In Rodriguez v. Swartz, published August 7, 2018, the 9th Circuit affirmed denial of a motion to dismiss a Bivens action based on qualified immunity. The operative complaint that the decedent, a 16-year-old boy, was peacefully walking down a street in Nogales, Mexico that parallels the U.S.-Mexico border when the defendant, a U.S. Border Patrol Agent, fired multiple bullets across the border. Approximately 10 bullets struck the decedent, mostly in the back.
The panel ruled that the agent was not entitled to qualified immunity to the allegation that he violated the decedent's rights under the Fourth Amendment. The decedent had a Fourth Amendment right to be free from objectively unreasonable use of force by an American Agent on American soil, even though the decedent was a Mexican citizen on Mexican soil. An alleged shooting of a person without provocation or threat is an objectively unreasonable use of force that violates the Fourth Amendment. Use of deadly force is unreasonable unless there are strong countervailing governmental interests. There is no governmental interest in shooting a person who is not suspected of a crime, who is not fleeing or resisting arrest, and who is not a threat to anyone. The decedent's citizenship and ties to the United States (his grandparents were legal residents of the U.S.) are irrelevant to the qualified immunity analysis. The question is whether it was clearly established that it was unconstitutional for an officer on American soil to use deadly force without justification on a person of unknown nationality on the other side of the border. Because the unjustified killing obviously violated the decedent's Fourth Amendment rights, a case on "all fours" is not necessary to clearly establish the law on the subject. Further, a Fifth Amendment claim may exist, because the alleged conduct shocked the conscience.
The panel went on to rule (with a dissent) that a Bivens claim existed.
The panel emphasized that the case was based only on the allegations in the complaint, and had not yet been proven.
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