Al-Kidd v. Ashcroft (UPDATED)

Bivens action against John Ashcroft; litigated by ACLU; innocent American detained on bogus material witness warrant; prosecutorial immunity; qualified immunity; etc.  Lots of stuff going on in this 91-page monster, which I haven't had time to read yet.  Al-Kidd v. Ashcroft is available here.  Only time for a few quick notes, as I'm on the road:

Al-Kidd asserts three independent claims against Ashcroft. First, he alleges that Ashcroft is responsible for a policy or practice under which the FBI and the DOJ sought material witness orders without sufficient evidence that the witness’s testimony was material to another proceeding, or that it was impracticable to secure the witness’s testimony—in other words, in violation of the express terms of § 3144 itself—and that al-Kidd was arrested as a result of this policy (the § 3144Claim). Second, al-Kidd alleges that Ashcroft designed and implemented a policy under which the FBI and DOJ wouldarrest individuals who may have met the facial statutory requirements of § 3144, but with the ulterior and allegedly unconstitutional purpose of investigating or preemptively detaining them, in violation of the Fourth Amendment (the Fourth Amendment Claim). Finally, al-Kidd alleges that Ashcroft designed and implemented policies, or was aware of policies and practices that he failed to correct, under which material witnesses were subjected to unreasonably punitive conditions of confinement, in violation of the Fifth Amendment (the Conditions of Confinement Claim).
Ashcroft argues that he is entitled to absolute prosecutorial immunity as to the § 3144 and Fourth Amendment Claims. He concedes that no absolute immunity attaches with respect to the Conditions of Confinement Claim. He also argues that he is entitled to qualified immunity from liability for all three claims. 
Holding: No prosecutorial immunity for seeking a material witness warrant: "We hold, therefore, that when a prosecutor seeks amaterial witness warrant in order to investigate or preemptivelydetain a suspect, rather than to secure his testimony atanother’s trial, the prosecutor is entitled at most to qualified,rather than absolute, immunity."  Slip op. at 12290.

Good summary of supervisory liability on page 12294.  Holding: Ashcroft may be held liable under a supervisory liability theory.  Further: No qualified immunity for Ashcroft on the material witness/Fourth Amendment claim, as "We have previously held that material witness arrests are “seizures”within the meaning of the Fourth Amendment and aretherefore subject to its reasonableness requirement. Bacon v.United States, 449 F.2d 933, 942 (9th Cir. 1971)."

UPDATE: The New York Times has a report here.  Cheryl Miller of The Recorder has this article.

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