Ninth Circuit Says Cross Border Shooting Case Can Go Forward

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled yesterday in Rodriguez v. Swartz that a case against a U.S. Border Patrol agent for shooting and killing a Mexican youth across the U.S.-Mexican border can go forward. The court denied qualified immunity for the agent and ruled that the plaintiff had a valid Bivens claim.

This case is yet another cross-border shooting case, different than Hernandez v. Mesa. Recall that the Court remanded that case for further proceedings on the Bivens question. The Fifth Circuit held that Bivens did not provide a remedy in that case, because the case raised a new Bivens context, and because "extending Bivens would interfere with the political branches' oversight of national security and foreign affairs"; "would flout Congress's consistent and explicit refusals to provide damage remedies for aliens injured abroad"; and "would create a remedy with uncertain limits."

The Ninth Circuit ruling thus splits with the Fifth Circuit.

Rodriguez arose when a Border Patrol agent shot and killed a Mexican youth across the border for no apparent reason whatsoever, and without knowing the youth's nationality. The youth's representatives sued under Bivens.

The Ninth Circuit first denied qualified immunity to the agent. The court said that the Fourth Amendment applies to this kind of situation, that it clearly prohibits this kind of "seizure," and that it was clearly established at the time that the agent couldn't shoot the youth. The court distinguished Verdugo-Urquidez, saying that the agent in this case "acted on American soil subject to American law."

The court went on to rule that Bivens provided a remedy. The court said that while this case indeed presented a new Bivens context, Rodriguez had no other adequate remedy, and there were no "special factors" counseling hesitation.

Judge M. Smith dissented, arguing that Bivens did not extend to this case, and that the court's ruling created a circuit split and disregarded Supreme Court law.