The Ninth Circuit Extends Bivens to Cross-Border Shooting

Recently, the Ninth Circuit extended a Bivens cause of action to a cross-border shooting from the United States into Mexico. The Ninth Circuit also found that the U.S. Border Patrol Agent lacked qualified immunity.

The court of appeals found the following facts as a predicate to its holding. On October 10, 2012, U.S. Border Patrol Agent Lonnie Swartz was on duty along the United States-Mexico border in Nogales, Arizona. Shortly before midnight, J.A., a sixteen-year-old boy, was peacefully walking down a street in Nogales, Mexico that runs parallel to the United States-Mexico border. Without warning or provocation, Swartz fired between 14 and 30 bullets from American soil into Mexico at J.A., hitting J.A. with about 10 bullets. J.A. was not committing a crime, engaging in any threatening behavior, or posing any sort of threat to Swartz or anyone else.

J.A.’s mother, Araceli Rodriguez, acting individually and on behalf of J.A.’s estate, sued Swartz for money damages. Rodriguez claimed that Swartz violated J.A.’s Fourth and Fifth Amendment rights. Swartz moved to dismiss the complaint based on qualified immunity. Swartz conceded that Rodriguez had a Bivens cause of action.

The district court held that Swartz was not entitled to qualified immunity on the Fourth Amendment claim, and dismissed the Fifth Amendment claim. Swartz then filed an interlocutory appeal with the U.S. Court of Appeals for the Ninth Circuit to challenge the district court’s denial of qualified immunity. The United States filed an amicus brief and argued that Rodriguez lacked a Bivens cause of action for a Fourth Amendment violation. Swartz adopted the United States’s argument on appeal.

The court of appeals assumed the facts as pleaded in Rodriguez’s complaint were true for the purposes of determining whether the case could proceed. The court of appeals noted that the facts as pleaded by Rodriquez may turn out to be unsupported, and the shooting may turn out to be excusable or justified. However, in a procedural context, like this, the court of appeals stated that it must take the facts as alleged in the complaint.

To determine whether an officer is entitled to qualified immunity, a court must evaluate whether the officer’s conduct violated a constitutional right, and whether that right was clearly established at the time of the incident.

Relying on United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), Swartz contended that he did not violate the Constitution because J.A. was shot and seized in Mexico. In Verdugo-Urquidez, the Supreme Court held that the Fourth Amendment did not apply to the search and seizure of a Mexican citizen’s property in Mexico. The court of appeals disagreed with Swartz that Verdugo-Urquidez was applicable here because the agents in Verdugo-Urquidez acted on Mexican soil, unlike Swartz, who acted on American soil.

The court of appeals stated that this case is about the unreasonable use of deadly force by a federal agent on American soil, and that under those limited circumstances, there are no obstacles to extending the Fourth Amendment. Thus, the court held that J.A. had a Fourth Amendment right to be free from the objectively reasonable use of deadly force by an American agent acting on American soil, even though Swartz’s bullets hit him in Mexico. Swartz violated this right when he shot and seized J.A.

Swartz also argued that when he shot J.A., it was not clearly established that he could not shoot someone on the other side of the boarder. The court of appeals again disagreed with Swartz, and found that it was clearly established that it was unconstitutional for an officer on American soil to use deadly force without justification against a person on the other side of the border. The court of appeals therefore decided that Swartz did not have qualified immunity in this case.

The court of appeals next addressed the argument made by the United States as amicus curiae and Swartz that Rodriguez lacked a Bivens cause of action for a Fourth Amendment violation.

The court of appeals referenced Hernandez v. Mesa, 137 S. Ct. 137 2003 (2017), a recent Supreme Court decision where a Mexican teenager was shot and killed while standing on Mexican soil by a U.S. Border Patrol agent, who was standing on American soil. The Supreme Court sent that case back down to the Fifth Circuit to consider whether there was a Bivens cause of action. Given the Supreme Court’s decision to remand Hernandez to the Fifth Circuit to determine whether there was a Bivens cause of action, the court of appeals concluded that it similarly had jurisdiction to determine whether there was a Bivens cause of action here.

The court of appeals was quick to note that a Bivens cause of action is not available for every constitutional violation, and went through several of the Supreme Court’s decisions denying a Bivens cause of action. In particular, the court of appeals emphasized the Supreme Court’s decision in Ziglar v. Abassi, 137 S. Ct. 1843 (2017). In that case, the Supreme Court held that individuals detained on suspicion of terrorism after 9/11 did not have a Bivens cause of action to challenge their detention. The court of appeals stated, “Abbasi demonstrates several principles that have emerged from this line of cases.” Abassi explains that if a case presents a “new context,” then a court must exercise “caution” in deciding whether to extend Bivens, and a “in the right case” a court can extend Bivens into a new context.  Also, a court can extend Bivens only if there are no other adequate remedies or “special factors.”

The court of appeals then applied these principles to this case. The court concluded that this case presents a new Bivens context. It also concluded that Rodriguez does not have an adequate alternative remedy since she cannot bring a tort claim against the United States, a state law tort claim against Swartz, and no evidence exists that Rodriguez could bring a tort claim against Swartz in Mexico. The court further concluded that no “special factors” were present here. In particular, the court stated that extending Bivens here does not implicate national security since national security or have problematic foreign policy implications.

While noting its reluctance to do so, the court of appeals decided to extend Bivens to the facts as pleaded, and affirmed the district court’s decision.

Read the full case: Rodriguez v. Swartz


This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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