dispute. Ashcroft’s actions do not violate clearly established federal law.

Here, the asserted constitutional right falls far short of that threshold. At the time of al-Kidd’s arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional. The Ninth Circuit’s reliance on a District Court’s footnoted dictum, irrelevant cases from this Court, and the Fourth Amendment’s broad purposes and history is rejected. Because Ashcroft did not violate clearly established law, the question whether he enjoys absolute immunity need not be addressed.

No law at the time of the arrest, other than a “dictum” in an SDNY opinion, came close to holding that the arrest was unconstitutional.

At the time of al-Kidd’s arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrantun constitutional. A district-court opinion had suggested, in a footnoted dictum devoid of supporting citation, that using such a warrant for preventive detention of suspects “is an illegitimate use of the statute”—implying (we accept for the sake of argument) that the detention would therefore be unconstitutional. United States v. Awadallah, 202 F. Supp. 2d 55, 77, n. 28 (SDNY 2002). The Court of Appeals thought nothing could “have given John Ashcroft fair[er] warning” that his conduct violated the Fourth Amendment, because the footnoted dictum “call[ed] out Ashcroft by name”! 580 F. 3d, at 972–973 (internal quotation marks omitted; emphasis added).

With tongue in cheek, Scalia assumes arguendo that DOJ lawyers brought to the AG’s attention a single footnote in a single court opinion.

We will indulge the assumption (though it does not seem to us realistic) that Justice Department lawyers bring to the Attorney General’s personal attention all district judges’ footnoted speculations that boldly “call him out by name.” On that assumption, would it prove that for him (and for him only?) it became clearly established that pretextual use of the material-witness statute rendered the arrest unconstitutional? An extraordinary proposition. Even a district judge’s ipse dixit of a holding is not “controlling authority” in any jurisdiction, much less in the entire United States; and his ipse dixit of a footnoted dictum falls far short of what is necessary absent controlling authority: a robust “consensus of cases of persuasive authority.” Wilson v. Layne, 526 U. S. 603, 617 (1999).

Ouch to 9th Circuit law clerks for a legal research failure.

The Court of Appeals’ other cases “clearly establishing” the constitutional violation are, of course, those we rejected as irrelevant in our discussion of whether there was any constitutional violation at all. And the Court of Appeals’ reference to those cases here makes the same error of assuming that purpose is only disregarded when there is probable cause to suspect a violation of law.

Nino further calls out the 9th Circuit for defining rights at too high a level of generality.

The Court of Appeals also found clearly established law lurking in the broad “history and purposes of the FourthAmendment.” 580 F. 3d, at 971. We have repeatedly told courts—and the Ninth Circuit in particular, see Brosseau v. Haugen, 543 U. S. 194, 198–199 (2004) (per curiam)— not to define clearly established law at a high level of generality.

Scalia further chastises the 9th Circuit’s use of history.

According to the Court of Appeals, Ashcroft should have seen that a pretextual warrant similarly “gut[s] the substantive protections of the Fourth Amendmen[t]” and allows the State “to arrest upon the executive’s mere suspicion.” 580 F. 3d, at 972.
Ashcroft must be forgiven for missing the parallel, which escapes us as well. The principal evil of the general warrant was addressed by the Fourth Amendment’s particularity requirement, Stanford, supra, at 485, which Ashcroft’s alleged policy made no effort to evade. The warrant authorizing al-Kidd’s arrest named al-Kidd and only al-Kidd.

And, in the final oh-snap line:

The [9th Circuit] Court of Appeals seems to have cherry-picked the aspects of our opinions that gave colorable support to the proposition that the unconstitutionality of the action here was clearly established.

In sum, Scalia notes that qualified immunity gives government actors “breathing room” to mess up.

Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects “all but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U. S., at 341. Ashcroft deserves neither label, not least because eight Court of Appeals judges agreed with his judgment in a case of first impression. See Wilson, supra, at 618. He deserves qualified immunity even assuming—contrafactually—that his alleged detention policy violated the Fourth Amendment.

