J.I. v. USA

J.I. v. USA, Case No. 1:18-at-00185 (E.D. Cal., filed March 15, 2018)

In the summer of 2016, J.I., a minor, traveled from Guatemala with her older sister to reunite with their mother in the United States. The sisters became lost in the area near the Presidio, Texas and Ojinaga, Chihuahua border. Afraid and thirsty, the sisters flagged down Border Patrol agents for help. The sisters were then taken into custody.

Once J.I. was in custody, a Border Patrol agent removed her from the cell she was in with her sister and took her to a small room, where he forced J.I. to remove her clothing and expose her breasts and genitalia. He then assaulted and battered J.I..

On March 21, 2017, J.I. submitted an administrative claim to the U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”), as required under the Federal Tort Claims Act (“FTCA”) . In a letter dated September 27, 2017,CBP replied for all named agencies and denied in full the administrative tort claim.

On March 15, 2018, the ACLU of Northern California filed an FTCA lawsuit against CBP alleging assault and battery, false imprisonment, intentional infliction of emotional distress, and negligence . The lawsuit also includes constitutional claims (violations of the Fourth and Fifth Amendments).

Counsel: ACLU of Northern California

Contact:  Julia Mass| ACLU of Northern California |jmass@aclunc.org

 

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Al Otro Lado v. Nielsen

Al Otro Lado, et al. v. Nielsen, et al., Case No. 3:17-cv-02366 (S.D. Cal., filed July 12, 2017)

On July 12, 2017, the American Immigration Council, along with the Center for Constitutional Rights and Latham & Watkins, LLP, filed a class action lawsuit challenging U.S. Customs and Border Protection (“CBP”)’s unlawful practice of turning away asylum seekers who present themselves at ports of entry along the U.S.-Mexico border.

The Plaintiffs in the case are Al Otro Lado (a non-profit legal services organization that serves indigent deportees, migrants, and refugees in Los Angeles and Tijuana) and six courageous asylum seekers who experienced CBP’s unlawful conduct firsthand.  Their experiences demonstrate that CBP uses a variety of tactics—including misrepresentation, threats and intimidation, verbal and physical abuse, and coercion—to deny bona fide asylum seekers the opportunity to pursue their claims.  The complaint alleges that CBP’s conduct violates the Immigration and Nationality Act, the Administrative Procedure Act, the Due Process Clause of the Fifth Amendment, and the doctrine of non-refoulement under international law.

On November 13, 2017, Plaintiffs filed a motion for class certification, which included dozens of declarations from asylum seekers CBP had turned away at the border. On November 28, 2017, the Court granted Defendants’ motion to transfer venue to the Southern District of California and dismissed all pending motions without prejudice. On December 15, 2017, Defendants again filed a motion to dismiss, and Plaintiffs opposed that motion. On February 5, 2018, Defendants filed a reply to Plaintiff’s opposition. On August 20, 2018, the court denied in part and granted in part the government’s motion to dismiss, allowing the majority of plaintiffs’ claims to go forward. On October 12, 2018, plaintiffs filed an amended complaint highlighting the Trump admistration’s specific implementation of the “turnback policy” as well as the administration’s own “zero-tolerance policy.”

Counsel: Latham & Watkins LLP | American Immigration Council | Center for Constitutional Rights | Southern Poverty Law Center

Contact: Manuel A. Abascal | Latham & Watkins LLP | manny.abascal@lw.com | 213-485-1234

FTCA Administrative Complaint Against Border Patrol Re: Two Sisters Sexually Assaulted by CBP Officer in Texas

FTCA Administrative Complaint Against Border Patrol Re: Two Sisters Sexually Assaulted by CBP Officer in Texas

In July 2016, two sisters — then 19 and 17 years old — lost their way while traveling to the United States from Guatemala, and encountered CBP officers after crossing the Texas-Chihuahua, Mexico, border. They asked for help and were taken to a CBP field office in Presidio, Texas. Once there, the sisters were led by a federal officer into a closet-like room one at a time, told to remove all their clothes, and sexually assaulted. The victims report that they continue to suffer severe emotional distress as a result of the assault.

