Rodriguez v. Swartz

Decision Date07 August 2018
Docket NumberNo. 15-16410,15-16410
Citation899 F.3d 719
Parties 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.
CourtU.S. Court of Appeals — Ninth Circuit

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 US 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.

Dissent by Judge Milan D. Smith, Jr.

KLEINFELD, Senior Circuit 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.


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 been an American citizen.

Swartz moved to dismiss the complaint based on qualified immunity. He conceded that Rodriguez had a Bivens cause of action under the Fourth Amendment. In a carefully reasoned opinion, the district court held that Swartz was not entitled to qualified immunity on the Fourth Amendment claim. Because it treated the shooting as a "seizure" under the Fourth Amendment, the court dismissed the Fifth Amendment claim.2

Swartz filed this interlocutory appeal to challenge the district court's denial of qualified immunity. The United States filed an amicus brief that presented an argument that had not been made in district court: that Rodriguez lacks a Bivens cause of action for a Fourth Amendment violation. Though Swartz had not raised that argument in his opening brief on appeal, he adopted it in his reply brief.

We affirm the district court's decision to let Rodriguez's Fourth Amendment claim proceed.


Qualified immunity protects public officials "from liability for civil damages insofar as their conduct does not violate clearly established ... constitutional rights of which a reasonable person would have known."3 "To determine whether an officer is entitled to qualified immunity, a court must evaluate two independent questions: (1) whether the officer's conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the incident."4 A constitutional right is "clearly established" if "every reasonable official would have understood that what he is doing violates that right."5

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.

A. The Fourth Amendment forbids using unreasonable force to "seize" a person.

The Fourth Amendment prohibits law enforcement officers from using "objectively unreasonable" force to "seize" a person.6 In Harris v. Roderick , a person shot by a federal agent brought a Bivens claim for a Fourth Amendment violation.7 We held that the officer lacked qualified immunity.8 Following the Supreme Court's decision in Graham v. Connor , we wrote that "the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."9 "Ordinarily," we continued, "our inquiry is ... whether the totality of circumstances, (taking into consideration the facts and circumstances of the particular case including the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the officers or others; and whether he is actively resisting arrest or attempting to evade by flight) justified the particular type of seizure."10

Then, quoting the Supreme Court's decision in Tennessee v. Garner , we wrote that even when a felony suspect tries to escape, "where the suspect poses no immediate threat to the officer and no threat to others, the harm from failing to apprehend him does not justify the use of deadly force to do so."11

These principles are clearly established.12 As we held in Harris , every reasonable law enforcement officer should know that "officers may not shoot to kill unless, at a...

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