Rodriguez v. Swartz, 080718 FED9, 15-16410

Docket Nº:15-16410
Opinion Judge:KLEINFELD JUDGE
Party Name:Araceli Rodriguez, individually and as the surviving mother and personal representative of J.A., Plaintiff-Appellee, v. Lonnie Swartz, Agent of the U.S. Border Patrol, Defendant-Appellant.
Attorney:Sean Christopher Chapman (argued), Law Offices of Sean C. Chapman P.C., Tucson, Arizona, for Defendant-Appellant. Lee Glernt (argued) and Andre Segura, Immigrants' Rights Project, American Civil Liberties Union Foundation, New York, New York; Luis F. Parra, Parra Law Offices, Nogales, Arizona; Ce...
Judge Panel:Before: Andrew J. Kleinfeld and Milan D. Smith, Jr., Circuit Judges, and Edward R. Korman, District Judge. Milan D. SMITH, Circuit Judge, dissenting
Case Date:August 07, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Araceli Rodriguez, individually and as the surviving mother and personal representative of J.A., Plaintiff-Appellee,

v.

Lonnie Swartz, Agent of the U.S. Border Patrol, Defendant-Appellant.

No. 15-16410

United States Court of Appeals, Ninth Circuit

August 7, 2018

Submission Withdrawn October 21, 2016 [*]

Resubmitted July 31, 2018 San Francisco, California

Appeal from the United States District Court for the District of Arizona Raner C. Collins, Chief Judge, Presiding D.C. No. 4:14-cv-02251-RCC

Sean Christopher Chapman (argued), Law Offices of Sean C. Chapman P.C., Tucson, Arizona, for Defendant-Appellant.

Lee Glernt (argued) and Andre Segura, Immigrants' Rights Project, American Civil Liberties Union Foundation, New York, New York; Luis F. Parra, Parra Law Offices, Nogales, Arizona; Cecilia Wang and Cody Wofsy, Immigrants' Rights Project, American Civil Liberties Union Foundation, San Francisco, California; Daniel J. Pochoda and James Duff Lyall, ACLU Foundation of Arizona, Phoenix, Arizona; Robert C. Montiel, Roberto Montiel Law Offices, Nogales, Arizona; Mitra Ebadolahi, ACLU Foundation of San Diego and Imperial Counties, San Diego, California; Arturo J. Gonzalez and Hector Suarez, Morrison & Foerster LLP, San Francisco, California; Marc A. Hearron, Morrison & Foerster LLP, Washington, D.C.; for Plaintiff-Appellee.

Henry Whitaker (argued), Mark B. Stern, and Katherine Twomey Allen, Appellate Staff; Chad A. Readler, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Amicus Curiae United States.

Jeffrey L. Bleich, Dentons U.S. LLP, San Francisco, California; Andrew Cath Rubenstein and Nicholas D. Fram, Munger Tolles & Olson LLP, San Francisco, California; for Amici Curiae Professors of Constitutional Law and Foreign Relations Law.

Sarah P. Alexander and Mary Inman, Constantine Cannon LLP, San Francisco, California, for Amicus Curiae Human Rights Watch.

Donald Francis Donovan, Carl J. Micarelli, Brandon Burkart, and Aymeric Damien Dumoulin, Debevoise & Plimpton LLP, New York, New York, for Amicus Curiae Government of the United Mexican States.

Matthew E. Price and William K. Dreher, Jenner & Block LLP, Washington, D.C., for Amici Curiae Law Professors.

Stanley Young, Covington & Burling LLP, Redwood Shores, California, for Amicus Curiae Coalición de Derechos Humanos, The Southern Border Communities Coalition, No More Deaths, The National Immigration Project of the National Lawyers Guild, The Kino Border Initiative, and the American Immigration Council.

Ethan D. Dettmer, Joshua S. Lipshutz, Eli M. Lazarus, Katherine C. Warren, and Courtney J. Chin, Gibson Dunn & Crutcher LLP, San Francisco, California, for Amici Curiae Scholars of U.S.-Mexico Border Issues.

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota; Vivek Krishnamurthy, Christopher T. Bavitz, and Andrew F. Sellars, Cyberlaw Clinic, Harvard Law School, Cambridge, Massachusetts, for Amicus Curiae Restore the Fourth Inc.

Before: Andrew J. Kleinfeld and Milan D. Smith, Jr., Circuit Judges, and Edward R. Korman, [**] District Judge.

SUMMARY

[***]

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 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.

OPINION

KLEINFELD JUDGE

A U.S. Border Patrol agent standing on American soil shot and killed a teenage Mexican citizen who was walking down a street in Mexico. We address whether that agent has qualified immunity and whether he can be sued for violating the Fourth Amendment. Based on the facts alleged in the complaint, we hold that the agent violated a clearly established constitutional right and is thus not immune from suit. We also hold that the mother of the boy who was killed has a cause of action against the agent for money damages.

FACTS

We take the facts as they are pleaded in the First Amended Complaint. These facts have not been proven, and they may not be true. But we must assume that they are true for the sake of determining whether the case may proceed.[1]

Shortly before midnight on October 10, 2012, defendant Lonnie Swartz was on duty as a U.S. Border Patrol agent on the American side of our border with Mexico. J.A., a sixteen-year-old boy, was peacefully walking down the Calle Internacional, a street in Nogales, Mexico, that runs parallel to the border. Without warning or provocation, Swartz shot J.A. dead. Swartz fired somewhere between 14 and 30 bullets across the border at J.A., and he hit the boy, mostly in the back, with about 10 bullets. J.A. was not committing a crime. He did not throw rocks or engage in any violence or threatening behavior against anyone or anything. And he did not otherwise pose a threat to Swartz or anyone else. He was just walking down a street in Mexico.

The Calle Internacional, where J.A. was walking, is a main thoroughfare lined with commercial and residential buildings. The American side of the border is on high ground, atop a cliff or rock wall that rises from the level of the Calle Internacional. The ground on the American side is around 25 feet higher than the road, and a border fence rises another 20 or 25 feet above that. (See the Appendix for a photograph.) The fence is made of steel beams, each about 6½ inches in diameter, set about 3½ inches apart. Nogales, Mexico, and Nogales, Arizona, are in some respects one town divided by the border fence. Families live on both sides of the border, and people go from one side to the other to visit and shop. J.A.'s grandparents live in Arizona. They were lawful permanent residents at the time of the shooting, and they are now U.S. citizens. J.A.'s grandmother often stayed with him in Mexico when his mother was away at work. J.A. was a Mexican citizen who had never been to the United States, but Swartz did not know that when he shot J.A.

J.A.'s mother, Araceli Rodriguez, acting both individually and as a personal representative of J.A.'s estate, sued Lonnie Swartz for money damages. She has two claims: one for a violation of her son's Fourth Amendment rights, and another for a violation of his Fifth Amendment rights. Her complaint alleges no facts that could allow anyone to characterize the shooting as being negligent or justifiable. What is pleaded is simple and straightforward murder.

To summarize the facts alleged in the complaint: Swartz was an on-duty U.S. Border Patrol agent stationed on the American side of the border fence. J.A. was a Mexican citizen walking down a street in Mexico. Swartz fired his pistol through the border fence into Mexico. He intentionally killed J.A. without any justification. Swartz acted entirely from within the United States, but J.A. was in Mexico when Swartz's bullets struck and killed him. Swartz did not know J.A.'s citizenship or whether he had substantial connections to the United States, so for all Swartz knew, J.A. could have...

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