A Ninth Circuit appeals court ruling may bring a question back to the Supreme Court about the ability to sue border agents at the United States-Mexico border for fatal shootings.
Last Tuesday, the Ninth Circuit appeals panel issued its ruling in Rodriguez v. Swartz, which is a dispute about a U.S. border patrol agent’s civil lawsuit immunity related to his fatal shooting of a teenager standing across from him on Mexico’s side of the border in Nogales.
Lonnie Swartz, the agent, has claimed the deceased, called J.A. in court documents, threw rocks at him in the October 2012 incident. Swartz, standing on the U.S.-side of a border fence in Arizona, shot and killed J.A. The 16-year-old’s mother, Araceli Rodriguez, sued Swartz in civil court for monetary damages.
In a separate case, Swartz faced criminal charges after the incident. In April 2018, a divided jury found Swartz not guilty of murder and couldn’t reach a verdict on manslaughter charges. In May, the U.S. attorney’s office said it would seek a new manslaughter trial, to begin this October.
Ninth Circuit Senior Judge Andrew J. Kleinfeld said in his 2-1 majority opinion that his court agreed with a district court ruling. That decision held Swartz couldn’t use the Constitution’s Fourth Amendment to seek qualified immunity from a lawsuit arising from his on-duty actions as a border agent.
Judge Kleinfeld said the Ninth Circuit majority “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 Ninth Circuit was given an additional question to address when the Justice Department joined Swartz’s appeal and claimed Swartz couldn’t be sued under a “Bivens” precedent. In a 1971 ruling in Bivens v. Six Unknown Named Agents, the Supreme Court said that under certain circumstances, federal officers could be sued on Fourth Amendment grounds if they violated a person’s rights while on duty.
Kleinfeld said he didn’t agree with the Justice Department. Citing a 2017 Supreme Court decision, Hernandez v. Mesa, Kleinfeld said that the Ninth Circuit majority “despite its reluctance to extend Bivens, … 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.”
In Hernandez v. Mesa, the Supreme Court considered a case from the Fifth Circuit where a Mexican teen was shot and killed while standing on Mexico's territory by a U.S. border patrol agent on the United States side of the border in El Paso, Texas. In a per-curium opinion, the case was sent back to the Fifth Circuit to consider the Bivens question, which hadn’t been addressed originally.
In March 2018, an en banc Fifth Circuit panel decided in the Hernandez re-hearing that his family couldn’t pursue a Bivens claim that would allow a civil lawsuit against the border agent in Texas. The decision was appealed to the Supreme Court in June 2018.
Judge Milan D. Smith in his Ninth Circuit dissent predicted his court’s ruling, if it stands on appeal within the circuit, would make its way to the Supreme Court, too. “The question is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts?” Smith asked.
“In this case, the obvious answer is Congress. We lack the authority to extend Bivens,” he argued. “In holding to the contrary, the majority creates a circuit split, oversteps separation-of-powers principles, and disregards Supreme Court law.”
Smith also referred to recent Ninth Circuit cases overturned by the Supreme Court. “The majority authorizes an impermissible extension of Bivens to a new context despite the presence of numerous special factors counseling judicial hesitation. In doing so, the majority creates a circuit split and tees up our court for a new ‘chastening' by the Supreme Court.”
Smith declined to comment on two other questions in the case: the Constitution’s extraterritorial reach and Swartz’s qualified immunity defense.
Scott Bomboy is editor in chief of the National Constitution Center.