Ninth Circuit denies rehearing on Ashcroft immunity petition

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Ninth Circuit denies rehearing on Ashcroft immunity petition

March 19, 2010 09:39:00 am

[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.

Martin Luther King Jr. wrote his Letter from Birmingham Jail

On April 16, 1963, an incarcerated Martin Luther King, Jr. (arrested for demonstrating in defiance of a court order) wrote his Letter from Birmingham Jail in response to a published statement by eight fellow clergymen from Alabama.

Part of the letter read: We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. Read the full text of the Letter.