Justice Kennedy’s Concurring Opinion

In his concurrence, Kennedy “makes two additional observations”

Part I of Justice Kennedy’s opinoin was joined by Justices Ginsburg, Breyer, and Sotomayor. First, Kennedy notes that the Court does not address the propriety of the Material Witness Statute in this case:

The Court’s holding is limited to the arguments presented by the parties and leaves unresolved whether the Government’s use of the Material Witness Statute in this case was lawful. See ante, at 8 (noting that al-Kidd “does not assert that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant”). . . . The scope of the statute’s lawful authorization is uncertain.

Kennedy notes that issuance of warrants under the Material Witness Statute might be outside ote scope of the Fourth Amendment.

In considering these issues, it is important to bear in mind that the Material Witness Statute might not providefor the issuance of warrants within the meaning of theFourth Amendment’s Warrant Clause. The typical arrestwarrant is based on probable cause that the arrestee hascommitted a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute. See ante, at 11 (reserving the possibility that probablecause for purposes of the Fourth Amendment’s WarrantClause means “only probable cause to suspect a violation of law”). If material witness warrants do not qualify as “Warrants” under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment’s separate reasonableness requirement forseizures of the person. See United States v. Watson, 423
U. S. 411 (1976). Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness arrests might be consistent with statutory and constitutional requirements.

This may provide grounds for future challenges under the Material Witness Statute to raise Fourth Amendment arguments. With Kagan on board, there are likely 5 votes for this view.

Part II was AMK all by himself, and focuses on the unique role of the Attorney General with respect to qualified immunity.

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.

Specifically, national office holders need not be bound by the most stringent legal standard (read, 9th Circuit).

A national officeholder intent on retaining qualified immunity need not abide by the most stringent standard adopted anywhere in the United States. And the national officeholder need not guess at when a relatively small set of appellate precedents have established a binding legal rule. If national officeholders were subject to personal liability whenever they confronted disagreement among appellate courts, those officers would be deterred from full use of their legal authority. The consequences of that deterrence must counsel caution by the Judicial Branch, particularly in the area of national security. See Ashcroft
v. Iqbal, 556 U. S. ___, ___ (2009) (slip op., at 21). Furthermore, too expansive a view of “clearly established law” would risk giving local judicial determinations the effect of rules with de facto national significance, contrary to the normal process of ordered appellate review

In other words, the 9th Circuit’s bizarre and outlier precedents need not bind national officers.

The proceedings in this case illustrate these concerns. The Court of Appeals for the Ninth Circuit appears to have reasoned that a Federal District Court sitting in New York had authority to establish a legal rule binding on the Attorney General and, therefore, on federal law enforcement operations conducted nationwide. See 580 F. 3d 949, 972–973 (2009). Indeed, this case involves a material witness warrant issued in Boise, Idaho, and an arrest near Washington, D. C. Of course, district court decisions are not precedential to this extent. Ante, at 9– 10. But nationwide security operations should not have to grind to a halt even when an appellate court finds those operations unconstitutional. The doctrine of qualified immunity does not so constrain national officeholders entrusted with urgent responsibilities.

This is a not-too-subtle rebuke to the 9th Circuit.

Justice Ginsburg’s Opinion Concurring in Judgment

Ginsburg concurs in the Court’s opinion, and finds that “no ‘clearly established law’ renders Ashcroft answerable in damages for the abuse of authority al-Kidd charged.” She parts from the Court, with respect to the “Court’s disposition of al-Kidd’s Fourth Amendment claim on the merits.” Ginsburg questions whether the Warrant was validly obtained, criticizing the majority from assuming it was.

In addressing al-Kidd’s Fourth Amendment claim against Ashcroft, the Court assumes at the outset the existence of a validly obtained material witness warrant. Ante, at 1, 12. That characterization is puzzling.
FN1- 1Nowhere in al-Kidd’s complaint is there any concession that thewarrant gained by the FBI agents was validly obtained.

