Certiorari Granted in Material Witness Detention Case That Concerns the Iqbal Pleading Standard

Yesterday the Supreme Court granted certiorari in Ashcroft v. Al-Kidd, the petition in which the United States Department of Justice seeks to establish, on behalf of former Attorney General John Ashcroft,  that government officials have immunity from liability for claims that they used the material witness statute to detain a U.S. citizen, not, in reality, to ensure his availability as a witness in another case, but instead as a pretext for what was actually a preventative detention.

As the New York Times explains, the former detainee in question, Abdullah Al-Kidd, is a U.S. citizen born in Kansas as Lavoni A. Kidd; he was (I have read) a football star for the University of Idaho in the mid-90s.  In rejecting Ashcroft’s argument for immunity, the Ninth Circuit (in a split three-judge panel decision) first held that, at best, qualified immunity might apply, explaining its reasoning this way:

Ashcroft argues that an inquiry into purpose cannot be cabined: a prosecutor filing charges against a foot soldier in an organized crime syndicate, for example, might hope that the prospect of a lengthy incarceration will encourage the defendant to turn state’s evidence, permitting investigation of those higher in the organization. A wide-ranging investigation into such motives would likely prove unworkable. It is for that reason that the Supreme Court has spoken only of “immediate purpose.” Buckley, 509 U.S. at 275, 113 S.Ct. 2606 (emphasis added).

As a common law court, we can rule only on the case before us. We believe, however, that while the prosecutor who files charges may hope, eventually, that the petty crook will implicate his boss, the immediate purpose of filing charges is to begin a prosecution-the better to pressure the defendant into providing information.

We hold, therefore, that when 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.

With respect to qualified immunity, the Ninth Circuit majority held that the pleadings were sufficient to create a potentially valid claim, on the basis that Ashcroft could be liable even without “direct[] involve[ment]” in the detention because of other indicators of sufficient “personal involvement”:

Al-Kidd’s complaint does not allege that Ashcroft was directly involved in the decision to detain al-Kidd. But “direct, personal participation is not necessary to establish liability for a constitutional violation.” Id. Supervisors can be held liable for the actions of their subordinates (1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinates; or (4) for conduct that shows a “reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991) (internal quotation marks omitted). Any one of these bases will suffice to establish the personal involvement of the defendant in the constitutional violation.

The majority went on to explain its reasoning that the allegations were sufficient to support the claim that Mr. Al-Kidd’s “clearly established” rights were violated.

With respect to qualified immunity, the dissenting opinion argued just the opposite, that “The Supreme Court has flatly stated that pretextual searches and seizures conducted pursuant to a warrant issued upon objectively reasonable probable cause do not violate the Fourth Amendment. Nothing in the majority opinion provides any justification for departing from this rule. Attorney General Ashcroft is entitled to qualified immunity.”  Furthermore, the dissent would have found absolute immunity to apply.

While the case at first blush may seem to raise constitutional issues, as the Civil Procedure and Federal Courts blog and others note, it seems just as likely that the eventual opinion in Ashcroft v. Al-Kidd will instead turn on the Court’s holding with regard to whether Mr. Al-Kidd’s complaint states any “plausible” claim, sufficient to withstand dismissal.  It thus could be the third in the Twombly-Iqbal line of cases that is exploring or developing a “plausibility” standard in civil pleading.  Iqbal and its aftermath have been the subject of a number of posts on this blog, including this one by Rick Esenberg and another by student Jay Rabideaux.

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