Cornejo v. County of San Diego

• Citation: 504 F.3d 853
• Decision Date: 24 September 2007
• Docket Number: No. 05-56202.,05-56202.
• Parties: Ezequiel Nunez CORNEJO, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO; City of San Diego; City of Escondido; The City of Oceanside; Paul LaCroix; William McDaniel, California Deputy Sheriff; Jon Montion; Does 1-100; City of Carlsbad, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

504 F.3d 853

Ezequiel Nunez CORNEJO, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO; City of San Diego; City of Escondido; The City of Oceanside; Paul LaCroix; William McDaniel, California Deputy Sheriff; Jon Montion; Does 1-100; City of Carlsbad, Defendants-Appellees.

No. 05-56202.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 25, 2007.

Filed September 24, 2007.

Genaro Lara, Vista, CA, (argued); Emile M. Mullick, San Bernardino, CA, for the plaintiffs-appellants.

Donald Shanahan, San Diego, CA, (argued); David Axtmann, San Diego, CA, (argued); Susan D. Ryan, Escondido, CA; Ronald R. Ball, Carlsbad, CA; David M. Daftary, Oceanside, CA, for the defendants-appellees.

Douglas N. Letter (argued), Sharon Swingle, Department of Justice, Washington, DC, for amicus curiae the United States.

Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CV-05-00726-MLH.

Before: ARTHUR L. ALARCÓN, D.W. NELSON, and PAMELA ANN RYMER, Circuit Judges.

Opinion by Judge RYMER; Dissent by Judge D.W. NELSON.

RYMER, Circuit Judge:

This appeal requires us to resolve an issue left open in our en banc decision in United States v. Lombera-Camorlinga, 206 F.3d 882, 884 (9th Cir.2000): whether Article 36 of the Vienna Convention on Consular Relations¹ creates judicially enforceable rights that may be vindicated in an action brought under 42 U.S.C. § 1983.

Ezequiel Nunez Cornejo's complaint seeks damages and injunctive relief against the County of San Diego, several deputy sheriffs, and various cities within the county on behalf of a class of foreign nationals who were arrested and detained without being advised of their right to have a consular officer notified as required by Article 36. The district court dismissed the action, concluding that Cornejo could not bring a § 1983 claim for violation of the Convention because it creates no private rights of action or corresponding remedies.

We agree with the district court that Article 36 does not create judicially enforceable rights. Article 36 confers legal rights and obligations on States in order to facilitate and promote consular functions. Consular functions include protecting the interests of detained nationals, and for that purpose detainees have the right (if they want) for the consular post to be notified of their situation. In this sense, detained foreign nationals benefit from Article 36's provisions. But the right to protect nationals belongs to States party to the Convention; no private right is unambiguously conferred on individual detainees such that they may pursue it through § 1983. Accordingly, we affirm.

I

Cornejo is a national and citizen of Mexico. His First Amended Complaint alleges that when he was arrested, San Diego County Sheriff's Deputies Paul LaCroix, William McDaniel, and Jon Montion failed to inform him, and others similarly situated whom he seeks to make part of a class, of the individual right conferred by Article 36 and by California Penal Code § 834c, "to contact a consular official of his country." He claims that in this, the County and the deputies violated the class's due process rights and "right of information which would have assisted them and would have resulted in a different outcome of their case had they been provided with consular and legal assistance."² The complaint prays for damages, a declaration that the practices and customs of the county and cities violate individual rights under the United States Constitution and California Penal Code § 834c, and for an order requiring compliance with the mandatory provisions of the Convention and California Penal Code § 834c.³

The County, deputy sheriffs, and City moved to dismiss for failure to state a claim. The district court granted the motions, thereby mooting Cornejo's request for class certification. It ruled that he could not state a claim under § 1983 for violations of the Vienna Convention because Article 36 does not provide for a private right of action; that his Monell⁴ claim against the county and cities failed as he was not deprived of a constitutionally protected interest; and that, in any event, Cornejo pled no harm on account of anything done by Carlsbad, Escondido, San Diego, or Oceanside.

Cornejo timely appealed, and the United States has appeared as amicus curiae in support of the county, deputy sheriffs, and the cities.

II

The Vienna Convention is a multilateral international agreement "that governs relations between individual nations and foreign consular officials." Sanchez-Llamas v. Oregon, ___ U.S. ___, 126 S.Ct. 2669, 2691, 165 L.Ed.2d 557 (2006) (Breyer, J., dissenting). Adopted in 1963, 170 States are States parties.⁵ The United States ratified the Convention in 1969. Id. Article 36 provides:

Communication and contact with nationals of the sending State

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

21 U.S.T. 77, 100-101. Here, Mexico is the "sending State" and the United States is the "receiving State."

For any treaty to be susceptible to judicial enforcement it must both confer individual rights and be self-executing. There is no question that the Vienna Convention is self-executing. As such, it has the force of domestic law without the need for implementing legislation by Congress. See U.S. Const., art. VI, cl. 2 ("[A]ll Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby. . . ."); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415 (1829); Medellin v. Dretke, 544 U.S. 660, 686, 125 S.Ct. 2088, 161 L.Ed.2d 982 (2005) (O'Connor, J., dissenting) (citing Head Money Cases, 112 U.S. 580, 598-99, 5 S.Ct. 247, 28 L.Ed. 798 (1884)). But "the questions of whether a treaty is self-executing and whether it creates private rights and remedies are analytically distinct." Id. at 687, 125 S.Ct. 2088; Restatement (Third) of Foreign Relations Law of the United States § 111 cmt. h (hereinafter Restatement). "While a treaty must be self-executing for it to create a private right of action enforceable in court without implementing domestic legislation, all self-executing treaties do not necessarily provide for the availability of such private actions." Renkel v. United States, 456 F.3d 640, 643 n. 3 (6th Cir.2006).

Therefore, the question here is whether Congress, by ratifying the Convention, intended to create private rights and remedies enforceable in American courts through § 1983 by individual foreign nationals who are arrested or detained in this country. It is an open question for us.⁶ Only the Seventh Circuit Court of Appeals has answered this question squarely, and did so affirmatively in Jogi v. Voges, 480 F.3d 822 (7th Cir.2007). However, other circuits that have considered violations of Article 36 in criminal proceedings point in the opposite direction. Two have concluded that the Convention confers no enforceable individual rights, United States v. Jimenez-Nava, 243 F.3d 192, 197-98 (5th Cir.2001) (rejecting argument that Article 36 creates enforceable individual rights and declining to apply the exclusionary rule as an appropriate remedy for an Article 36 violation); United States v. Emuegbunam, 268 F.3d 377, 394 (6th Cir.2001), and others have held that regardless of whether it does or not, remedies such as dismissal of the indictment or suppression of evidence are not available. United States v. De La Pava, 268 F.3d 157, 164-65 (2d Cir.2001) (suggesting, but not deciding, that the Convention does not confer judicially-enforceable rights for individuals); United States v. Li, 206 F.3d 56 (1st Cir. 2000) (en banc) (same), id. at 66 (Selya & Boudin, JJ., concurring) (stating that "[n]othing in [its] text explicitly provides for judicial enforcement of their consular access provisions at the behest of private litigants"); United States v. Minjares-Alvarez, 264 F.3d 980, 986-87 (10th Cir. 2001); United States v. Cordoba-Mosquera, 212 F.3d 1194, 1196 (11th Cir.2000); United States v. Santos, 235 F.3d 1105, 1108 (8th Cir.2000) (holding that any violation of Article 36 was harmless error), id. at 1109 (Beam, J., concurring) (stating...