The sisters reported the abuse shortly after it occurred to another CBP officer in the field office where they were held, and an investigation was launched by the Department of Homeland Security’s Office of Inspector General. The sisters were interviewed twice and asked to draw a depiction of the closet. Federal authorities have not pursued criminal charges against the officer, nor is it clear whether the officer has faced any disciplinary actions for his assaults on the sisters.

On March 22, 2017, the ACLU of Northern California filed two administrative claims under the Federal Tort Claims Act with the federal government on behalf of each of the sisters.

Media:

Counsel:  ACLU of Northern California

Contact: Angélica Salceda | asalceda@aclunc.org | (415) 621-2493

Alton Jones v. United States of America, et al.

Alton Jones v. United States of America, et al., No. 3:16-cv-01986-W-WVG (S.D. Cal., filed Aug. 8, 2016)

In August 2014, Alton Jones, a U.S. citizen who served as a Navy SEAL from 1977 to 1990, was assaulted by Border Patrol agents while out for a run at the Border Field State Park / Tijuana Estuary.  He was tackled to the ground and then detained, first at the State Park and then at the Imperial Beach Border Patrol Station, where he was held without charge or explanation overnight.  All told, he spent seventeen hours in Border Patrol custody before being released.  He was never charged with any offense.

On August 8, 2016, the ACLU of San Diego Border Litigation Project filed a federal complaint in the Southern District of California on Mr. Jones’s behalf, alleging violations of Mr. Jones’ Fourth Amendment rights. Additionally, under the Federal Tort Claims Act, Mr. Jones submitted an administrative complaint to the Department of Homeland Security and U.S. Customs and Border Protection, claiming $3 million in damages for false imprisonment, battery by a peace officer, assault, negligence, intentional infliction of emotional distress, and violation of the California Bane Act.

On October 20, 2017, CBP denied Mr. Jones’s administrative tort claim. On February 3, 2017, because his administrative claim was denied, the Border Litigation Project filed an amended complaint to add Mr. Jones’s tort claims. On April 7, 2017, Defendants filed an answer to Mr. Jones’s amended complaint. On April 10, 2017, Defendants filed a counterclaim against Mr. Jones, alleging assault.

Discovery commenced in May 2017 and concluded in April 2018. On January 12, 2018, Plaintiff and Counter-Defendant filed a motion for summary judgment on the government’s counterclaim, which the government opposed. On May 2, 2018, Defendants filed a combined motion for summary judgment as to all claims brought against them and on their counterclaim against Plaintiff. On May 16, 2018, Defendants, DHS and CBP, filed another motion for summary judgment, this time seeking to dismiss the FOIA claim. Plaintiff opposed both motions. As of August 2018, the motions are pending before the district court.

Counsel: ACLU of San Diego & Imperial Counties

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

FTCA Administrative Complaints Challenging Abuses from CBP Roving Patrols

FTCA Administrative Complaints Challenging Abuses from CBP Roving Patrols

When conducting enforcement operations within the United States, CBP regularly sends its officers on “roving patrols.” These patrols, conducted many miles away from the U.S. Border, often lead to the detention and interrogation of U.S. citizens without reasonable suspicion of any crime. Many of the U.S. citizens detained by CBP were targeted because of their ethnicity, and CBP officers have subjected citizens to verbal and physical abuse while checking their citizenship status. Collected here are examples of complaints that the ACLU has filed against CBP to address the continued violation of U.S. citizens’ rights at the hands of CBP.

2013 Office of the Inspector General Complaint

On October 9, 2013, the ACLU of Arizona and the ACLU Border Litigation Project  submitted an administrative complaint to the DHS Office of Inspector General (OIG) and DHS Office of Civil Rights and Civil Liberties (CRCL) concerning unlawful conduct of Border Patrol agents during roving patrols in Southern Arizona.  The complaint was submitted on behalf of 5 U.S. citizens who detail very serious incidents of verbal or physical abuse when their vehicles were stopped without reasonable suspicion by Border Patrol agents.  In at least two of the incidents, young children were traveling in the vehicles.

