CA9: Bivens permits cause of action against Border Patrol agent for shooting a Mexican citizen across the border who posed no threat

In a 2-1 decision, the Ninth Circuit held Bivens permitted an action against a US Border Patrol agent who shot from the U.S. into Mexico and killed a Mexican teenager. In addition, there was no qualified immunity. Rodriguez v. Swartz, 2018 U.S. App. LEXIS 21930 (9th Cir. Aug. 7, 2018). Syllabus by the court:

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 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. 2003, 198 L. Ed. 2d 625 (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, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (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.

From the opinion: “Based on the facts alleged in the complaint, Swartz violated the Fourth Amendment. It is inconceivable that any reasonable officer could have thought that he or she could kill J.A. for no reason. Thus, Swartz lacks qualified immunity.”

The shooting was from Nogales into Mexico in October 2012, and the victim was hit with 10 bullets while walking down the street doing nothing wrong. Hernandez happened in June 2010 from El Paso to Ciudad Juarez, Mexico.