Ashcroft v. al-Kidd ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ASHCROFT v. AL-KIDD
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 10–98. Argued March 2, 2011—Decided May 31, 2011
Respondent al-Kidd alleges that, after the September 11th terrorist
attacks, then-Attorney General Ashcroft authorized federal officials
to detain terrorism suspects using the federal material-witness stat
ute, 18 U. S. C. §3144. He claims that this pretextual detention pol
icy led to his material-witness arrest as he was boarding a plane to
Saudi Arabia. To secure the warrant, federal officials had told a
Magistrate Judge that information “crucial” to Sami Omar al-
Hussayen’s prosecution would be lost if al-Kidd boarded his flight.
Prosecutors never called al-Kidd as a witness, and (as he alleges)
never meant to do so. Al-Kidd filed suit pursuant to Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U. S. 388, challenging the con
stitutionality of Ashcroft’s alleged policy. The District Court denied
Ashcroft’s motion to dismiss on absolute and qualified immunity
grounds. 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.
Held:
1. The objectively reasonable arrest and detention of a material
witness pursuant to a validly obtained warrant cannot be challenged
as unconstitutional on the basis of allegations that the arresting au
thority had an improper motive. Pp. 3–9.
(a) Qualified immunity shields a government official from money
damages unless (1) the official violated a statutory or constitutional
right, and (2) that right was “clearly established” at the time of the
challenged conduct. Harlow v. Fitzgerald, 457 U. S. 800, 818.
Where, as here, a court considers both prongs of this inquiry, this
2 ASHCROFT v. AL-KIDD
Syllabus
Court has the discretion to correct the lower court’s errors at each
step. P. 3.
(b) Whether a detention is reasonable under the Fourth Amend
ment “is predominantly an objective inquiry.” Indianapolis v. Ed
mond, 531 U. S. 32, 47. Courts ask whether “the circumstances,
viewed objectively, justify [the challenged] action.” Scott v. United
States, 436 U. S. 128, 138. Except for cases that involve special
needs, e.g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653, or
administrative searches, e.g., Michigan v. Clifford, 464 U. S. 287,
294, this Court has almost uniformly rejected invitations to probe
subjective intent. The Court of Appeals was mistaken in believing
that Edmond established that “ ‘programmatic purpose’ is relevant to
Fourth Amendment analysis of programs of seizures without prob
able cause.” 580 F. 3d 949, 968. It was not the absence of probable
cause that triggered Edmond’s invalidating-purpose inquiry, but the
checkpoints’ failure to be based on “individualized suspicion.” 531
U. S., at 47. Here a neutral Magistrate Judge issued a warrant au
thorizing al-Kidd’s arrest, and the affidavit accompanying the war
rant application gave individualized reasons to believe that he was a
material witness who would soon disappear. A warrant based on in
dividualized suspicion grants more protection than existed in most of
this Court’s cases eschewing inquiries into intent, e.g., Whren v.
United States, 517 U. S. 806, 813, and Terry v. Ohio, 392 U. S. 1, 21–
22. Al-Kidd’s contrary, narrow reading of those cases is rejected. Be
cause he concedes that individualized suspicion supported the issu
ance of the material-witness arrest warrant; and does not assert that
his arrest would have been unconstitutional absent the alleged pre
text; there is no Fourth Amendment violation here. Pp. 3–9.
2. Ashcroft did not violate clearly established law and thus is enti
tled to qualified immunity. A Government official’s conduct violates
clearly established law when, at the time of the challenged conduct,
“[t]he contours of [a] right [are] sufficiently clear” that every “reason
able official would have understood that what he is doing violates
that right.” Anderson v. Creighton, 483 U. S. 635, 640. Here, the as
serted constitutional right falls far short of that threshold. At the
time of al-Kidd’s arrest, not a single judicial opinion had held that
pretext could render an objectively reasonable arrest pursuant to a
material-witness warrant unconstitutional. The Ninth Circuit’s reli
ance on a District Court’s footnoted dictum, irrelevant cases from this
Court, and the Fourth Amendment’s broad purposes and history is
rejected. Because Ashcroft did not violate clearly established law, the
question whether he enjoys absolute immunity need not be ad
dressed. Pp. 9–12.
580 F. 3d 949, reversed and remanded.
Cite as: 563 U. S. ____ (2011) 3
Syllabus
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed
a concurring opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ.,
joined as to Part I. GINSBURG, J., filed an opinion concurring in the
judgment, in which BREYER and SOTOMAYOR, JJ., joined. SOTOMAYOR,
J., filed an opinion concurring in the judgment, in which GINSBURG and
BREYER, JJ., joined. KAGAN, J., took no part in the consideration or de
cision of the case.
Cite as: 563 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–98
_________________
JOHN D. ASHCROFT, PETITIONER v. ABDULLAH
AL-KIDD
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 31, 2011]
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 other
wise lack probable cause to arrest.