Ginsburg notes a number of “omissions and misrepresentations” made in the affidavit given to the Magistrate Judge, and finds “there is strong cause to question the Court’s opening assumption—a valid material-witness warrant—and equally strong reason toconclude that a merits determination was neither necessary nor proper.”

Following this line is a footnote that takes up about 1.25 pages. After including a parenthetical string of about a dozen cases, noting that the Court has “uniformly used the term ‘individualized suspicion’ to mean ‘individualized suspicion of wrongdoing,’” she finds that the Court’s suggestion that the term “individualized suspicion” ismore commonly associated with “know[ing] something about [a] crime” . . . is hardly credible.”

The import of the term in legal argot is not genuinely debatable. When the evening news reports that a murder “suspect” is on the loose, the viewer is meant to be on the lookout for the perpetrator, not the witness. Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to “tak[e] suspected terrorists off the street.

Ginsburg writes further about the “harsh custodial conditions to which al-Kidd was subjected.”

In addition to the questions JUSTICE KENNEDY poses, and even if the initial material witness classification had been proper, what even arguably legitimate basis could there be for the harsh custodial conditions to which al-Kidd was subjected: Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days’ incarceration, kept in high-security cells lit 24 hours a day, stripsearched and subjected to body-cavity inspections on morethan one occasion, and handcuffed and shackled about his wrists, legs, and waist.

Contrast this with how Scalia described the detention:

Al-Kidd remained in federal custody for 16 days and on supervised release until al-Hussayen’s trial concluded 14 months later.

Keeping a glimmer of hope alive for al-Kidd’s claims, Ginsburg notes that claims against the FBI agents who detained him may be appropriate.

However circumscribed al-Kidd’s Bivens claim against Ashcroft may have been, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971); ante, at 8 (majority opinion); ante, at 1 (KENNEDY, J., concurring), his remaining claims against the FBI agents who apprehended him invite consideration of the issues JUSTICE KENNEDY identified.4 His challenges to the brutal conditions of his confinement have been settled. But his ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.

FN4- 4The District Court determined that al-Kidd’s factual allegations against FBI agents regarding their “misrepresentations and omissionsin the warrant application, if true, would negate the possibility ofqualified immunity [for those agents].” Memorandum Order in No. cv:05–093 (D Idaho, Sept. 27, 2006), p. 18. The agents took no appealfrom this threshold denial of their qualified immunity plea.

Justice Sotomayor’s Opinion Concurring in Judgment

Sotomayor does not join the majority’s opinion because “it unnecessarily “resolve[s] [a] difficult and novel questio[n] of constitutional . . . interpretation that will ‘have no effect on the outcome of the case.’ ” She focuses on whether the use of the material witness statute when the government has no intention of using the witness at trial.

Whether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is, in my view, a closer question than the majority’s opinion suggests. Although the majority is correct that a government official’s subjective intent is generally “irrelevant in determining whether that officer’s actions violate the Fourth Amendment,” Bond v. United States, 529 U. S. 334, 338, n. 2 (2000), none of our prior cases recognizing that principle involved prolonged detention of an individual without probable cause to believe he had committed any criminal offense. We have never considered whether an official’s subjective intent matters for purposes of the Fourth Amendment in that novel context, and we need not and should not resolve that question in this case.

Sotomayor, agreeing with Ginsburg, questions whether the warrant was validly obtained.

The majority’s constitutional ruling is a narrow one premised on the existence of a “valid material-witness warran[t],” ante, at 1—a premise that, at the very least, is questionable in light of the allegations set forth in al-Kidd’s complaint. Based on those allegations, it is not atall clear that it would have been “impracticable to secure[al-Kidd’s] presence . . . by subpoena” or that his testimony could not “adequately be secured by deposition.” . . . Nor is it clear that the affidavit supportingthe warrant was sufficient; its failure to disclose that the Government had no intention of using al-Kidd as a witness at trial may very well have rendered the affidavit deliberately false and misleading. . . . The majority assumes away these factual difficulties, but in my view, they point to the artificiality of the way the Fourth Amendment question has been presented to this Court and provide further reason to avoid rendering an unnecessary holding on the constitutional question.

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