Ninth Circuit Allows Cross-Border Shooting Case to Proceed, Splits with the Fifth Circuit

Earlier this month, the Ninth Circuit issued its decision in Rodriguez v. Swartz, 15-16149, affirming the denial of qualified immunity to a Border Patrol officer in the United States who shot and killed a Mexican citizen walking down a street in Mexico.  This is only one of a host of cross-border shooting incidents, the most famous of which was recently heard by the Supreme Court in Hernandez v. Mesa.  However, Hernandez did not reach the underlying constitutional question, vacating and remanding to the Fifth Circuit to determine if a Bivens remedy was available, in light of the Supreme Court's decision in Ziglar v. Abassi.

The Ninth Circuit's decision addresses the case in its earliest phases.  Swartz had moved to dismiss the complaint on the basis of qualified immunity.  The District Court denied the claim.  Swartz appealed.  On appeal, the Court took the facts as pled, which it described as "simple and straightforward murder."  J.A., a minor, was walking along a street in Nogales, Mexico.  Agent Swartz, unprovoked, fired his weapon across the border at J.A., firing between 14 and 30 bullets, hitting J.A. about 10 times, mostly in the back.  At the time of the shooting, Swartz had no way of knowing whether J.A. was an American or Mexican citizen, or whether he had any ties to the United States.

In addressing whether the Fourth Amendment applied, the Ninth Circuit relied on Boumediene v. Bush and distinguished United States v. Verdugo-Urquidez to find that J.A. was entitled to the protections of the Fourth Amendment.

The Court held as follows:

But this case is not like Verdugo-Urquidez for several reasons. For one, Verdugo-Urquidez addressed only “the search and seizure by United States agents of property that [was] owned by a nonresident alien and located in a foreign country.” That type of search and seizure implicates Mexican sovereignty because Mexico is entitled to regulate conduct in its territory. But unlike the American agents in Verdugo-Urquidez, who acted on Mexican soil, Swartz acted on American soil. Just as Mexican law controls what people do there, American law controls what people do here. Verdugo-Urquidez simply did not address the conduct of American agents on American soil. Also, the agents in Verdugo-Urquidez knew that they were searching a Mexican citizen’s property in Mexico, but Swartz could not have known whether J.A. was an American citizen or not.

The practical concerns in Verdugo-Urquidez about regulating conduct on Mexican soil also do not apply here. There are many reasons not to extend the Fourth Amendment willy-nillyto actions abroad, as Verdugo-Urquidez explains. But those reasons do not apply to Swartz. He acted on American soil subject to American law.

(footnotes omitted).

The Court noted it was creating a circuit split with the Fifth Circuit, but attempted to (unconvincingly, in my opinion) distinguish the case. 

Finally, the Court held that a Bivens remedy was appropriate, drawing a dissent from Judge Smith, who would have followed the Fifth Circuit's finding that a Bivens remedy was inappropriate in light of Abassi.

The Ninth Circuit, at the request of Swartz, has stayed its mandate pending a petition for certiorari.

The case is available here.