580 F.3d 949 (9th Cir. 2009), 06-36059, al-Kidd v. Ashcroft

Docket Nº:06-36059.
Citation:580 F.3d 949
Opinion Judge:MILAN D. SMITH, JR., Circuit Judge:
Party Name:Abdullah al-KIDD, Plaintiff-Appellee, v. John ASHCROFT, Defendant-Appellant.
Attorney:Robert M. Loeb and Matthew M. Collette, Department of Justice, Civil Division, Washington, D.C., for the defendant-appellant. Lee Gelernt, Immigrants' Rights Project, American Civil Liberties Union, New York, NY, for the plaintiff-appellee. Alison M. Tucher, Morrison & Foerster, San Francisco, CA...
Judge Panel:Before: DAVID R. THOMPSON, CARLOS T. BEA, and MILAN D. SMITH, JR., Circuit Judges. Opinion by Judge MILAN D. SMITH, JR. Partial Concurrence and Partial Dissent by Judge BEA. BEA, Circuit Judge, concurring in part and dissenting in part:
Case Date:September 04, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 949

580 F.3d 949 (9th Cir. 2009)

Abdullah al-KIDD, Plaintiff-Appellee,

v.

John ASHCROFT, Defendant-Appellant.

No. 06-36059.

United States Court of Appeals, Ninth Circuit.

September 4, 2009

Argued April 8, 2008.

Submitted May 18, 2009.

Page 950

[Copyrighted Material Omitted]

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Robert M. Loeb and Matthew M. Collette, Department of Justice, Civil Division, Washington, D.C., for the defendant-appellant.

Lee Gelernt, Immigrants' Rights Project, American Civil Liberties Union, New York, NY, for the plaintiff-appellee.

Alison M. Tucher, Morrison & Foerster, San Francisco, CA, for amici curiae Former Federal Prosecutors.

Leo P. Cunningham and Lee-Anne Mulholland, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA, for amici curiae National Association of Criminal Defense Lawyers and Human Rights Watch.

Appeal from the United States District Court for the District of Idaho, Edward J. Lodge, District Judge, Presiding. D.C. No. CV-05-00093-EJL.

Before: DAVID R. THOMPSON, CARLOS T. BEA, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge MILAN D. SMITH, JR. Partial Concurrence and Partial Dissent by Judge BEA.

MILAN D. SMITH, JR., Circuit Judge:

According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport's police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to

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Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home visits throughout the period of supervision. By the time al-Kidd's confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.

Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft (Ashcroft), subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, 18 U.S.C. § 3144, to investigate or preemptively detain him. Ashcroft asserts that he is entitled to absolute and qualified immunity against al-Kidd's claims. We hold that on the facts pled Ashcroft is not protected by either form of immunity, and we affirm in part and reverse in part the decision of the district court.

FACTS AND PROCEDURAL BACKGROUND1

A. al-Kidd

Plaintiff-Appellee al-Kidd was born Lavoni T. Kidd in Wichita, Kansas. While attending college at the University of Idaho, where he was a highly regarded running back on the University's football team, he converted to Islam and changed his name. In the spring and summer of 2002, he and his then-wife were the target of a Federal Bureau of Investigation (FBI) surveillance as part of a broad anti-terrorism investigation allegedly aimed at Arab and Muslim men. 2 No evidence of criminal activity by al-Kidd was ever discovered. Al-Kidd planned to fly to Saudi Arabia in the spring of 2003 to study Arabic and Islamic law on a scholarship at a Saudi university.

On February 13, 2003, a federal grand jury in Idaho indicted Sami Omar Al-Hussayen for visa fraud and making false statements to U.S. officials. On March 14, the Idaho U.S. Attorney's Office submitted an application to a magistrate judge of the District of Idaho, seeking al-Kidd's arrest as a material witness in the Al-Hussayen trial. Appended to the application was an affidavit by Scott Mace, a Special Agent of the FBI in Boise (the Mace Affidavit). The Mace Affidavit described two contacts al-Kidd had with Al-Hussayen: al-Kidd had received " in excess of $20,000" from Al-Hussayen (though the Mace Affidavit does not indicate what this payment was for), and al-Kidd had " met with Al-Hussayen's associates" after returning from a trip to Yemen. It also contained evidence of al-Kidd's contacts with officials of the Islamic Assembly of North America (IANA, an organization with which Al-Hussayen was affiliated),3 including one

