In
2010 and 2012, while on duty, two different Border Patrol agents shot from
American soil across the border into Mexico, each killing a Mexican teenager.[1] This post centers on the civil case levied
against the border agent involved in the latter incident; it ultimately forms
legal conclusions on the viability of holding the agent civilly liable for
money damages based on a Bivens claim.[2]
Part I reviews the facts and holding of
the case. Part II lays out the two major
legal frameworks at play. Part III
examines the U.S. Court of Appeals for the Ninth Circuit’s decision on the
matter, which both antagonizes and rejects that of the U.S. Court of Appeals for
the Fifth Circuit.[3] The remaining Part offers a commentary on both
the soundness of the Ninth Circuit’s decision and a prediction of the future.
I.
Facts and Holding
On
October 10, 2012, police officers in Nogales, Arizona, enlisted backup from the
U.S. Border Patrol when responding to an incident at the United States’ border
with Mexico.[4] Two hooded men had scaled the fence and
disappeared into the United States, likely for the purpose of smuggling
marijuana into the border town.[5]
After initially evading authorities, the
two men soon resurfaced at the fence and had already made their ascent back
into Mexico when the police found them.[6]
During this time, Agent Lonnie Swartz
arrived on the scene.[7]
Exactly what happened next remains in
controversy.[8] Regardless of who recounts the story, the
following facts do not change: while standing in Arizona, without sounding a
warning, Agent Swartz drew his gun and volleyed at least fourteen shots through
the gaps of the fence into Mexico; ten of these pierced the turned back of an
unarmed sixteen-year-old Mexican boy named José Antonio Elena Rodriguez.[9] José Antonio collapsed and died on the street
in Mexico.[10] José Antonio’s mother, Araceli Rodriguez,
subsequently filed for Bivens redress
on behalf of José’s estate, suing Agent Swartz for money damages and alleging
that Agent Swartz’s conduct culminated in an unconstitutional seizure.[11]
Senior Ninth Circuit Judge Andrew
Kleinfeld, writing for two other judges, affirmed the holding of the U.S.
District Court for the District of Arizona, denying Agent Swartz qualified
immunity, extending to José Antonio the protection of the Fourth Amendment, and
permitting a Bivens remedy to Ms.
Rodriguez.[12] In affirming the lower court’s decision to
expand Bivens, the Ninth Circuit
split with the Fifth Circuit.[13]
II.
Legal Background
In
a border straddling situation like this, obstructing the path to a successful Bivens claim are three sizable hurdles.[14]
First, the government officer’s actions
must have been sufficiently egregious to bar qualified immunity.[15]
Second, the injured plaintiff must
actually be entitled to constitutional protection; when outside the physical confines
of American sovereign land, neither foreigners nor American citizens are
guaranteed freedom from government infringement.[16]
Finally, the plaintiff must reckon with
the ample constraints inherent in Bivens
actions and their status as a “disfavored” remedy.[17]
In
José Antonio’s case, while there is small room for debate, the facts more
probably support rejecting the qualified immunity defense, clearing this
initial hurdle.[18] However, the collections of caselaw
encompassing both the Fourth Amendment issue and the Bivens issue are murky at best.
A.
The
Different Approaches of Verdugo-Urquidez
and Boumediene
A
question regarding the extraterritoriality of the Fourth Amendment implicates two
cases: United States v. Verdugo-Urquidez[19]
and Boumediene v. Bush.[20]
In Verdugo-Urquidez,
a plurality of the United States Supreme Court held that extraterritorial
protection extends only to a “class of persons who are part of a national
community or who have otherwise developed sufficient connection with this
country to be considered part of that community.”[21]
However, a majority[22]
of the Court agreed emphatically that the practical ramifications both for the
judiciary and the political branches warranted curbing the Fourth Amendment’s
reach in that case.[23]
In Boumediene
v. Bush, the next case to address the extraterritorial reach of the U.S. Constitution,
Justice Anthony M. Kennedy used his Verdugo-Urquidez
concurrence as a springboard for his majority opinion, carving out a flexible,
middle ground between allowing the Fourth Amendment to have a global reach and limiting
the Fourth Amendment’s reach to the United States alone.[24]
In Boumediene,
Justice Kennedy unearthed the “common thread” running through all of the old
cases: “questions of extraterritoriality turn on objective factors and
practical concerns, not formalism.”[25]
Boumediene
instructs courts to decide issues of extraterritoriality on a case-by-case
using an all-encompassing, multi-factored weighing test, in which no single
factor is completely dispositive, though immediate practical obstacles for the
government and for courts seem to have special weight.[26]
B.