The complaint calls for the investigation of these incidents; a comprehensive review of complaints involving CBP roving patrols to determine whether Border Patrol agents are complying with their obligations under agency guidelines, the U.S. Constitution, and international law; and recommendations from OIG and CRCL regarding significant changes in CBP training, oversight, and accountability mechanisms necessary to address the problems and prevent further abuses.

2014 Office of the Inspector General Complaint

On January 15, 2014, the ACLU of Arizona and the ACLU Border Litigation Project submitted an administrative complaint to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties concerning abuses committed by Border Patrol agents at interior vehicle checkpoints in southern Arizona.  The complaint was submitted on behalf of 15 U.S. citizens, aged 6-69 years old, and detailed 12 incidents in which their rights were violated when they were stopped at 6 checkpoints over a period of a year and a half.

The complaint calls for the investigation of all of the incidents identified; a comprehensive review of all complaints regarding Border Patrol checkpoints over the past five years; a thorough review of Border Patrol checkpoint policies and practices to ensure that operations are in fact limited to briefly verifying citizenship and that agents are receiving guidance regarding the limits of their authority; and a review of all policies and procedures related to service canines, in light of widespread reports of “false alerts” by the dogs.

2015 Federal Tort Claims Act Administrative Complaint

On May 19, 2015, the ACLU of Arizona filed two claims with the federal government under the Federal Tort Claims Act (“FTCA”) on behalf of an Arizona woman seeking monetary damages for egregious and repeated rights violations by U.S. Border Patrol agents.

The first claim arises out of an incident on May 21, 2013, in which Border Patrol agents stopped Clarisa Christiansen and her two young children without cause while the family was driving home from school.  After Ms. Christiansen demanded an explanation, the agents threatened to deploy a Taser and then threatened to cut her out of her seatbelt with a knife.  The agents subsequently slashed a rear tire and left Ms. Christiansen and her children stranded on a hot desert road with a flat tire and no explanation.

In October 2013, the ACLU submitted a complaint to DHS oversight agencies on behalf of Ms. Christiansen and four others who were subjected to unlawful “roving patrol” stops by Border Patrol.  More than a year and a half later, those agencies have yet to respond.

The second claim was filed in response to years of unauthorized and unlawful entries by Border Patrol agents onto the family’s private property west of Tucson.  On a weekly basis, Border Patrol helicopters buzz the family’s home at extremely low altitudes, causing dwellings to shake, and often disrupting the family’s sleep with deafening noise and bright lights.  Agents have also repeatedly entered the Christiansens’ property on foot and on motorized vehicles, despite numerous posted “No Trespassing” signs.

Federal law currently grants Border Patrol authority to enter onto private property within twenty-five miles of the border “to prevent illegal entry.”  Agents are further empowered to conduct interior enforcement within 100 miles of any national boundary, an area that encompasses most of the U.S. population.  As in Ms. Christiansen’s case, agents routinely ignore the legal limits of their authority in the course of these operations.

Counsel: ACLU of Arizona

Maria Fernanda Rico Andrade v. United States of America, et al.

Maria Fernanda Rico Andrade v. United States of America, et al., No  2:15-cv-00103 (S.D. Texas, filed Feb. 27, 2015)

On November 3, 2011, Gerardo Lozano Rico, an unarmed Mexican national, was driving along a rural road in Texas when his car was pulled over by two United States Border Patrol agents. After being pulled over, several passengers in Mr. Lozano’s car began to flee and the two Border Patrol officers attempted to apprehend them. After one agent smashed the driver’s side window of the car with a baton, Mr. Lozano attempted to drive away from them. In response, the two agents fired approximately 15 shots into the vehicle, killing Mr. Lozano. The two agents who fired the shots claimed that they had fired in self-defense because the vehicle was coming in their direction.