I
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 wit
nesses enjoy the same constitutional right to pretrial
release as other federal detainees, and federal law re
quires release if their testimony “can adequately be
secured by deposition, and if further detention is not nec
essary 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 Gen
2 ASHCROFT v. AL-KIDD
Opinion of the Court
eral John Ashcroft authorized federal prosecutors and law
enforcement officials to use the material-witness statute to
detain individuals with suspected ties to terrorist organi
zations. 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 fed
eral 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 Magis
trate Judge that, if al-Kidd boarded his flight, they be
lieved information “crucial” to the prosecution of Sami
Omar al-Hussayen would be lost. App. 64. Al-Kidd re
mained 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 (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 immu
nity, 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 (CA9 2010). We granted certiorari,
see 562 U. S. ___ (2010).
Cite as: 563 U. S. ____ (2011)
3
Opinion of the Court
II
Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts show
ing (1) that the official violated a statutory or constitu
tional right, and (2) that the right was “clearly estab
lished” at the time of the challenged conduct. Harlow v.
Fitzgerald, 457 U. S. 800, 818 (1982). We recently reaf
firmed 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 (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; see
id., at 237–242. 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 deci
sions at the frontiers of the law from our review or inad
vertently 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.
A
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 (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
4 ASHCROFT v. AL-KIDD
Opinion of the Court
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. We ask
whether “the circumstances, viewed objectively, justify
[the challenged] action.” Scott v. United States, 436 U. S.
128, 138 (1978). If so, that action was reasonable “what
ever the subjective intent” motivating the relevant offi
cials. Whren v. United States, 517 U. S. 806, 814 (1996).
This approach recognizes that the Fourth Amendment
regulates conduct rather than thoughts, Bond v. United
States, 529 U. S. 334, 338, n. 2 (2000); and it promotes
evenhanded, uniform enforcement of the law, Devenpeck v.
Alford, 543 U. S. 146, 153–154 (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 (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 (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 (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 (1984) (plurality opinion), or
an inspection of residential premises to assure compliance
with a housing code, Camara v. Municipal Court of City
Cite as: 563 U. S. ____ (2011) 5
Opinion of the Court
and County of San Francisco, 387 U. S. 523, 535–538
(1967). But those exceptions do not apply where the offi
cer’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. The Government
seeks to justify the present arrest on the basis of a prop
erly 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 re
jected invitations to probe subjective intent. See Brigham
City v. Stuart, 547 U. S. 398, 404 (2006). There is one
category of exception, upon which the Court of Appeals
principally relied. In Edmond, 531 U. S. 32, 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 (1979), or alcohol-impaired drivers, Michigan
Dept. of State Police v. Sitz, 496 U. S. 444 (1990); and for
the purpose of interdicting those who illegally cross the
border, United States v. Martinez-Fuerte, 428 U. S. 543(1976); we found the drug-detection purpose in Edmond
invalidating because it was “ultimately indistinguishable
from the general interest in crime control,” 531 U. S., at
44. In the Court of Appeals’ view, Edmond established
that “ ‘programmatic purpose’ is relevant to Fourth
Amendment analysis of programs of seizures without
probable cause.” 580 F. 3d, at 968.
That was mistaken. It was not the absence of probable
cause that triggered the invalidating-purpose inquiry in
Edmond. To the contrary, Edmond explicitly said that it
would approve checkpoint stops for “general crime control
purposes” that were based upon merely “some quantum of
individualized suspicion.” 531 U. S., at 47. Purpose was
6 ASHCROFT v. AL-KIDD
Opinion of the Court
relevant in Edmond because “programmatic purposes may
be relevant to the validity of Fourth Amendment intru
sions undertaken pursuant to a general scheme without
individualized suspicion,” id., at 45–46 (emphasis added).1
Needless to say, warrantless, “suspicionless intrusions
pursuant to a general scheme,” id., at 47, are far removed
from the facts of this case. A warrant issued by a neutral
Magistrate Judge authorized al-Kidd’s arrest. The affida
vit accompanying the warrant application (as al-Kidd
concedes) gave individualized reasons to believe that he
was a material witness and that he would soon disappear.
The existence of a judicial warrant based on individualized
suspicion takes this case outside the domain of not only
our special-needs and administrative-search cases, but of
Edmond as well.
A warrant based on individualized suspicion2 in fact
grants more protection against the malevolent and the
incompetent than existed in most of our cases eschewing
inquiries into intent. In Whren, 517 U. S., at 813, and
Devenpeck, 543 U. S., at 153, we declined to probe the
motives behind seizures supported by probable cause but
lacking a warrant approved by a detached magistrate.
——————
1 The Court of Appeals also relied upon Ferguson v. Charleston, 532
U. S. 67 (2001), which held unconstitutional a program of mandatory
drug testing of maternity patients. Like Edmond, that case involved a
general scheme of searches without individualized suspicion. 532 U. S.,
at 77, n. 10.