The Impracticable
Bivens Standard
The
Bivens remedy appeared as a kind of
federal counterpart to a 28 U.S.C. § 1983 action: invoking Bivens, a plaintiff may sue a federal agent – and by extension, the
government itself – for money damages,
if the agent acted under the color of federal authority while violating a
constitutional right.[27]
While the Bivens remedy exists in the shadow of a long history of extremely
limited use,[28]
it has been expressly preserved for plaintiffs in Fourth Amendment seizures
cases.[29]
Most recently Ziglar v. Abbasi organized into a
framework the many encumbrances that the Court had previously used to contain Bivens.[30]
First, the ruling court must decide
whether the case presents “a new context” that would require expanding Bivens.[31]
Should the case require an extension of Bivens, the remedy may only be
sanctioned for those few claimants whose situation presents no “special factors
counselling hesitation.”[32]
Essentially, if a fact gives a court any
pause as to the prudence of allowing the extension, the remedy is barred.[33]
The impossibly strict framework seems
somewhat at odds with the Court’s refusal to overrule Bivens and nearly irreconcilable with the Court’s move to
theoretically preserve the possibility of extending the remedy. In conducting the special factors analysis, it
is imperative for the ruling court to keep in mind the separation of powers
bases upon which most of Bivens’s limitations
rest.[34] “[S]pecial factors” to consider include:
whether the case would require a judicial inquiry into national security;
whether the case would require an assessment of impact on government operations
systemwide, including costs and consequences; whether there are alternate
remedies available to the plaintiff; and whether Congress’s interests in the
issue were frequent and intense, which would shed light on whether Congress
purposefully abstained from creating a remedy.[35]
III.
Instant Decision
The
Ninth Circuit, relying on Boumediene to
extend the Fourth Amendment across the border, determined that the Bivens progeny tolerated an extension
and granted Ms. Rodriguez damages.[36] It noted that, for Ms. Rodriguez, there were
no alternative remedies; it was “Bivens
or nothing.”[37] The court did not find the lack of an
established congressional remedy for the particular situation suggestive,
explaining the situation more likely presented an odd set of facts which simply
did not fit with any statutes.[38] Neither did special factors counsel
hesitation; regarding national security, the court noted that “it cannot harm
national security to hold [Agent] Swartz civilly liable any more than it would
to hold him criminally liable, and the government is trying to do the latter.”[39] The Ninth Circuit also summarily dismissed
any idea that permitting the remedy would undermine the foreign policy
objectives of the political branches, calling the incident routine and akin to
many which are constantly heard without issue in several district courts along
the border.[40] Agent Swartz has petitioned for certiorari to
appeal the Ninth Circuit’s result.[41]
IV.
Comment
Even
if José Antonio had been throwing rocks, as the government argued in the
criminal case against Agent Swartz,[42]
Agent Swartz could have simply taken cover. Shooting José Antonio was a grossly
disproportional response undeserving of qualified immunity.[43] Unless the United States Supreme Court is
prepared to overrule the broadly applicable language in Boumediene and the hundred years’ worth of caselaw underpinning it,
Rodriguez has a compelling claim to constitutional protection.[44]
Affording Ms. Rodriguez relief would
undoubtedly call for an extension of Bivens.[45] Several members of the Court have shown
hostility to Bivens;[46]
given the remedy’s history, the Fifth Circuit’s ruling is unsurprising. However, the Ninth Circuit’s opinion is based
soundly in law and extends a remedy to Rodriguez following a particularly
egregious violation of her son’s constitutional rights. No special factors actually counsel
hesitation. The Fifth Circuit fretted
over national security, reasoning civil liability would cause an agent to
hesitate in making a decision necessary to protecting the border;[47]
yet it cannot be thwarted any more by the threat of Bivens liability than by the threat of criminal prosecution. There is not currently any ongoing specific
foreign policy to disturb.[48]
This case presents a very specific set
of facts and an outsized injury not typically present in other abuse of force
cases at the border. The near
impossibility of extending and successfully invoking Bivens ensures that it will only be used under the right
circumstances by a plaintiff who has no other means of redress. The Court intentionally left open the
possibility of expansion; following the Court’s framework, the Ninth Circuit
reasonably extended the remedy.[49]
For Ms. Rodriguez, it’s Bivens or nothing. If a Bivens
action does not exist for plaintiffs like her, for whom does it exist?
– Carleigh Cavender
[1] Mark Binelli, Ten Shots Across the Border, N.Y.