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official " who was recently arrested in New York." It ended with the statement, " [d]ue to al-Kidd's demonstrated involvement with the defendant ... he is believed to be in possession of information germane to this matter which will be crucial to the prosecution." The Mace Affidavit did not elaborate on what " information" al-Kidd might have had, nor how his testimony might be " germane" -let alone " crucial" -to the prosecution of Al-Hussayen.

The affidavit further stated:

Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000) to Saudi Arabia on Sunday, March 16, 2003, at approximately 6:00 EST. He is scheduled to fly from Dulles International Airport to JFK International Airport in New York and then to Saudi Arabia.... It is believed that if al-Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.

In fact, al-Kidd had a round-trip, coach class ticket, costing approximately $1700. The Mace Affidavit omitted the facts that al-Kidd was a U.S. resident and citizen; that his parents, wife, and two children were likewise U.S. residents and citizens; and that he had previously cooperated with the FBI on several occasions when FBI agents asked to interview him. The magistrate judge issued the warrant the same day.

Pursuant to the material witness warrant, al-Kidd was arrested two days later at the ticket counter at Dulles International Airport. He was handcuffed and taken to the airport's police substation, where he was interrogated. Thereafter, he was detained for an aggregate of sixteen days at the Alexandria Detention Center in Virginia, the Oklahoma Federal Transfer Center, and the Ada County, Idaho, Jail. He was strip searched on multiple occasions and confined in the high-security unit of each facility. During transfer between facilities, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was allowed out of his cell only one to two hours each day, and his cell was kept lit twenty-four hours a day, unlike other cells in the high-security wing.

On March 31, after petitioning the court, al-Kidd was ordered released, on the conditions that he live with his wife at his in-laws' home in Nevada, limit his travel to Nevada and three other states, report regularly to a probation officer and consent to home visits throughout the period of supervision, and surrender his passport. After almost a year under these conditions, the court permitted al-Kidd to secure his own residence in Las Vegas, Nevada, as al-Kidd and his wife were separating. He lived under these conditions for three more months before being released at the end of Al-Hussayen's trial, more than fifteen months after being arrested.4 In

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July 2004, al-Kidd was fired from his job. He alleges he was terminated when he was denied a security clearance because of his arrest. He is now separated from his wife, and has been unable to find steady employment. He was also deprived of his chance to study in Saudi Arabia on scholarship.

Al-Kidd was never called as a witness in the Al-Hussayen trial or in any other criminal proceeding.

B. Ashcroft

Defendant-Appellant Ashcroft was Attorney General of the United States during the relevant time period. According to al-Kidd's complaint, following the September 11, 2001 terrorist attacks, Ashcroft developed and promulgated a policy by which the FBI and DOJ would use the federal material witness statute 5 as a pretext " to arrest and detain terrorism suspects about whom they did not have sufficient evidence to arrest on criminal charges but wished to hold preventatively or to investigate further." (Cited in, and emphasis added to, al-Kidd's complaint.)

To support this allegation, the complaint first quotes Ashcroft's own statement at a press briefing:

Today, I am announcing several steps that we are taking to enhance our ability to protect the United States from the threat of terrorist aliens. These measures form one part of the department's strategy to prevent terrorist attacks by taking suspected terrorists off the street ... Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.

John Ashcroft, Attorney General, Attorney General Ashcroft Outlines Foreign Terrorist Tracking Task Force (Oct. 31, 2001), available at http:// www. usdoj.gov/archive/ag/speeches/2001/agcrisisremarks10_31.htm (emphasis added in complaint). The complaint also cites internal DOJ memoranda quoted in a report by the DOJ's Office of the Inspector General (OIG Report),6 which describe the use of " aggressive arrest and detention tactics in the war on terror," OIG Report at 12, including the use of material witness warrants to confine aliens suspected of terrorist involvement, id. at 38-39, 75. The complaint

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also quotes the public statements of a number...

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