In June 2014, Maria Fernanda Rico Andrade, Mr. Lozano’s mother, filed an administrative complaint against the Border Patrol, which was denied in August 2014. On February 27, 2015, Ms. Rico filed a lawsuit in the District Court of Texas. The complaint alleges an unconstitutionally excessive use of force and a pattern and practice of border patrol agents who, by placing themselves in front of moving vehicles, intentionally expose themselves to additional risk which creates a justification for the use of deadly force. The complaint also alleges the fatal shots fired by the agents were from the side and the rear, occurring after the car had already passed them and making the decision to use force unreasonable.

On October 6, 2015, Defendants filed a motion to dismiss. On March 27, 2017, Defendants filed a motion for summary judgment.

On July 12, 2017, the court granted Defendants’ motion to dismiss on Plaintiff’s FTCA and Bivens claims and struck as moot Defendants’ motion for summary judgment. The court ruled that it lacked subject matter jurisdiction over the FTCA claims and that the statute of limitations on the FTCA and Bivens claims had run.

In August 2017, Plaintiff moved for reconsideration of the decision, which Defendants opposed. On September 18, 2017, the court denied Plaintiff’s motion for reconsideration.

Counsel: Robert C. Hilliard | Singleton Law Firm, APC; Hilliard Munoz Gonzales, LLP

Contact: Robert C. Hilliard | bobh@hmglawfirm.com | (361) 882-1612

Perez, C.Y. v. United States

Perez, C.Y. v. United States, 3:13-cv-01417-WQH (S.D. Cal., Fourth Amended Complaint, filed Sep. 22, 2016); 17-56610 (9th Cir., filed Oct. 19, 2017) 

This case challenges CBP and U.S. Border Patrol’s excessive use of force pursuant to the agency’s “Rocking Policy,” which permits the use of lethal force against persons throwing rocks and other objects in the direction of border patrol agents.  Maria Del Socorro Quintero Perez filed a lawsuit against the United States, DHS, CBP, the Office of Border Patrol, and various Border Patrol supervisors and agents in their individual capacities for the wrongful death of her husband, Jesus Alfredo Yañez Reyes.

On June 21, 2011, Yañez and Jose Ibarra-Murietta crossed the border from Mexico to the United States. Soon thereafter they were apprehended by Border Patrol agents Chad Michael Nelson and Dorian Diaz. While Yañez managed to escape back to the Mexican side of the border through a small hole in a fence, Agent Nelson tackled Murietta to the ground and began to strike him. Yañez climbed a tree that leaned against the Mexican side of the fence near the area where Agent Nelson was beating Murietta.

The events that followed are in dispute. Agents Nelson and Diaz allege that, during Nelson’s struggle with Murietta, Yañez threw one or two rocks in the direction of Agent Nelson, neither of which hit him. They further allege that Yañez threw a nail-studded board that struck Agent Nelson in the head. Murietta, meanwhile, asserts that Yañez never threw anything at Agent Nelson, but instead attempted to stop Nelson’s beating of Murietta by threatening to record the scene on his cellphone.

In both versions of the event, Diaz then instructed Yañez to come down from the fence. Without any further warning or provocation from Yañez, Diaz shot Yañez directly in the head, killing him. Yañez fell out of the tree on the southern side of the fence, and neither agent attempted to render any assistance to him.  Agent Nelson sustained only minor injuries, none of which originated from rocks or a nail-studded board.

Plaintiffs argue that, regardless of which version of events is accurate, the agents unlawfully used excessive lethal force against Yañez. Both agents admitted that neither of them gave Yañez any verbal command or warning to stop throwing objects. Furthermore, Yañez’s alleged conduct did not create a risk of death or serious injury; the rocks were small, they did not hit the agents, and the allegedly thrown nail-studded board did not cause Agent Nelson any injury. There was no evidence that Yañez was about to throw any other objects in the moments before the shooting.