Times (Mar. 3, 2016), https://www.nytimes.com/2016/03/06/magazine/10-shots-across-the-border.html;
see also Rodriguez v. Swartz, 899
F.3d 719, 727 (9th Cir. 2018), cert.
petitioned, No. 18-309, 2018 WL 4348517 (U.S. Sept. 7, 2018); Hernandez v.
Mesa, 885 F.3d 811, 814 (5th Cir. 2018), cert.
petitioned, No. 17-1678, 2018 WL 3155839 (U.S. June 15, 2018).
[3] Binelli, supra note 1.
[4] See id.
[7] See id.
[8] Binelli, supra note 1; see also Rodriguez v. Swartz, 899 F.3d 719, 729 (9th Cir. 2018), cert. petitioned, No. 18-309, 2018 WL
4348517 (U.S. Sept. 7, 2018).
[9] Binelli, supra note 1.
[10] Id.
[11] Rodriguez, 899 F.3d at 727–28.
[12] Id. at 748.
[13] Compare id., with Hernandez v. Mesa, 885 F.3d 811, 823 (2018), cert. petitioned, No. 17-1678, 2018 WL
3155839 (U.S. June 15, 2018).
[14] See Rodriguez, 899 F.3d at 737–38.
[15] The availability
of qualified immunity is predicated on two considerations: (1) whether the government
official’s actions violated a constitutional right; and (2) whether that
constitutional right was clearly established at the time the officer
acted. Id. at 728.
[16] See id. at 737. For example, in Ross v. McIntyre, a British sailor employed by an American vessel
in Japan was denied constitutional protection even though he was “under the
protection and subject to the laws of the United States equally with the seaman
who was native born.” 140 U.S. 453, 479
(1891). In Reid v. Covert, the Court extended constitutional protection to
American citizens tried abroad but focused on the lack of practical barriers
present in affording the protection to distinguish Ross. 354 U.S. 1 (1957). The plurality in Reid ultimately refused to overrule Ross’s implication that citizenship does not guarantee protection. See id. at
78 (Clark, J. dissenting). Justice Kennedy’s majority opinion in Boumediene v. Bush followed suit,
predicating extraterritoriality on practical considerations more than any other
factor. See 553
U.S. 723 (2008).
[17] Rodriguez, 899 F.3d at 749.
[18] Id.
[19] 494 U.S. 259, 265
(1990).
[20] 553 U.S. 723.
[21] See Verdugo-Urquidez,
494 U.S. at 265. Justice William H. Rehnquist
arrived at this conclusion after examining the other instances in which the
framers employed the phrase “the people.” Id. at
265–66. However, Justice Rehnquist
himself admitted that “this textual exegesis is by no means conclusive . . . .”
Id.
[22] Justices John P. Stevens
and Anthony M. Kennedy flatly rejected Justice Rehnquist’s textualist argument.
Id.
at 275 (Kennedy, J., concurring); id.
at 279 (Stevens, J., concurring). In
defining the Constitution’s parameters in his concurrence, Justice Kennedy
considered several cases which expound on factors relevant to the entire
Constitution’s reach, as opposed to its specific provisions. See id. at
275 (Kennedy, J., concurring).
[23] Verdugo-Urquidez, 494 U.S. at 273–74. The Court explained that on this set of
facts, a Fourth Amendment with global force could “plunge [the political
branches] into a sea of uncertainty as to what might be reasonable in the way
of searches and seizures . . . .” Id. It would additionally necessitate
“impracticable and anomalous” duties for law enforcement officers, id. at 278, who would be required to
secure “dead letter” seizure warrants from courts, which would be ineffective
beyond their jurisdiction. Id. at 275.
[24] See 553 U.S. at 723.
[25] Id. at 762–64. Justice Kennedy found Johnson v. Eisentrager to be one of the most compelling bases for
this proposition. See id. In Eisentrager,
the Court very seriously entertained granting habeas relief to enemy aliens
convicted of war crimes who were imprisoned by the U.S. Government in Allied-occupied
Germany shortly after World War II. Eisentrager
v. Johnson, 339 U.S. 763 (1950).
[26] Boumediene, 553 U.S. at 266. Remarkably, in granting habeas relief to
designated enemy detainees in Guantanamo, the Boumediene Court was especially persuaded by Johnson v. Eisentrager. See id. at 765–66.
[27] Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392, 397
(1971). While the Fourth Amendment does
not “in so many words” provide for money damages, id. at 396, the idea was to give effect to its provisions by
allowing for compensation in the event of an infringement, id. at 397.
