4th Amendment applies across borders, 9th Circuit panel says

A divided 9th U.S. Circuit Court of Appeals panel denied immunity to a U.S. border patrol agent who fired across the U.S.-Mexico border and killed a Mexican citizen.

The 2-1 majority opinion Tuesday opened the door for the victim’s mother to sue for damages, extending a U.S. Supreme Court decision regarding Fourth Amendment violations by the federal government across the border.

The decision potentially created a circuit split with the 5th U.S. Circuit Court of Appeals.

Judge Milan Smith dissented, arguing the panel did not have the authority to extend the case to the cross-border context. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971).

“Based on the facts alleged in the complaint, Swartz violated the Fourth Amendment,” wrote Judge Andrew Kleinfeld for the majority, referring to the defendant, Lonnie Swartz, who allegedly fired the shots that killed Jose Antonio Elena Rodriguez in Nogales, Sonora, Mexico in 2012.

“It is inconceivable that any reasonable officer could have thought that he or she could kill J.A. for no reason. Thus, Swartz lacks qualified immunity,” Kleinfeld continued, using the initials of the victim. Rodriguez v. Swartz, No. 15-16410 (9th Cir. 2018).

Swartz fired between 14 and 30 bullets across the border, striking Rodriguez mostly in the back with 10 bullets, according to the decision.

Smith disagreed and said by expanding Bivens the court, “creates a circuit split, oversteps separation-of-powers principles, and disregards Supreme Court law.”

The ruling was also significant as it was the first time Fourth Amendment protections had been applied across borders, according to Lee Gelernt, one of the ACLU attorneys who argued the case.

“This is an enormously significant ruling because it makes clear that the Fourth Amendment prohibition against excessive force by law enforcement does not stop at the border,” Gelernt said.

Swartz filed the interlocutory appeal with the 9th Circuit, challenging a district court’s denial of qualified immunity and sought to contest the case on a motion to dismiss.

He argued he did not violate the U.S. Constitution because the Fourth Amendment did not apply to the search and seizure of a noncitizen’s property abroad.

In a separate criminal case, Swartz was found not guilty in April of second-degree murder and claimed during trial he shot at people throwing rocks through the border fence in Nogales, Arizona. The case is scheduled for a retrial in October.

The U.S. Department of Justice declined to comment on the case in an emailed statement, and U.S. Customs and Border Protection did not respond to an emailed request for comment.

Smith’s circuit split comments appear to refer to another, almost identical 2015 case that went the opposite way in the 5th Circuit.

In that case, a border patrol agent shot and killed a Mexican teenager while firing over the Texas-Mexico border.

An en banc 5th Circuit court found the victim, Sergio Hernandez, did not have Fourth Amendment rights as he was shot in Mexico and ruled that his family could not sue the agent who fired the shots for damages under Bivens. Hernandez v. Mesa, 885 F.3d 811, 814 (5th Cir. 2018).

That case has been appealed to the U.S. Supreme Court.

It was unclear at press time if Swartz intended to accept the decision, seek en banc review in the 9th Circuit or appeal the case directly to the high court.