Rodriguez v. Swartz

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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, no official was under any 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, unjustified, and unlawful. 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. Following several postponements, the Swartz criminal trial began in Tucson on March 22, 2018.  The jury found Swartz not guilty of second-degree murder on April 23, 2018, after hearing several weeks of testimony from Nogales Police Department officers, Border Patrol agents, forensics experts, and Swartz himself.  The same jury failed to arrive at a unanimous decision as to the lesser-included offense of voluntary manslaughter, leaving open the door for a future criminal prosecution of the lower-level offense.  On May 12, 2018, the U.S. Attorney Office in Tucson announced that it would re-try Swartz on the lesser charge. Swartz was subsequently acquitted of involuntary manslaughter on November 21, 2018.

In the civil case, Defendant filed a Notice of Appeal with the Ninth Circuit. Briefing was completed as of June 1, 2016 and oral argument held on October 21, 2016. 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, if the Fourth Amendment did not apply because J.A. was in Mexico, the Fifth Amendment’s “shock the conscience” test may still apply.

Unfortunately, on May 28, 2019, the Supreme Court granted certiorari for a second time in Hernandez v. United States, sub nom. Hernandez v. Mesa, and the court stayed Rodriguez pending the outcome of Hernandez. On February 25, 2020, the Supreme Court issued a second decision in Hernandez, holding that the Hernandez family could not rely on Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) to bring their claims. This outcome essentially foreclosed the possibility of a Bivens remedy in Rodriguez as well. As a result, the Supreme Court granted certiorari in Rodriguez, vacated the Ninth Circuit’s 2018 opinion, and remanded the case back to the Ninth Circuit for consideration in light of Hernandez. On April 7, 2020, the Ninth Circuit likewise vacated the district court’s decision and remanded the proceedings. Following the remand, the case was dismissed and is now closed.

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