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9th Cir. Panel Refuses En Banc Rehearing of Ruling Ex-AG Ashcroft Can Be Sued by Witness

Posted Mar 18, 2010 4:36 PM CDT
By Martha Neil

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Refusing an en banc rehearing of an earlier 2-1 ruling by an appellate panel, the San Francisco-based 9th U.S. Circuit Court of Appeals has effectively held once more that former U.S. Attorney General John Ashcroft can be sued for civil damages by a man who says he was unconstitutionally jailed as a material witness in a terrorism case.

However, the 2-1 panel decision (PDF) rendered today includes a dissent from eight of the court's 26 active judges, emphasizing the likelihood that the U.S. Supreme Court eventually will decide the immunity issue, according to the L.A. Now blog of the Los Angeles Times.

Ashcroft had asserted prosecutorial immunity against the civil case brought by Abdullah al-Kidd, who says he was arrested without probable cause and jailed under an unconstitutional policy approved by Ashcroft. However, the three-judge 9th Circuit panel found that neither absolute nor qualified immunity applied, as detailed in an earlier ABAJournal.com post.

"Accepting al-Kidd's factual allegations as true and drawing all inferences in his favor, we held that al-Kidd alleged sufficient facts in his complaint to state a claim against Ashcroft for creating, authorizing, implementing and supervising a policy that violated al-Kidd's Fourth Amendment right against unreasonable searches and seizures," writes the panel in its opinion today.

"In doing so, we determined Ashcroft was not entitled to absolute or qualified immunity because he served an investigative function in connection with the challenged policy, which violated al-Kidd's clearly established constitutional rights. We also held that al-Kidd alleged sufficient facts in his complaint to state a claim that Ashcroft directly violated the material witness statute by his own personal conduct."

A spokesman tells the Associated Press that the U.S. Department of Justice is reviewing today's decision.

Updated at 5:43 p.m. to include information from Associated Press article.

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