Yañez’s death was not an isolated event. According to a detailed report by an expert witness in the case, Thomas Frazier, Border Patrol agents along the U.S-Mexico border have regularly used lethal force against persons of perceived Hispanic or Mexican nationality. Plaintiffs allege that Border Patrol supervisors and other various agents within the Department of Homeland Security (DHS) acquiesced and tacitly approved of the excessive use of force against persons crossing the border. Between January 2010 and October 2012, border patrol agents responded to an alleged thrown rock with deadly force at least twenty-nine times.

Plaintiffs claim that the government’s Rocking Policy violated international peremptory norms against extrajudicial killings, bilateral treaties, and domestic law, including Fourth and Fifth Amendment and a federal regulation that prohibits the police from using deadly force in the absence of a significant risk of death or serious physical injury Plaintiffs seek compensatory and punitive damages, reasonable attorney fees, and other reasonable relief.

On February 22, 2016, Defendants’ attorneys filed a motion to dismiss and/or to strike portions of the Plaintiffs’ complaint, seeking to strike all causes of action alleged by the Plaintiffs other than their Fourth Amendment excessive force claim against Agents Nelson and Diaz and Chief of the Border Patrol Michael J. Fisher. In late March 2016, the judge granted Defendants’ motion in part and denied it in part.

Following the District Court’s decision, on September 22, 2016, Plaintiffs filed a fourth amended complaint. On October 20, 2016, Defendants again moved to dismiss the complaint.

On March 3, 2017, the Court granted in part Defendants’ Motion to Dismiss the Fifth Amendment Claims. In addition, the Court dismissed the Plaintiff’s FTCA claims. On April 1, 2017, the remaining two individual defendants filed a motion for summary judgment with respect to the surviving Fourth Amendment  claims. On September 21, 2017, the district court entered an order granting the defendants’ motion, declining to find a Bivens remedy for Plaintiffs’ alleged Fourth Amendment violation and also concluding that qualified immunity barred suit. Plaintiffs have filed an appeal with the Ninth Circuit.

The parties completed appeal briefing in May 2018.

Counsel: Singleton Law Firm, APC; Hilliard Munoz Gonzales, LLP; Hilliard & Shadowen, LLP

Contact: Brody McBride | brody@geraldsingleton.com  | (760) 697 1330

Gallegos v. United States of America, et al

Gallegos v. United States of America, et al., No. 5:14-cv-00136 (S.D. Tex., Amended Complaint filed June 23, 2015)

This case challenges the actions of two U.S. Border Patrol agents, who shot dead an unarmed man on the Mexican side of the U.S.-Mexico border in 2012. Nora Lam Gallegos, on behalf of herself and her minor children, brought a lawsuit against the United States and various Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) agents in their individual capacities for the wrongful death of her husband, Guillermo Arevalo Pedraz (“Arevalo”).

On September 3, 2012, Arevalo and his family were celebrating his birthday in a park in Mexico bordering the Rio Grande when a U.S. Border Patrol airboat pulled beside a man swimming in the river. The two agents, Matthew Lambrecht and Christopher Boatwright, were responding to a report that three people had swum over to the Texas border. Witnesses allege that the man in the river was swimming back to Mexico in order to evade capture. One of the border agents on the boat attempted to catch the swimmer using a long boat hook. A crowd gathered on the Mexican shore as onlookers shouted at the two agents to leave the man alone. Arevalo ran toward the crowd. The agents in the airboat later reported that about 20 people on the Mexican shore began throwing rocks at the boat, but Mexican witnesses vehemently denied this. One of the agents on the boat aimed and fired at least five shots at the crowd, which included children. Two bullets hit Arevalo. He was rushed to a hospital but was pronounced dead after an unsuccessful attempt to revive him.

