Rodriguez v. Swartz, No. 14-02251 (D. Ariz., filed Sept. 8, 2014)

This civil rights case involves the brazen and lawless killing of a sixteen-year-old boy, J.A., by U.S. Border Patrol Agent Lonnie Swartz. On the night of October 10, 2012, J.A., a Mexican national, was peacefully walking along a street in his hometown of Nogales, Sonora, Mexico. The street on which he was walking, Calle Internacional, runs parallel to the border fence. At approximately 11:30 pm, Agent Swartz, standing on the U.S. side of the fence, opened fire. An autopsy report shows that J.A. was fatally hit with ten bullets. At the time of the shooting, the agents and/or officers were not under threat by J.A. or anyone else standing near him — much less in immediate danger of deadly or serious bodily harm. J.A. death was senseless and unjustified. Plaintiff Araceli Rodriguez filed this Bivens action for monetary damages for the killing of her youngest son, alleging claims under the Fourth and Fifth Amendments to the United States Constitution.

On July 10, 2015, the District Court granted in part and denied in part Defendant’s motion to dismiss. Disagreeing with the en banc Fifth Circuit, Chief Judge Raner C. Collins held that Rodriguez’s Fourth Amendment claim could proceed and that Agent Swartz was not entitled to qualified immunity.

In mid-September, 2015, the Department of Justice charged Swartz criminally with second degree murder.

In the civil case, Defendant filed a Notice of Appeal with the Ninth Circuit. Briefing was completed as of June 1, 2016.  On October 21, 2016, the parties argued the case at the Ninth Circuit. The panel indicated its intent to hold its decision pending the Supreme Court’s resolution of Hernandez v. United States, which was decided on June 26, 2017.

On August 7, 2018, the Ninth Circuit, in an opinion by Judge Kleinfeld with a dissent from Judge M. Smith, affirmed the District Court’s decision denying Defendant qualified immunity, reasoning that “J.A. had a Fourth Amendment right to be free from the unreasonable use of deadly force by an American agent acting on American soil, even though the agent’s bullets hit him in Mexico.” The Court extended a Bivens remedy, finding that Plaintiff had no other adequate alternative remedy and that no “special factors” counseled hesitation in extending such a remedy. The Court did not reach the Fifth Amendment arguments but stated that, in the event the Fourth Amendment does not apply because J.A. was in Mexico, the Fifth Amendment’s “shock the conscience” test may still apply.

• First Amended Complaint
• Agent Swartz’s Motion to Dismiss
• Plaintiff’s Opposition to Motion to Dismiss
• Order Denying Motion to Dismiss
• Appellant’s Opening Brief
• United States Amicus in Support of Reversal
• Appellee’s Opposition Brief
• Con Law & Foreign Affairs Law Professors Amicus in Support of Appellee
• HRW Amicus in Support of Appellee
• Law Professors Amicus in Support of Appellee
• Restore the 4th Amicus in Support of Appellee
• Mexican Government Amicus in Support of Appellee
• Border Advocacy Groups Amicus in Support of Appellee
• U.S.-Mexico Border Scholars Amicus in Support of Appellee
• Appellants’ Reply Brief
• Ninth Circuit Decision

Press

• Border Patrol agent indicted for murder in ’12 cross-border shooting death, Fox News (Sep. 24, 2015)
• Border Patrol agent indicted in 2012 fatal shooting, CBS News (Sep. 24, 2015)
• Border Patrol agent is indicted in fatal shooting of Mexican teen, LA Times (Sep. 24, 2015)
• US border patrol agent indicted in fatal shooting of teen on Mexican border, The Guardian (Sep. 24, 2015)

Contact: Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | mebadolahi@aclusandiego.org