2 JUSTICE GINSBURG suggests that our use of the word “suspicion” is
peculiar because that word “ordinarily” means “that the person sus
pected has engaged in wrongdoing.” Post, at 3, n. 2 (opinion concurring
in judgment). We disagree. No usage of the word is more common and
idiomatic than a statement such as “I have a suspicion he knows
something about the crime,” or even “I have a suspicion she is throwing
me a surprise birthday party.” The many cases cited by JUSTICE
GINSBURG, post, at 3, n. 2, which use the neutral word “suspicion” in
connection with wrongdoing, prove nothing except that searches and
seizures for reasons other than suspected wrongdoing are rare.
Cite as: 563 U. S. ____ (2011) 7
Opinion of the Court
Terry v. Ohio, 392 U. S. 1, 21–22 (1968), and Knights, 534
U. S., at 121–122, applied an objective standard to war
rantless searches justified by a lesser showing of reason
able suspicion. We review even some suspicionless
searches for objective reasonableness. See Bond, 529
U. S., at 335–336, 338, n. 2. If concerns about improper
motives and pretext do not justify subjective inquiries in
those less protective contexts, we see no reason to adopt
that inquiry here.
Al-Kidd would read our cases more narrowly. He as
serts that Whren establishes that we ignore subjective
intent only when there exists “probable cause to believe
that a violation of law has occurred,” 517 U. S., at 811—
which was not the case here. That is a distortion of Whren.
Our unanimous opinion held that we would not look
behind an objectively reasonable traffic stop to determine
whether racial profiling or a desire to investigate other
potential crimes was the real motive. See id., at 810, 813.
In the course of our analysis, we dismissed Whren’s
reliance on our inventory-search and administrative
inspection cases by explaining that those cases do not
“endors[e] the principle that ulterior motives can invali
date police conduct that is justifiable on the basis of prob
able cause to believe that a violation of law has occurred,”
id., at 811 But to say that ulterior motives do not in
validate a search that is legitimate because of probable
cause to believe a crime has occurred is not to say that it
does invalidate all searches that are legitimate for other
reasons.
“[O]nly an undiscerning reader,” ibid., would think
otherwise. We referred to probable cause to believe that a
violation of law had occurred because that was the legiti
mating factor in the case at hand. But the analysis of
our opinion swept broadly to reject inquiries into motive
generally. See id., at 812–815. We remarked that our
special-needs and administrative-inspection cases are un
8 ASHCROFT v. AL-KIDD
Opinion of the Court
usual in their concern for pretext, and do nothing more
than “explain that the exemption from the need for prob
able cause (and warrant), which is accorded to searches
made for the purpose of inventory or administrative regu
lation, is not accorded to searches that are not made for
those purposes,” id., at 811–812. And our opinion empha
sized that we had at that time (prior to Edmond) rejected
every request to examine subjective intent outside the
narrow context of special needs and administrative inspec
tions. See 517 U. S., at 812. Thus, al-Kidd’s approach
adds an “only” to a sentence plucked from the Whren
opinion, and then elevates that sentence (as so revised)
over the remainder of the opinion, and over the consistent
holdings of our other cases.
Because al-Kidd concedes that individualized suspicion
supported the issuance of the material-witness arrest
warrant; and does not assert that his arrest would have
been unconstitutional absent the alleged pretextual use of
the warrant; we find no Fourth Amendment violation.3
Efficient4 and evenhanded application of the law demands
——————
3 The
concerns of JUSTICES GINSBURG and SOTOMAYOR about the valid
ity of the warrant in this case are beside the point. See post, at 1–2
(GINSBURG, J., concurring in judgment); post, at 2 (SOTOMAYOR, J.,
concurring in judgment). The validity of the warrant is not our “open
ing assumption,” post, at 2 (GINSBURG, J., concurring in judgment); it is
the premise of al-Kidd’s argument. Al-Kidd does not claim that
Ashcroft is liable because the FBI agents failed to obtain a valid war
rant. He takes the validity of the warrant as a given, and argues that
his arrest nevertheless violated the Constitution because it was moti
vated by an illegitimate purpose. His separate Fourth Amendment and
statutory claims against the FBI agents who sought the material
witness warrant, which are the focus of both concurrences, are not
before us.
4 We may note in passing that al-Kidd alleges that the Attorney Gen
eral authorized the use of material-witness warrants for detention of
suspected terrorists, but not that he forbade the use of those warrants
to detain material witnesses. Which means that if al-Kidd’s inquiry
into actual motive is accepted, mere determination that the Attorney
Cite as: 563 U. S. ____ (2011) 9
Opinion of the Court
that we look to whether the arrest is objectively justified,
rather than to the motive of the arresting officer.
B
A Government official’s conduct violates clearly estab
lished law when, at the time of the challenged conduct,
“[t]he contours of [a] right [are] sufficiently clear” that
every “reasonable official would have understood that
what he is doing violates that right.” Anderson v. Creigh
ton, 483 U. S. 635, 640 (1987). We do not require a case
directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.
