Mitra Ebadolahi Profile picture
Aug 7, 2018 25 tweets 7 min read Twitter logo Read on Twitter
THREAD on new 9th Circuit decision in Rodriguez v. Swartz, our (@ACLUaz @sdACLU + @ACLU) cross-#border shooting case: On Oct. 10, 2012, a U.S. Border Patrol agent on duty in Nogales, AZ fired between 14 & 30 bullets across the #border.…
Approximately 10 of those bullets hit J.A. Rodriguez, a 16 year old boy peacefully walking down the street on the other side of the #border wall, in Nogales, Mexico.
The 9th Circuit opinion first *affirms* the AZ district court's decision denying Agent Swartz qualified immunity: 📢📢📢"It is inconceivable that any reasonable officer could have thought that he or she could kill J.A. for no reason." Slip Op. at 9.
The Fourth Amendment "prohibits law enforcement officers from using 'objectively unreasonable' force to 'seize' a person." And "these principles are clearly established." Slip Op. at 9-10.
Agent Swartz argued that because J.A. was a Mexican citizen in Mexico when he was shot, J.A. was "seized" abroad and so the Fourth Amendment does not apply. (Yes, you read that right.) Slip Op. at 11.
The Ninth Circuit rejects this argument, emphasizing that here, the #Border Patrol agent "acted on American soil." Also, the agent "could not have known whether J.A. was an American citizen or not" at the time he opened fire.
📢📢📢"Applying the Constitution in this case would simply say that American officers must not shoot innocent, non-threatening people for no reason. Enforcing that rule would not unduly restrict what the United States can do either here or abroad." Slip Op. at 16.
And "the government had *no* interest whatsoever in shooting J.A. He was not suspected of any crime. He was not fleeing or resisting arrest. And he did not pose a threat of harm to anyone at all. The use of deadly force was therefore unreasonable under the #4A." Slip Op. at 16.
The qualified immunity analysis is important: Agent Swartz had argued that "when he shot J.A., it was not clearly established that he could not shoot someone on the other side of the #border." Ninth Circuit: "WE CANNOT AGREE." Slip Op. at 17-18.
J.A.'s right not to be shot in this manner was "clearly established." "When he shot J.A., Swartz could not have known whether the boy was an American citizen. Thus, Swartz is not entitled to qualified immunity on the bizarre ground that J.A. was not an American." Slip Op. at 19.
"We are unable to imagine a serious argument that a federal agent might not have known that it was unlawful to shoot people in Mexico for no reason." Slip Op. at 21.
📢📢📢"Swartz did not have to determine how much force to use; he was not permitted to use *any* force whatsoever against someone who was innocently walking down a street in Mexico." Slip Op. at 21-22.
Notably, the Ninth Circuit says that it does not reach our Fifth Amendment arguments, which the district court had dismissed after finding that the Fourth Amendment applied. BUT:
"If the Fourth Amendment does not apply because J.A. was in Mexico, then the Fifth Amendment 'shocks the conscience' test may still apply. Swartz's conduct would fail that test . . . "
📢📢📢" . . . We cannot imagine anyone whose conscience would not be shocked by the cold-blooded murder of an innocent person walking down the street in Mexico or Canada by a U.S. Border Patrol agent on the American side of the border." Slip Op. at 22.
OK, so no qualified immunity for Agent Swartz. Next up: is there a #Bivens remedy for this Fourth Amendment violation? #appellatetwitter
The majority says: YES. First, an overview of the Bivens doctrine is supplied. Slip Op. at 22-28. Then, it turns to the Supreme Court's decision in Ziglar v. Abbasi. Slip Op. at 28-30. #appellatetwitter
#SCOTUS precedent means courts "may expand Bivens into a new context" sometimes; if not, "there would be no need for 'caution' or treating expansion as a 'disfavored judicial activity,' or considering whether there was an adequate alternative remedy or special factors." Op. at 30
"This case presents a new Bivens context." So the questions are whether (1) J.A. has another adequate alternative remedy, and (2) there are special factors counseling hesitation before recognizing the remedy. Slip Op. at 31.
Ninth Circuit: J.A. Rodriguez has no adequate alternative remedy. Various alternatives are assessed and found inadequate. Slip Op. at 31-42. "In short, for Rodriguez, it is damages under Bivens or nothing, and Congress did not intend to preclude Bivens."
Step 2: There are no "special factors" counseling hesitation in recognizing a Bivens remedy. "The special factors analysis is almost always performed at a high level of specificity, not at the abstract level." Slip Op. at 43.
"Of course, in many hypothetical situations, a cross-border shooting would not give rise to a Bivens action. And in some situations (e.g., repelling an armed invasion or foiling violent smugglers), it would be frivolous to claim a Bivens remedy." Slip Op. at 44.
📢📢📢"But this case involves the unjustifiable and intentional killing of someone who was simply walking down a street in Mexico and who did not direct any activity toward the United States."
This case is not about policy or policymakers. It's not about national security. It's not about foreign policy. Extraterritoriality is a red herring. 📢📢📢"There is and can be no general rule against the use of deadly force by #Border Patrol agents." Slip Op. at 44-51. /fin

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