As promised, when the defendant sought to stay the Ninth Circuit’s mandate, a petition for certiorari has been filed in Swartz v. Rodriguez, which concerns a cross border shooting incident. I discussed the Ninth Circuit’s decision here.
The petition is available here.
The petition presents two questions: 1) the “antecedent question” of whether a Bivens remedy applies at all and 2) whether Officer Swartz was entitled to qualified immunity.
As to the first question, it argues that the context of a cross-border shooting is new for Bivens purposes and that four “special factors” counsel hesitation in extending Bivens to this new context. Those special factors are: 1) foreign relations; 2) separation of powers; 3) the extraterritorial application of the Constitution in this case; and 4) the failure of Congress to act to provide a remedy.
I do not find the question of the extraterritorial application to be particularly convincing, because at the time Officer Swartz fired his weapon at J.A., the minor child, he had no idea if J.A. was a Mexican citizen, an American citizen, or whether he had any substantial ties to the United States. All he knew was that J.A. was in Mexico. The Supreme Court just last term in Hernandez v. Mesa frowned upon the use of unknown facts, learned only in hindsight, to justify a grant of qualified immunity. While this petition does ask a slightly different question, I do not believe that this makes a difference here.
Had J.A. been an American citizen, I believe he clearly should be entitled to a Bivens remedy, despite his presence in Mexico. The Supreme Court has consistently held, for over a century, that the Fourth Amendment travels with American citizens abroad. Given this, it does not seem extreme to extend the Bivens remedy abroad to the same extent. For reasons I have articulated elsewhere, I believe that the Fourth Amendment follows the conduct of U.S. officials wherever they act. And in this case, the action taken by Swartz undeniably occurred on U.S. soil, even though the effects occurred in Mexico.
In last term’s Ziglar v. Abbasi, the Court appeared to restrict Bivens to the three contexts in which it had previously been held to apply - unlawful searches and seizures under the Fourth Amendment, due process claims under the Fifth Amendment, and claims under the Eighth Amendment. Here, this seems like a classic Bivens case - indeed, unlike the search in Bivens, the seizure here was much more extreme. Only if the Court takes an extremely cramped view of the context can it be said to be materially different from Bivens itself.
While Congress could make matters a great deal clearer by enacting a statutory remedy for these types of cross-border shootings, its inaction, especially in light of Bivens, does not deprive the Court of the ability to recognize this three-decades old remedy in this familiar context.