See ibid.; Malley v. Briggs, 475 U. S. 335, 341 (1986). The
constitutional question in this case falls far short of that
threshold.
At the time of al-Kidd’s arrest, not a single judicial
opinion had held that pretext could render an objectively
reasonable arrest pursuant to a material-witness warrant
unconstitutional. A district-court opinion had suggested,
in a footnoted dictum devoid of supporting citation, that
using such a warrant for preventive detention of suspects
“is an illegitimate use of the statute”—implying (we accept
for the sake of argument) that the detention would there
fore be unconstitutional. United States v. Awadallah, 202
F. Supp. 2d 55, 77, n. 28 (SDNY 2002). The Court of
Appeals thought nothing could “have given John Ashcroft
fair[er] warning” that his conduct violated the Fourth
Amendment, because the footnoted dictum “call[ed] out
Ashcroft by name”! 580 F. 3d, at 972–973 (internal quota
tion marks omitted; emphasis added). We will indulge the
assumption (though it does not seem to us realistic) that
Justice Department lawyers bring to the Attorney Gen
——————
General promulgated the alleged policy would not alone decide the case.
Al-Kidd would also have to prove that the officials who sought his
material-arrest warrant were motivated by Ashcroft’s policy, not by a
desire to call al-Kidd as a witness.
10 ASHCROFT v. AL-KIDD
Opinion of the Court
eral’s personal attention all district judges’ footnoted
speculations that boldly “call him out by name.” On that
assumption, would it prove that for him (and for him
only?) it became clearly established that pretextual use of
the material-witness statute rendered the arrest unconsti
tutional? An extraordinary proposition. Even a district
judge’s ipse dixit of a holding is not “controlling authority”
in any jurisdiction, much less in the entire United States;
and his ipse dixit of a footnoted dictum falls far short of
what is necessary absent controlling authority: a robust
“consensus of cases of persuasive authority.” Wilson v.
Layne, 526 U. S. 603, 617 (1999).
The Court of Appeals’ other cases “clearly establishing”
the constitutional violation are, of course, those we re
jected as irrelevant in our discussion of whether there was
any constitutional violation at all. And the Court of Ap
peals’ reference to those cases here makes the same error
of assuming that purpose is only disregarded when there
is probable cause to suspect a violation of law.
The Court of Appeals also found clearly established law
lurking in the broad “history and purposes of the Fourth
Amendment.” 580 F. 3d, at 971. We have repeatedly told
courts—and the Ninth Circuit in particular, see Brosseau
v. Haugen, 543 U. S. 194, 198–199 (2004) (per curiam)—
not to define clearly established law at a high level of
generality. See also, e.g., Wilson, supra, at 615; Anderson,
supra, at 639–640; cf. Sawyer v. Smith, 497 U. S. 227, 236
(1990). The general proposition, for example, that an
unreasonable search or seizure violates the Fourth
Amendment is of little help in determining whether the
violative nature of particular conduct is clearly estab
lished. See Saucier v. Katz, 533 U. S. 194, 201–202 (2001);
Wilson, supra, at 615.
The same is true of the Court of Appeals’ broad histori
cal assertions. The Fourth Amendment was a response to
the English Crown’s use of general warrants, which often
Cite as: 563 U. S. ____ (2011) 11
Opinion of the Court
allowed royal officials to search and seize whatever and
whomever they pleased while investigating crimes or
affronts to the Crown. See Stanford v. Texas, 379 U. S.
476, 481–485 (1965). According to the Court of Appeals,
Ashcroft should have seen that a pretextual warrant
similarly “gut[s] the substantive protections of the Fourth
Amendmen[t]” and allows the State “to arrest upon the
executive’s mere suspicion.” 580 F. 3d, at 972.
Ashcroft must be forgiven for missing the parallel,
which escapes us as well. The principal evil of the general
warrant was addressed by the Fourth Amendment’s par
ticularity requirement, Stanford, supra, at 485, which
Ashcroft’s alleged policy made no effort to evade. The
warrant authorizing al-Kidd’s arrest named al-Kidd and
only al-Kidd. It might be argued, perhaps, that when, in
response to the English abuses, the Fourth Amendment
said that warrants could only issue “on probable cause” it
meant only probable cause to suspect a violation of law,
and not probable cause to believe that the individual
named in the warrant was a material witness. But that
would make all arrests pursuant to material-witness
warrants unconstitutional, whether pretextual or not—
and that is not the position taken by al-Kidd in this case.
While featuring a District Court’s footnoted dictum, the
Court of Appeals made no mention of this Court’s affirma
tion in Edmond of the “predominan[t]” rule that reason
ableness is an objective inquiry, 531 U. S., at 47. Nor did it
mention Whren’s and Knights’ statements that subjective
intent mattered in a very limited subset of our Fourth
Amendment cases; or Terry’s objective evaluation of inves
tigatory searches premised on reasonable suspicion rather
than probable cause; or Bond’s objective evaluation of a
suspicionless investigatory search. The Court of Appeals
seems to have cherry-picked the aspects of our opinions
that gave colorable support to the proposition that the un
constitutionality of the action here was clearly established.