[28] Since Bivens has existed as a remedy, it has
only been extended to two new contexts beyond the Bivens circumstances. Id. at 1860; see Davis v. Passman, 442 U.S. 228
(1979) (sex discrimination); Carlson v. Green, 446 U.S. 14 (1980) (inmate
health needs).
[29] 137 S. Ct. 1843
(2017). Ziglar weakened Bivens
dramatically, yet it refused to invalidate the remedy entirely. The Court emphasized that “it must be
understood that this opinion is not intended to cast doubt on the continued
force, or even the necessity, of Bivens
in the search-and-seizure context in which it arose.” Ziglar,
137 S. Ct. at 1856–57.
[30] Id. at 1857 (noting Bivens’s status as a “disfavored” remedy and noting the numerous
cases in which the Court had declined to extend it).
[31] Id. at 1859. “If the case is different
in a meaningful way from previous Bivens
cases decided by this Court, then the context is new.” Id.
at 1859. Meaningful differences may
include, e.g., “the rank of the officers involved; the constitutional right at
issue; . . . the extent of judicial
guidance [for the official conduct]; . . . the risk of disruptive intrusion by
the Judiciary into the functioning of other branches; or the presence of
potential special factors that previous Bivens
cases did not consider.” Id. at 1859–61. The Court’s longstanding reluctance to extend
Bivens liability “to any new context or new category of defendants” further limits
the remedy’s expansion. See Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 68 (2001).
[32] Id. at 1857.
[33] Id. at 1857–58.
[34] Id. at 1857.
[35] See id. at 1861–63.
[36] Rodriguez v.
Swartz, 899 F.3d 719, 726, 748 (9th Cir. 2018), cert. petitioned, No. 18-309, 2018 WL 4348517 (U.S. Sept. 7, 2018).
[37] Id. at 744.
[38] Id. at 739; see id. at 735–736.
[39] Id. at 746.
[40] Id. at 746–47 (“[D]istrict courts along
the border address such incidents routinely, in smuggling cases particularly,
concurrently with whatever diplomacy may also be addressing them.”).
[41] Petition for Writ
of Certiorari, Swartz v. Rodriguez, No. 18-309, 2018 WL 4348517 (U.S. Sept. 7, 2018).
[42]
See Amicus Curiae Brief of the United States in Support
of Reversal at *4, Rodriguez
v. Swartz, 899 F.3d 719 (9th Cir. 2018),
2016 WL 837838.
[43] The status of
rock throwing as justification for the use of deadly force is highly
controversial, though not against Border Patrol protocol. See Is
Firing Bullets at Rock Throwers a Justified Use of Force by the Border Control,
WOLA: Commentary (Oct. 23, 2012), https://www.wola.org/analysis/is-firing-bullets-at-rock-throwers-a-justified-use-of-force-by-the-border-patrol/.
However,
here, where José Antonio was shot ten times while his back was turned, and
given the physical logistics of the height of the cliff and that of the fence, Rodriquez, 899 F.3d at 726, it seems
implausible that the child posed any real threat to Swartz. See also
Perla Trevezio, Border Patrol Agent in Cross-Border
Shooting Death Faces Retrial This Week in Tucson, Tuscon.com (Oct. 22, 2018), https://tucson.com/news/local/border-patrol-agent-in-cross-border-shooting-death-faces-retrial/article_f397e2b6-ab48-593d-b1e3-34a85bee94b3.html#1.
[44] See Rodriquez, 899 F.3d at 728.
[45] See id. at 738–39.
[46] Justices John G. Roberts
and Samuel A. Alito joined Justice Kennedy’s highly restrictive opinion in Ziglar. Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). Justice Clarence Thomas has rejected the
expansion of Bivens even when it is
logical. Id. at 1870 (Thomas, J., concurring).
[47] Hernandez v.
Mesa, 885 F.3d 811, 818–19 (5th Cir. 2018), cert.
petitioned, No. 17-1678, 2018 WL 3155839 (U.S. June 15, 2018).
[48] As Judge Pardo
noted in his dissent, “if there is a ‘U.S. foreign policy interest [implicated]
in granting or denying a Bivens claim
to foreign nationals, it is difficult to see how that interest would apply only
if the injury occurred abroad.’” Id. at 829 (Prado, J., dissenting). In other words, foreign policy is implicated
any time a foreign national dies on American soil. The Fifth Circuit does not categorically
suggest to bar foreigners from ever asserting a Bivens claim, id. at 82, so
the purpose of asserting this as a special factor is unclear.
[49] See Rodriguez, 899 F.3d at 748.
