Rodriguez v. Swartz, No. 15-16410 (9th Cir. 2018)
Annotate this CaseThe Ninth Circuit affirmed the district court's denial of qualified immunity to a border patrol agent who, while standing on American soil, shot and killed a teenage Mexican citizen, J.A., who was innocently walking down a street in Mexico. The panel held that the agent violated the Fourth Amendment and lacked qualified immunity where it was inconceivable that any reasonable officer could have thought that he or she could kill J.A. for no reason. The panel also held that J.A.'s mother had a cause of action against the agent for money damages pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). The panel noted its reluctance to extend Bivens, but did so because no other adequate remedy was available and there was no reason to infer that Congress deliberately chose to withhold a remedy.
Court Description: Civil Rights. The panel affirmed the district court’s order denying qualified immunity to a United States Border Patrol agent who, while standing on American soil, shot and killed J.A., a teenage Mexican citizen who was walking down a street in Mexico. The panel held that assuming, as it was required to do, that the facts as pleaded in the First Amended Complaint were true, the agent was not entitled to qualified immunity. The panel held that J.A. had a Fourth Amendment right to be free from the unreasonable use of deadly force by an American agent acting on American soil, even though the agent’s bullets hit him in Mexico. The panel further held that given the circumstances, that J.A. was not suspected of any crime, was not fleeing or resisting arrest and did not pose a threat to anyone, the use of force was unreasonable under the RODRIGUEZ V. SWARTZ 3 Fourth Amendment. The panel concluded that no reasonable officer could have thought that he could shoot J.A. dead if, as pleaded, J.A. was innocently walking down a street in Mexico. The panel held that pursuant to the Supreme Court’s decision in Hernandez v. Mesa, 137 S. Ct. 137 2003 (2017), it had jurisdiction, on interlocutory appeal, to decide whether J.A.’s mother had a cause of action for damages against the agent pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). The panel held that despite its reluctance to extend Bivens, it would do so here because no other adequate remedy was available, there was no reason to infer that Congress deliberately chose to withhold a remedy, and the asserted special factors either did not apply or counseled in favor of extending Bivens. Dissenting, Judge M. Smith stated that the panel lacked the authority to extend Bivens to the cross-border context presented in this case. In holding to the contrary, Judge M. Smith believed that the majority created a circuit split, overstepped separation-of-powers principles, and disregarded Supreme Court law. 4 RODRIGUEZ V. SWARTZ
The court issued a subsequent related opinion or order on April 7, 2020.
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