[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.