Al-Kidd

Robert M. Loeb and Matthew M. Collette, Department of Justice, Civil Division, Washington, D.C., for the defendant-appellant.

Lee Gelernt, Immigrants' Rights Project, American Civil Liberties Union, New York, NY, for the plaintiff-appellee.

Alison M. Tucher, Morrison & Foerster, San Francisco, CA, for amici curiae Former Federal Prosecutors.

Leo P. Cunningham and Lee-Anne Mulholland, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA, for amici curiae National Association of Criminal Defense Lawyers and Human Rights Watch.

Before: DAVID R. THOMPSON, CARLOS T. BEA, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge MILAN D. SMITH, JR. Partial Concurrence and Partial Dissent by Judge BEA.

MILAN D. SMITH, JR., Circuit Judge:

According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport's police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during…

concurring in part and dissenting in part:

This case raises the question whether a person whom a prosecutor can rightly arrest under a statute becomes wrongly arrested if the prosecutor’s purpose in arresting him had nothing to do with the statute. Put another way, can a prosecutor, empowered by law to arrest an individual for one declared purpose, be immune from suit when he arrests that person with another, secret purpose in mind?

Our natural reaction is, “Of course not!” Such a prosecutor is abusing the vast discretionary powers we have entrusted to him. He is not playing fair; he is playing “Gotcha!”

But under our law, that natural reaction would be wrong. For reasons of public policy, our law provides the prosecutor with official immunity — perhaps not immunity from being fired, impeached, or hounded from public life, but immunity nonetheless — from lawsuits for money damages based on the acts he undertakes on behalf of the public.

The Supreme Court has developed this law by repeatedly instructing us not to inquire into the personal, subjective intentions of a government official when determining whether the official is protected by official immunity. Reading the minds of…

Opinion by Judge MILAN D. SMITH, JR. Partial Concurrence and Partial Dissent by Judge BEA. ■

According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport’s police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to *952 Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home visits throughout the period of supervision. By the time al-Kidd’s confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government…