12 ASHCROFT v. AL-KIDD
Opinion of the Court
Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about
open legal questions. When properly applied, it protects
“all but the plainly incompetent or those who knowingly
violate the law.” Malley, 475 U. S., at 341. Ashcroft de
serves neither label, not least because eight Court of
Appeals judges agreed with his judgment in a case of first
impression. See Wilson, supra, at 618. He deserves quali
fied immunity even assuming—contrafactually—that his
alleged detention policy violated the Fourth Amendment.
* * *
We hold that an objectively reasonable arrest and deten
tion of a material witness pursuant to a validly obtained
warrant cannot be challenged as unconstitutional on the
basis of allegations that the arresting authority had an
improper motive. Because Ashcroft did not violate clearly
established law, we need not address the more difficult
question whether he enjoys absolute immunity. The
judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE KAGAN took no part in the consideration or
decision of this case.
Cite as: 563 U. S. ____ (2011) 1
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–98
_________________
JOHN D. ASHCROFT, PETITIONER v. ABDULLAH
AL-KIDD
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 31, 2011]
JUSTICE KENNEDY, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE SOTOMAYOR join as to Part
I, concurring.
I join the opinion of the Court in full. In holding that
the Attorney General could be liable for damages based on
an unprecedented constitutional rule, the Court of Appeals
for the Ninth Circuit disregarded the purposes of the doc
trine of qualified immunity. This concurring opinion makes
two additional observations.
I
The Court’s holding is limited to the arguments pre
sented by the parties and leaves unresolved whether the
Government’s use of the Material Witness Statute in this
case was lawful. See ante, at 8 (noting that al-Kidd “does
not assert that his arrest would have been unconstitu
tional absent the alleged pretextual use of the warrant”).
Under the statute, a Magistrate Judge may issue a war
rant to arrest someone as a material witness upon a show
ing by affidavit that “the testimony of a person is material
in a criminal proceeding” and “that it may become imprac
ticable to secure the presence of the person by subpoena.”
18 U. S. C. §3144. The scope of the statute’s lawful
authorization is uncertain. For example, a law-abiding
citizen might observe a crime during the days or weeks
2 ASHCROFT v. AL-KIDD
KENNEDY, J., concurring
before a scheduled flight abroad. It is unclear whether
those facts alone might allow police to obtain a material
witness warrant on the ground that it “may become im
practicable” to secure the person’s presence by subpoena.
Ibid. The question becomes more difficult if one further
assumes the traveler would be willing to testify if asked;
and more difficult still if one supposes that authorities
delay obtaining or executing the warrant until the traveler
has arrived at the airport. These possibilities resemble
the facts in this case. See ante, at 2.
In considering these issues, it is important to bear in
mind that the Material Witness Statute might not provide
for the issuance of warrants within the meaning of the
Fourth Amendment’s Warrant Clause. The typical arrest
warrant is based on probable cause that the arrestee has
committed a crime; but that is not the standard for the
issuance of warrants under the Material Witness Statute.
See ante, at 11 (reserving the possibility that probable
cause for purposes of the Fourth Amendment’s Warrant
Clause means “only probable cause to suspect a violation
of law”). If material witness warrants do not qualify as
“Warrants” under the Fourth Amendment, then material
witness arrests might still be governed by the Fourth
Amendment’s separate reasonableness requirement for
seizures of the person. See United States v. Watson, 423
U. S. 411 (1976). Given the difficulty of these issues, the
Court is correct to address only the legal theory put before
it, without further exploring when material witness ar
rests might be consistent with statutory and constitutional
requirements.
II
The fact that the Attorney General holds a high office in
the Government must inform what law is clearly estab
lished for the purposes of this case. Mitchell v. Forsyth,
472 U. S. 511, 525 (1985). Some federal officers perform
Cite as: 563 U. S. ____ (2011) 3
KENNEDY, J., concurring
their functions in a single jurisdiction, say within the con
fines of one State or one federal judicial district. They
“reasonably can anticipate when their conduct may give
rise to liability for damages” and so are expected to adjust
their behavior in accordance with local precedent. Davis
v. Scherer, 468 U. S. 183, 195 (1984); see also Anderson v.
Creighton, 483 U. S. 635, 639–640 (1987). In contrast the
Attorney General occupies a national office and so sets
policies implemented in many jurisdictions throughout the
country. The official with responsibilities in many juris
dictions may face ambiguous and sometimes inconsistent
sources of decisional law. While it may be clear that one
Court of Appeals has approved a certain course of conduct,
other Courts of Appeals may have disapproved it, or at
least reserved the issue.
