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Ninth Circuit denies rehearing on Ashcroft immunity petition

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Thursday denied [opinion, PDF] a petition by former attorney general John Ashcroft [JURIST news archive] to reconsider its decision that Ashcroft is not entitled to absolute and qualified immunity in an unlawful detention case. By declining to rehear its previous ruling [opinion, PDF; JURIST report], the court is allowing the lawsuit by US citizen Abdullah al-Kidd to go forward. Ashcroft could be found personally liable for misusing the material witness statute [18 USC § 3144 text; HRW backgrounder, PDF]. The court was split in its decision. In the dissent, Judge O'Scannlain questioned the scope of the majority's decision. He wrote:

By permitting al-Kidd's suit to proceed, the majority commits two distinct but equally troubling legal errors, each of which will have far-reaching implications for how government officials perform their duties. First, the majority strips Ashcroft of his official immunity, holding that it was clearly established at the time of al-Kidd’s arrest that prosecutors violate the Fourth Amendment when they obtain and execute a material witness warrant as a pretext for other law enforcement objectives. Second, by holding that Ashcroft may be personally liable if his subordinates swore false affidavits to obtain the warrant authorizing al-Kidd's arrest, the majority stretches beyond recognition the rule that a government official is liable only when he personally violates the constitution.

The majority opinion responded directly to the dissenting judges, rejecting their analysis and the potential ramifications from the decision. Upon learning of the court's decision, American Civil Liberties Union (ACLU) [advocacy website] Immigrants' Rights Project Deputy Director Lee Gelernt criticized [press release] Ashcroft saying that he "deliberately distorted the federal material witness law to allow the detention of innocent people. ... [H]e should be held personally liable."

Ashcroft has faced a number of lawsuits for his actions while attorney general. In December, the US Court of Appeals for the Second Circuit [official website] ruled [JURIST report] that post-arrest detention is legal in cases where the detainees are reasonably detained in a case, finding Ashcroft not liable. The government had settled with five of the plaintiffs [JURIST report] for $1.26 million in November, despite admitting no wrongdoing. Ashcroft had previously claimed absolute immunity because his actions to seek a material witness warrant were those of a "prosecutor." He had claimed qualified immunity as an attorney general because his actions furthered an investigatory or national security function. In September, the Ninth Circuit rejected both of those claims, upholding a lower court decision [JURIST report]. In May, the US Supreme Court [official website] ruled [JURIST report] that a similar case challenging Ashcroft's immunity from lawsuits for mistreatment of prisoners could not go forward because of failure to adequately state a claim.

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