Ninth Circuit: Sorry, But We Have No Way To Hold Border Patrol Agents Accountable For Killing People In Mexico

from the only-exact-replicas-of-Bivens-are-accepted dept

Thanks to the Supreme Court, it’s pretty much legal for US law enforcement officers to kill people in Mexico. I know, that doesn’t seem right but that’s the way it plays out. So long as only bullets cross the border, the extraterritorial, extrajudicial killings are incapable of being remedied by a civil rights lawsuit.

Early last year, the Supreme Court upheld a Fifth Circuit decision refusing to extend Bivens to cover the killing of Mexican teen Sergio Adrian Hernandez Guereca by US Border Patrol agent Jesus Mesa, Jr. According to the agent, a group of teens were running back and forth across a culvert to touch the border fence. He also claimed they were “pelting” him “with rocks.” (Cell phone footage of the killing contradicted Mesa’s rock-throwing claim.) Apparently, this conflict could not be resolved without deadly force. Mesa shot across the border, killing the fifteen-year-old.

After two passes at the civil rights suit at the appellate level, it moved forward to the Supreme Court, which ruled that Bivens does not cover cross-border shootings. Without a cause of action, there can be no lawsuit. Mesa escaped even a limited form of justice and the Supreme Court’s recommendation was basically to avoid being shot on the wrong side of the border. The nation’s top court further refused to insert itself in this sort of international matter, recommending only that both governments (US/Mexico) try to work something out that will possibly allow people to seek justice for extraterritorial, extrajudicial killings.

This decision has now paid off for another perpetrator of an extrajudicial, extraterritorial killing. In 2011, US Border Patrol agent Dorian Diaz shot and killed Jose Alfredo Yanez, claiming Yanez tried to hit him with a nail-studded table leg through a hole in the border fence before mounting the fence to throw rocks at him. Rather than retreat beyond rock-throwing distance, Diaz shot Yanez, who landed literally across the border line.

If he had landed wholly in the United States, his survivors might have had a case. But the US government definitely didn’t want his survivors to sue successfully, so it hired a surveyor to map out Yanez’s dead body to determine how much of it was laying in which country. The final call? Mostly in Mexico. (You can see that surveyor’s photo here. [Content Warning: blood/death])

And the Ninth Circuit’s final call [PDF]? This killing isn’t enough like the original Bivens case to be pursued as a Bivens case. Because killing people at the border isn’t like a warrantless search of a house, the Border Patrol agent will be allowed to walk away from this lawsuit.

Here we confront a new Bivens context because the claims against Fisher and Diaz “differ[] in a meaningful way” from prior Bivens cases. The most analogous Supreme Court case—and the only one to approve a Bivens remedy for an excessive force claim—is Bivens itself.4 There, the plaintiff alleged that federal narcotics agents violated his Fourth Amendment rights by arresting him, handcuffing him in his home, and searching his home without probable cause or a search warrant. Bivens, 403 U.S. at 389–90. This case, by contrast, involves a fatal shooting, at the border, by a federal agent, of a Mexican national who crossed into the United States. The shooting allegedly occurred pursuant to the “Rocking Policy,” an executive policy authorizing deadly force in response to rock throwing. Though there are similarities between this case and Bivens, the differences suffice to satisfy the Court’s permissive test for what makes a context “new.”

Once again, the message being sent by the courts to foreign citizens is: try not to get killed by a federal agent. Our hands are tied, even though we did most of the knot-tying ourselves.

This case is a paradigmatic example of congressional parameters and Supreme Court precedent defining the scope of relief. The Alien Tort Statute does not reach the challenged conduct and the request for relief under the Federal Tort Claims Act came too late. And in accord with Abbasi and Hernandez, we conclude that a special factor precludes relief under Bivens.

The Supreme Court’s decision also means another case handled by the Ninth Circuit involving the killing of a Mexican citizen by a US federal agent has also been dismissed. The Appeals Court originally stripped immunity from Border Patrol agent Lonnie Swartz, who fired 16 bullets through a fence at 16-year-old Jose Antonio Elena Rodriguez. Ten of those bullets hit Rodriguez, killing him. Again, the excuse for the shooting was rock-throwing. That case is now terminated, with the Ninth Circuit dismissing it with prejudice in early July in light of the Supreme Court’s decision in Hernandez.

It’s up to Congress to do something about this. It’s highly unlikely the Supreme Court will revisit this issue anytime soon. Until then, it’s open season on Mexican residents, provided they do all of their dying in their own country.

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Filed Under: 9th circuit, bivens, cbp, cross border killing, jesus mesa, mexico, sergio adrian hernandez guereca, supreme court

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