When faced with inconsistent legal rules in different
jurisdictions, national officeholders should be given some
deference for qualified immunity purposes, at least if they
implement policies consistent with the governing law of
the jurisdiction where the action is taken. As we have
explained, qualified immunity is lost when plaintiffs point
either to “cases of controlling authority in their jurisdic
tion at the time of the incident” or to “a consensus of cases
of persuasive authority such that a reasonable officer
could not have believed that his actions were lawful.”
Wilson v. Layne, 526 U. S. 603, 617 (1999); see also ante,
at 9–10. These standards ensure the officer has “fair and
clear warning” of what the Constitution requires. United
States v. Lanier, 520 U. S. 259, 271 (1997).
A national officeholder intent on retaining qualified
immunity need not abide by the most stringent standard
adopted anywhere in the United States. And the national
officeholder need not guess at when a relatively small set
of appellate precedents have established a binding legal
rule. If national officeholders were subject to personal
liability whenever they confronted disagreement among
4 ASHCROFT v. AL-KIDD
KENNEDY, J., concurring
appellate courts, those officers would be deterred from full
use of their legal authority. The consequences of that
deterrence must counsel caution by the Judicial Branch,
particularly in the area of national security. See Ashcroft
v. Iqbal, 556 U. S. ___, ___ (2009) (slip op., at 21). Fur
thermore, too expansive a view of “clearly established law”
would risk giving local judicial determinations the effect of
rules with de facto national significance, contrary to the
normal process of ordered appellate review.
The proceedings in this case illustrate these concerns.
The Court of Appeals for the Ninth Circuit appears to
have reasoned that a Federal District Court sitting in New
York had authority to establish a legal rule binding on
the Attorney General and, therefore, on federal law
enforcement operations conducted nationwide. See 580
F. 3d 949, 972–973 (2009). Indeed, this case involves a
material witness warrant issued in Boise, Idaho, and an
arrest near Washington, D. C. Of course, district court
decisions are not precedential to this extent. Ante, at 9–
10. But nationwide security operations should not have to
grind to a halt even when an appellate court finds those
operations unconstitutional. The doctrine of qualified
immunity does not so constrain national officeholders
entrusted with urgent responsibilities.
Cite as: 563 U. S. ____ (2011) 1
GINSBURG, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–98
_________________
JOHN D. ASHCROFT, PETITIONER v. ABDULLAH
AL-KIDD
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 31, 2011]
JUSTICE GINSBURG, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join, concurring in the judgment.
Is a former U. S. Attorney General subject to a suit for
damages on a claim that he instructed subordinates to
use the Material Witness Statute, 18 U. S. C. §3144, as a
pretext to detain terrorist suspects preventively? Given
Whren v. United States, 517 U. S. 806 (1996), I agree with
the Court that no “clearly established law” renders
Ashcroft answerable in damages for the abuse of authority
al-Kidd charged. Ante, at 12. But I join JUSTICE
SOTOMAYOR in objecting to the Court’s disposition of al-
Kidd’s Fourth Amendment claim on the merits; as she
observes, post, at 1 (opinion concurring in judgment), that
claim involves novel and trying questions that will “have
no effect on the outcome of th[is] case.” Pearson v. Calla
han, 555 U. S. 223, 236–237 (2009).
In addressing al-Kidd’s Fourth Amendment claim
against Ashcroft, the Court assumes at the outset the
existence of a validly obtained material witness warrant.
Ante, at 1, 12. That characterization is puzzling. See post,
at 2 (opinion of SOTOMAYOR, J.).1 Is a warrant “validly
——————
1 Nowhere in al-Kidd’s complaint is there any concession that the
warrant gained by the FBI agents was validly obtained. But cf. ante, at
8, n. 3 (majority opinion).
2 ASHCROFT v. AL-KIDD
GINSBURG, J., concurring in judgment
obtained” when the affidavit on which it is based fails to
inform the issuing Magistrate Judge that “the Govern
ment has no intention of using [al-Kidd as a witness] at
[another’s] trial,” post, at 1, and does not disclose that al-
Kidd had cooperated with FBI agents each of the several
times they had asked to interview him, App. 26?
Casting further doubt on the assumption that the war
rant was validly obtained, the Magistrate Judge was not
told that al-Kidd’s parents, wife, and children were all
citizens and residents of the United States. In addition,
the affidavit misrepresented that al-Kidd was about to
take a one-way flight to Saudi Arabia, with a first-class
ticket costing approximately $5,000; in fact, al-Kidd had a
round-trip, coach-class ticket that cost $1,700.2 Given
these omissions and misrepresentations, there is strong
cause to question the Court’s opening assumption—a valid
material-witness warrant—and equally strong reason to
conclude that a merits determination was neither neces
sary nor proper.3
——————
2 Judicial officers asked to issue material witness warrants must
determine whether the affidavit supporting the application shows that
“the testimony of a person is material in a criminal proceeding” and
that “it may become impracticable to secure the presence of the person
by subpoena.” 18 U. S. C. §3144. Even if these conditions are met,
issuance of the warrant is discretionary. Ibid. (“judicial officer may
order the arrest of the person” (emphasis added)). Al-Kidd’s experience
illustrates the importance of vigilant exercise of this checking role by
the judicial officer to whom the warrant application is presented.
