David Doeling


In March 2003, FBI agents pretextually arrested Abdullah al-Kidd under the federal material witness statute. As a result, al-Kidd brought a Bivens action in federal district court against U.S. Attorney General John Ashcroft. The court denied Ashcroft’s assertions of absolute and qualified immunity, and the U.S. Court of Appeals for the Ninth Circuit affirmed. In Aschroft v. al-Kidd the U.S. Supreme Court correctly held that qualified immunity protected Ashcroft against al-Kidd’s lawsuit. But the Court’s unnecessary conclusion that Ashcroft did not violate the Fourth Amendment is troubling. Not only did the Court expand the “objectively reasonable” test that is typically applied to law enforcement officers in the field but it also proposed a definition of “suspicion” that is at odds with its own precedent. The combined effect of these developments is an alarming ability on the part of authorities to avoid the probable cause requirement for arrest warrants. When an arresting authority’s state of mind is shielded from constitutional scrutiny, and when the definition of suspicion is as broad as the Court has construed it, the result is the erosion of basic Fourth Amendment protections.

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