United States Ninth Circuit

In a Bivens action alleging that plaintiff was unlawfully arrested pursuant to a Bush Administration policy illegally using the federal material witness statute to detain suspected terrorists, the denial of defendant's motion to dismiss on qualified immunity grounds is affirmed in part, where plaintiff did not alleged adequate facts to render plausible defendant's personal involvement in setting the harsh conditions of his confinement. However, the order is reversed in part where: 1) defendant was acting in an investigative rather than a prosecutorial capacity in detaining plaintiff; and 2) plaintiff's right not to be arrested as a material witness in order to be investigated or preemptively detained was clearly established.

Appellate Information

• Argued 04/08/2008
• Decided 09/04/2009
• Published 09/04/2009

Judges

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

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• 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.


• For Appellees:
  
• 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.