The affidavit used to secure al-Kidd’s detention was spare; it did not
state with particularity the information al-Kidd purportedly possessed,
nor did it specify how al-Kidd’s knowledge would be material to Sami
Omar al-Hussayen’s prosecution. As to impracticability, the affidavit
contained only this unelaborated statement: “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.” App. 64. Had the
Magistrate Judge insisted on more concrete showings of materiality
and impracticability, al-Kidd might have been spared the entire ordeal.
3 The Court thrice states that the material witness warrant for al
Cite as: 563 U. S. ____ (2011) 3
GINSBURG, J., concurring in judgment
——————
Kidd’s arrest was “based on individualized suspicion.” Ante, at 6, 8.
The word “suspicion,” however, ordinarily indicates that the person
suspected has engaged in wrongdoing. See Black’s Law Dictionary
1585 (9th ed. 2009) (defining “reasonable suspicion” to mean “[a] par
ticularized and objective basis, supported by specific and articulable
facts, for suspecting a person of criminal activity”). Material witness
status does not “involv[e] suspicion, or lack of suspicion,” of the individ
ual so identified. See Illinois v. Lidster, 540 U. S. 419, 424–425 (2004).
This Court’s decisions, until today, have uniformly used the term
“individualized suspicion” to mean “individualized suspicion of wrong
doing.” See Indianapolis v. Edmond, 531 U. S. 32, 37 (2000) (emphasis
added); Chandler v. Miller, 520 U. S. 305, 313 (1997) (same). See also,
e.g., Brigham City v. Stuart, 547 U. S. 398, 405 (2006) (referring to
“programmatic searches conducted without individualized suspicion—
such as checkpoints to combat drunk driving or drug trafficking”);
Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v.
Earls, 536 U. S. 822, 830 (2002) (“finding of individualized suspicion
may not be necessary when a school conducts drug testing”); Whren v.
United States, 517 U. S. 806, 817–818 (1996) (observed traffic violations
give rise to individualized suspicion); Michigan Dept. of State Police v.
Sitz, 496 U. S. 444, 451 (1990) (“Detention of particular motorists for
more extensive field sobriety testing may require satisfaction of an
individualized suspicion standard.”); Maryland v. Buie, 494 U. S. 325,
334–335, n. 2 (1990) (“Terry [v. Ohio, 392 U. S. 1 (1968)] requires
reasonable, individualized suspicion before a frisk for weapons can be
conducted.”); Treasury Employees v. Von Raab, 489 U. S. 656, 668
(1989) (“[I]n certain limited circumstances, the Government’s need to
discover . . . latent or hidden conditions, or to prevent their develop
ment, is sufficiently compelling to justify [search that intrudes] on
privacy . . . without any measure of individualized suspicion.”);
O’Connor v. Ortega, 480 U. S. 709, 726 (1987) (“petitioners had an
‘individualized suspicion’ of misconduct by Dr. Ortega”); United States
v. Montoya de Hernandez, 473 U. S. 531, 538 (1985) (“Automotive
travelers may be stopped at fixed checkpoints near the border without
individualized suspicion . . .”); New Jersey v. T. L. O., 469 U. S. 325,
342, n. 8 (1985) (“the search of T. L. O.’s purse was based upon
an individualized suspicion that she had violated school rules”); Michi
gan v. Summers, 452 U. S. 692, 699, n. 9 (1981) (“police executing a
search warrant at a tavern could not . . . frisk a patron unless the
officers had individualized suspicion that the patron might be armed or
dangerous”).
The Court’s suggestion that the term “individualized suspicion” is
more commonly associated with “know[ing] something about [a] crime”
4 ASHCROFT v. AL-KIDD
GINSBURG, J., concurring in judgment
I also agree with JUSTICE KENNEDY that al-Kidd’s
treatment presents serious questions, unaddressed by the
Court, concerning “the [legality of] the Government’s use
of the Material Witness Statute in this case.” Ante, at 1
(concurring opinion). In addition to the questions JUSTICE
KENNEDY poses, and even if the initial material witness
classification had been proper, what even arguably legiti
mate basis could there be for the harsh custodial condi
tions to which al-Kidd was subjected: Ostensibly held only
to secure his testimony, al-Kidd was confined in three
different detention centers during his 16 days’ incarcera
tion, kept in high-security cells lit 24 hours a day, strip
searched and subjected to body-cavity inspections on more
than one occasion, and handcuffed and shackled about his
wrists, legs, and waist. App. 29–36; cf. Bell v. Wolfish, 441
U. S. 520, 539, n. 20 (1979) (“[L]oading a detainee with
chains and shackles and throwing him in a dungeon may
ensure his presence at trial and preserve the security of
the institution. But it would be difficult to conceive of a
situation where conditions so harsh, employed to achieve
objectives that could be accomplished in so many alterna
tive and less harsh methods, would not support a conclu
sion that the purpose for which they were imposed was to
punish.”).
