Ashcroft v. al-Kidd: Official Immunity and Material Witnesses Before the Supreme Court

Charles Doyle
Senior Specialist in American Public Law

Public officials cannot be sued personally for injuries resulting from the performance of their duties. They lose this qualified immunity when the injuries resulted from their violation of clearly established law. In Ashcroft v. al-Kidd, the Supreme Court concluded that clearly established Fourth Amendment jurisprudence did not forbid the Attorney General from encouraging the use of the federal material witness statute as a pretext to detain and question a potential criminal suspect.

The Court left for another day several related issues. Does the material witness statute permit authorities to arrest, question, and detain an individual because he is criminal suspect rather than a witness? Is the material witness statute unconstitutional on its face? Does the Fourth Amendment permit recourse to the material witness statute in order to arrest, question, and detain an individual without probable cause to believe he has committed a crime? Does the absolute immunity that attends the performance of duties in a judicial environment apply? Are the absolute and qualified immunity standards the same for local prosecutors as for the Attorney General?

Al-Kidd was arrested on a federal material witness warrant. Federal law permits the arrest of a witness when there is probable cause to believe that he has evidence material in a judicial proceeding and may be unavailable when his testimony is needed. Arrest of a criminal suspect requires probable cause to believe that he has committed a crime. Al-Kidd sued the Attorney General alleging that, in the wake of the 9/11 attacks, the Justice Department had created and implemented a policy of arresting terrorist suspects without criminal probable cause by using the material witness statute as a subterfuge. The Attorney General moved to dismiss on grounds of absolute and qualified official immunity. Prosecutors are entitled to absolute immunity from suit for activities performed as officers of the court. They are entitled to no more than qualified immunity for activities performed as investigators. They are entitled to qualified immunity for the performance of their official duties, unless they violate a clearly established constitutional or statutory right.

The Ninth Circuit Court of Appeals held that: (1) prosecutors who use material witness warrants as an investigative tool are not entitled to absolute immunity; (2) prosecutors, who use such warrants without probable cause to believe the witness has committed a crime, violate the clearly established Fourth Amendment proscription on unreasonable searches and seizures; (3) prosecutors who do so are not entitled to qualified immunity; and (4) the same is true of senior officials who direct such misconduct.

Justice Scalia, writing for the Court, resolved the matter narrowly. He observed that in most instances, the Fourth Amendment reasonableness of an arrest is judged objectively. An otherwise reasonable arrest is ordinarily permissible regardless of the alleged motives of the arresting officers. Where there is probable cause for the arrest of a material witness, motive is irrelevant, and the arrest is reasonable by Fourth Amendment standards. Since the Attorney General thus did not instigate a clearly established violation of the Fourth Amendment as alleged, he was entitled to qualified immunity from suit.

Related reports include CRS Report R41903, Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144, by Charles Doyle. .


Date of Report: July 1, 2011
Number of Pages: 17
Order Number: R41904
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.