Ashcroft v. Al-Kidd

Decision Date31 May 2011
Docket NumberNo. 10–98.,10–98.
Citation131 S.Ct. 2074,179 L.Ed.2d 1149,563 U.S. 731
Parties John D. ASHCROFT, Petitioner, v. Abdullah AL–KIDD.
CourtU.S. Supreme Court

Neal Kumar Katyal, Acting Solicitor General, Washington, DC, for petitioner.

Lee Gelernt, New York, NY, for respondent.

Justice Kagan recused.

Neal Kumar Katyal, Acting Solicitor General, Counsel of Record Department of Justice, Washington, DC, for Petitioner.

Michael J. Wishnie, New Haven, CT, Cynthia J. Woolley, The Law Offices of Cynthia J. Woolley, PLLC, Ketchum, ID, Patrick C. Toomey, Lankler Siffert & Wohl LLP, New York, NY, R. Keith Roark, The Roark Law Firm, LLP, Hailey, ID, Lee Gelernt, Counsel of Record, Steven R. Shapiro, Lucas Guttentag, Tanaz Moghadam, Michael K.T. Tan, American Civil Liberties Union Foundation, New York, NY, Katherine Desormeau, American

Civil Liberties Union Foundation, San Francisco, CA, Lea Cooper, American Civil Liberties Union Foundation of Idaho, Boise, ID, for Respondent.

Neal Kumar Katyal, Acting Solicitor General, Counsel of Record, Tony West, Assistant Attorney General, Leondra R. Kruger, Acting Deputy Solicitor General, Eric D. Miller, Assistant to the Solicitor General, Robert M. Loeb, Matthew M. Collette, Attorneys, Department of Justice, Washington, DC, for Petitioner.

Justice SCALIA delivered the opinion of the Court.

We 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.


The federal material-witness statute authorizes judges to "order the arrest of [a] person" whose testimony "is material in a criminal proceeding ... if it is shown that it may become impracticable to secure the presence of the person by subpoena." 18 U.S.C. § 3144. Material witnesses enjoy the same constitutional right to pretrial release as other federal detainees, and federal law requires release if their testimony "can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice." Ibid.

Because this case arises from a motion to dismiss, we accept as true the factual allegations in Abdullah al-Kidd's complaint. The complaint alleges that, in the aftermath of the September 11th terrorist attacks, then-Attorney General John Ashcroft authorized federal prosecutors and law enforcement officials to use the material-witness statute to detain individuals with suspected ties to terrorist organizations. It is alleged that federal officials had no intention of calling most of these individuals as witnesses, and that they were detained, at Ashcroft's direction, because federal officials suspected them of supporting terrorism but lacked sufficient evidence to charge them with a crime.

It is alleged that this pretextual detention policy led to the material-witness arrest of al-Kidd, a native-born United States citizen. FBI agents apprehended him in March 2003 as he checked in for a flight to Saudi Arabia. Two days earlier, federal officials had informed a Magistrate Judge that, if al-Kidd boarded his flight, they believed information "crucial" to the prosecution of Sami Omar al-Hussayen would be lost. App. 64. Al–Kidd remained in federal custody for 16 days and on supervised release until al-Hussayen's trial concluded 14 months later. Prosecutors never called him as a witness.

In March 2005, al-Kidd filed this Bivens action, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) to challenge the constitutionality of Ashcroft's alleged policy; he also asserted several other claims not relevant here against Ashcroft and others. Ashcroft filed a motion to dismiss based on absolute and qualified immunity, which the District Court denied. A divided panel of the United States Court of Appeals for the Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity. See 580 F.3d 949 (2009).

Judge Bea dissented, 580 F.3d, at 981, and eight judges dissented from the denial of rehearing en banc, see 598 F.3d 1129, 1137, 1142 (C.A.9 2010). We granted certiorari, see 562 U.S. ––––, 131 S.Ct. 415, 178 L.Ed.2d 321 (2010).


Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was "clearly established" at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). We recently reaffirmed that lower courts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

Courts should think carefully before expending "scarce judicial resources" to resolve difficult and novel questions of constitutional or statutory interpretation that will "have no effect on the outcome of the case." Id., at 236–237, 129 S.Ct. 808; see id., at 237–242, 129 S.Ct. 808. When, however, a Court of Appeals does address both prongs of qualified-immunity analysis, we have discretion to correct its errors at each step. Although not necessary to reverse an erroneous judgment, doing so ensures that courts do not insulate constitutional decisions at the frontiers of the law from our review or inadvertently undermine the values qualified immunity seeks to promote. The former occurs when the constitutional-law question is wrongly decided; the latter when what is not clearly established is held to be so. In this case, the Court of Appeals' analysis at both steps of the qualified-immunity inquiry needs correction.


The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." An arrest, of course, qualifies as a "seizure" of a "person" under this provision, Dunaway v. New York, 442 U.S. 200, 207–208, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and so must be reasonable under the circumstances. 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.

Fourth Amendment reasonableness "is predominantly an objective inquiry." Edmond, supra, at 47, 121 S.Ct. 447. We ask whether "the circumstances, viewed objectively, justify [the challenged] action." Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). If so, that action was reasonable "whatever the subjective intent" motivating the relevant officials. Whren v. United States, 517 U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). This approach recognizes that the Fourth Amendment regulates conduct rather than thoughts, Bond v. United States, 529 U.S. 334, 338, n. 2, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) ; and it promotes evenhanded, uniform enforcement of the law, Devenpeck v. Alford, 543 U.S. 146, 153–154, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).

Two "limited exception[s]" to this rule are our special-needs and administrative-search cases, where "actual motivations" do matter. United States v. Knights,

534 U.S. 112, 122, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (internal quotation marks omitted). A judicial warrant and probable cause are not needed where the search or seizure is justified by "special needs, beyond the normal need for law enforcement," such as the need to deter drug use in public schools, Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (internal quotation marks omitted), or the need to assure that railroad employees engaged in train operations are not under the influence of drugs or alcohol, Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ; and where the search or seizure is in execution of an administrative warrant authorizing, for example, an inspection of fire-damaged premises to determine the cause, Michigan v. Clifford, 464 U.S. 287, 294, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984) (plurality opinion), or an inspection of residential premises to assure compliance with a housing code, Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 535–538, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). But those exceptions do not apply where the officer's purpose is not to attend to the special needs or to the investigation for which the administrative inspection is justified. See Whren, supra, at 811–812, 116 S.Ct. 1769. The Government seeks to justify the present arrest on the basis of a properly issued judicial warrant—so that the special-needs and administrative-inspection cases cannot be the basis for a purpose inquiry here.

Apart from those cases, we have almost uniformly rejected invitations to probe subjective intent. See Brigham City v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). There is one category of exception, upon which the Court of Appeals principally relied. In Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333, we held that the Fourth Amendment could not condone suspicionless vehicle checkpoints set up for the purpose of detecting illegal narcotics. Although we had previously approved vehicle checkpoints set up for the purpose of keeping off the road unlicensed drivers, Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), or alcohol-impaired drivers, Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) ; and for the purpose of interdicting those who...

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