However circumscribed al-Kidd’s Bivens claim against
Ashcroft may have been, see Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388 (1971); ante, at 8 (majority
opinion); ante, at 1 (KENNEDY, J., concurring), his remain
——————
or “throwing . . . a surprise birthday party” than with criminal suspects,
ante, at 6, n. 2 (internal quotation marks omitted), is hardly credible.
The import of the term in legal argot is not genuinely debatable. When
the evening news reports that a murder “suspect” is on the loose, the
viewer is meant to be on the lookout for the perpetrator, not the wit
ness. Ashcroft understood the term as lawyers commonly do: He spoke
of detaining material witnesses as a means to “tak[e] suspected terror
ists off the street.” App. 41 (internal quotation marks omitted).
Cite as: 563 U. S. ____ (2011) 5
GINSBURG, J., concurring in judgment
ing claims against the FBI agents who apprehended him
invite consideration of the issues JUSTICE KENNEDY iden
tified.4 His challenges to the brutal conditions of his
confinement have been settled. But his ordeal is a grim
reminder of the need to install safeguards against disre
spect for human dignity, constraints that will control
officialdom even in perilous times.
——————
4 The District Court determined that al-Kidd’s factual allegations
against FBI agents regarding their “misrepresentations and omissions
in the warrant application, if true, would negate the possibility of
qualified immunity [for those agents].” Memorandum Order in No.
cv:05–093 (D Idaho, Sept. 27, 2006), p. 18. The agents took no appeal
from this threshold denial of their qualified immunity plea.
Cite as: 563 U. S. ____ (2011) 1
SOTOMAYOR, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–98
_________________
JOHN D. ASHCROFT, PETITIONER v. ABDULLAH
AL-KIDD
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 31, 2011]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
and JUSTICE BREYER join, concurring in the judgment.
I concur in the Court’s judgment reversing the Court of
Appeals because I agree with the majority’s conclusion
that Ashcroft did not violate clearly established law. I
cannot join the majority’s opinion, however, because it
unnecessarily “resolve[s] [a] difficult and novel questio[n]
of constitutional . . . interpretation that will ‘have no effect
on the outcome of the case.’ ” Ante, at 3 (quoting Pearson
v. Callahan, 555 U. S. 223, 237 (2009)).
Whether the Fourth Amendment permits the pretextual
use of a material witness warrant for preventive detention
of an individual whom the Government has no intention
of using at trial is, in my view, a closer question than
the majority’s opinion suggests. Although the majority
is correct that a government official’s subjective intent is
generally “irrelevant in determining whether that officer’s
actions violate the Fourth Amendment,” Bond v. United
States, 529 U. S. 334, 338, n. 2 (2000), none of our prior
cases recognizing that principle involved prolonged deten­
tion of an individual without probable cause to believe he
had committed any criminal offense. We have never
considered whether an official’s subjective intent matters
for purposes of the Fourth Amendment in that novel con­
text, and we need not and should not resolve that question
2 ASHCROFT v. AL-KIDD
SOTOMAYOR, J., concurring in judgment
in this case. All Members of the Court agree that, what­
ever the merits of the underlying Fourth Amendment
question, Ashcroft did not violate clearly established law.
The majority’s constitutional ruling is a narrow one pre­
mised on the existence of a “valid material-witness war­
ran[t],” ante, at 1—a premise that, at the very least, is
questionable in light of the allegations set forth in al-
Kidd’s complaint. Based on those allegations, it is not at
all clear that it would have been “impracticable to secure
[al-Kidd’s] presence . . . by subpoena” or that his testimony
could not “adequately be secured by deposition.” 18
U. S. C. §3144; see First Amended Complaint in No. 05–
093–EJL, ¶55, App. 26 (“Mr. al-Kidd would have complied
with a subpoena had he been issued one or agreed to a
deposition”). Nor is it clear that the affidavit supporting
the warrant was sufficient; its failure to disclose that the
Government had no intention of using al-Kidd as a wit­
ness at trial may very well have rendered the affidavit
deliberately false and misleading. Cf. Franks v. Delaware,
438 U. S. 154, 155–156 (1978). The majority assumes
away these factual difficulties, but in my view, they point
to the artificiality of the way the Fourth Amendment
question has been presented to this Court and provide
further reason to avoid rendering an unnecessary holding
on the constitutional question.
I also join Part I of JUSTICE KENNEDY’s concurring
opinion. As that opinion makes clear, this case does not
present an occasion to address the proper scope of the
material witness statute or its constitutionality as applied
in this case. Indeed, nothing in the majority’s opinion
today should be read as placing this Court’s imprimatur
on the actions taken by the Government against al-Kidd.
Ante, at 1 (KENNEDY, J., concurring) (“The Court’s holding
is limited to the arguments presented by the parties and
leaves unresolved whether the Government’s use of the
Material Witness Statute in this case was lawful”).