Araceli Rodriguez v. Lonnie Swartz
899 F.3d 719
9th Cir.2018Background
- On Oct. 10, 2012, Border Patrol agent Lonnie Swartz (on U.S. soil) fired multiple rounds across the U.S.–Mexico border, killing J.A., a 16‑year‑old Mexican national walking on a street in Nogales, Mexico; complaint alleges roughly 10 bullets hit the boy, mostly in the back, with no provocation.
- Plaintiff Araceli Rodriguez (mother and personal representative) sued Swartz for money damages under the Fourth and Fifth Amendments; the complaint alleges an intentional, unjustified killing (not negligence or accident).
- District court denied Swartz qualified immunity on the Fourth Amendment claim and dismissed the Fifth Amendment claim as duplicative of the Fourth Amendment seizure analysis.
- Swartz appealed interlocutorily; the United States (as amicus) argued that no Bivens cause of action exists for this cross‑border context; the panel considered Hernandez v. Mesa (Supreme Court) guidance and held it had jurisdiction to decide the Bivens question on interlocutory appeal.
- Ninth Circuit (majority) affirmed: (1) on the pleaded facts Swartz violated a clearly established Fourth Amendment right (no qualified immunity), (2) the Fourth Amendment applies to an American agent’s unreasonable use of deadly force from U.S. soil even if the bullets struck abroad, and (3) a Bivens damages remedy is available because no adequate alternative exists and no special factors counsel withholding a remedy.
- Judge M. Smith dissented, arguing extension of Bivens into this cross‑border context conflicts with separation‑of‑powers principles, Abbasi guidance, creates a circuit split, and that numerous special factors counsel against creating a damages remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Qualified immunity for agent who shot across border | Swartz violated a clearly established Fourth Amendment right by using deadly force against an unthreatening person | Swartz claimed immunity because the victim was a foreign national shot abroad and law was not clearly established for cross‑border shootings | Denied: on pleaded facts use of deadly force was unreasonable and the right was clearly established; no reasonable officer could lawfully shoot an innocent person under these facts |
| Applicability of Fourth Amendment when agent acts on U.S. soil but victim struck abroad | Fourth Amendment protects persons from unreasonable seizures by U.S. agents acting on U.S. soil; extraterritorial concerns do not defeat the claim here | Relies on Verdugo‑Urquidez and extraterritorial limits: constitutional protections should not extend to foreign persons harmed abroad | Held applicable: because agent acted on U.S. soil and could not know victim’s citizenship/ties, the Fourth Amendment applied to forbid gratuitous deadly force despite bullets striking in Mexico |
| Availability of a Bivens damages remedy for cross‑border killing | Bivens should be extended: no adequate alternative remedy (FTCA barred by foreign‑country exception; state torts displaced by Westfall Act; criminal prosecution and restitution are inadequate) | Courts should not extend Bivens into a new, extraterritorial, foreign‑policy‑sensitive context; Congress, not courts, should create remedies | Extended Bivens: court held this is a new context but allowed remedy because no adequate alternative exists and asserted special factors did not preclude extension in these particular facts |
| Special factors / foreign policy, national security, extraterritoriality | No special factors bar relief here: this is an individual excessive‑force case against a line agent, not a policy challenge; extension won’t meaningfully impair foreign relations or national security | Numerous special factors (foreign‑policy intrusion, extraterritoriality, congressional silence, FTCA framework) counsel against judicially creating damages remedy | Majority: special factors do not preclude Bivens under the specific pleaded facts; Dissent: special factors are dispositive and judicial creation of remedy is inappropriate (would leave decision to Congress) |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognized implied damages remedy for Fourth Amendment violations by federal agents)
- Boumediene v. Bush, 553 U.S. 723 (2008) (test for when Constitution applies extraterritorially considers citizenship, location, and practical control)
- United States v. Verdugo‑Urquidez, 494 U.S. 259 (1990) (Fourth Amendment did not apply to search/seizure of property of nonresident alien in foreign country)
- Tennessee v. Garner, 471 U.S. 1 (1985) (deadly force may not be used against a fleeing, non‑threatening suspect)
- Graham v. Connor, 490 U.S. 386 (1989) (excessive‑force reasonableness standard judged from officer’s perspective)
- Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified immunity standard)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (expansion of Bivens is disfavored; courts must consider whether a context is new and whether special factors counsel hesitation)
- Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (per curiam) (Supreme Court clarified that Bivens availability is antecedent issue and remanded to consider it in light of Abbasi)