A complaint filed by Plaintiffs in the U.S. District Court for the Southern District of Texas alleges that the agents unlawfully used excessive force. Multiple eyewitnesses directly contradict Border Patrol’s assertion that Arevalo was throwing rocks before he was killed. The plaintiffs assert that, even assuming arguendo that Arevalo was throwing rocks, the agents’ response was grossly excessive; a cellphone video of the incident demonstrates that when the agents opened fire, they were beyond the distance at which any thrown rock could pose a risk of death or serious bodily injury, and in any case, the agents could have shielded themselves by moving the boat further from the Mexican shore.

The Plaintiffs allege that the agents were acting pursuant to the Border Patrol’s “Rocking Policy,” which permits the use of lethal force against persons throwing rocks and other objects in the direction of border patrol agents. The Plaintiffs also assert that, despite condemnation from the Mexican government and international human rights organizations, high-ranking DHS and CBP officials have acquiesced to the Rocking Policy.

Plaintiffs allege that the Rocking Policy violates various international treaties as well as the sovereignty of Mexico by permitting Border Patrol agents to fire their weapons into Mexico’s sovereign territory. They also claim that the Rocking Policy violates the Fourth and Fifth Amendments. Plaintiffs seek compensatory and punitive damages, reasonable attorney fees, and other reasonable relief.

As of February 2018, the case was stayed pending the Fifth Circuit’s decision in Hernandez, et al. v. Mesa, following that case’s remand from the Supreme Court. On May 29, 2018, the parties filed a joint advisory on the Fifth Circuit’s decision in Hernandez v. Mesa, 885 F.3d 811 (5th Cir. 2018). As of August 2018, the case remains pending.

Counsel: Robert C. Hilliard | Singleton Law Firm, APC; Hilliard Munoz Gonzales, LLP

Contact: Robert C. Hilliard | bobh@hmglawfirm.com | (361) 882-1612

Salem v. USA, et al.

Salem v. USA, et al., No. 5:15-cv-02091-JGB-SP (C.D. Cal., filed Oct. 9, 2015)

Mr. Salem brought this damages case against the United States, the Los Angeles Fire Department, and unknown CBP officers. Mr. Salem is a U.S. citizen who is also a citizen of Egypt. An accomplished playwright, 75 year old Salem was at the Los Angeles airport to begin his annual trip to Egypt, where he taught a literature class as an adjunct professor at the University of Cairo. He passed through security without incident, handed over his boarding pass and entered the passenger bridge to board his plane. At that point he was pulled over by an officer he believes was with CBP, who asked to see his passport. When he asked why he had been singled out, he was immediately surrounded by three other officers who forcibly grabbed both of his arms. They searched his carry-on luggage and, after finding nothing objectionable, forcibly escorted him to an interrogation room. There he was questioned for several hours, during which time the officers forced his arm behind his back, breaking it in the process. After about 4 hours of questioning, he was released without being charged. He was in great pain, and a bone in his arm was visibly displaced.

Mr. Salem’s suit includes Bivens claims under the Fourth Amendment (unreasonable search and seizure and use of excessive force) and the Fifth Amendment (equal protection). It also includes FTCA claims for assault, battery, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence.

Defendant United States of America filed an answer to the amended complaint on January 18, 2017. Defendant City of Los Angeles filed an answer to the amended complaint on February 9, 2017. Individual Defendants also filed answers to the amended complaint on February 2, 2017 and March 07, 2017. The parties have agreed to stipulations for the Plaintiff’s inspection of the premises where Mr. Salem’s detention took place, and the Court accordingly entered a protective order regarding the Plaintiff’s entry and inspection of the premises on March 15, 2017.

On April 21, 2017, the individual federal Defendants filed a motion to dismiss, which Plaintiff opposed. On June 13, 2017, the district court denied Defendants’ motion to dismiss. The parties entered into a settlement agreement on September 12, 2017, in which Defendant USA agreed to pay Plaintiff $45,000 under the FTCA in exchange for dismissing all other claims.

Counsel: Counsel on American-Islamic Relations, CA l Law Office of Shafiel A. Karim

Contact: Marwa Rifahie (Civil Rights Managing Attorney) | mrifahie@cair.com

Rodriguez v. Swartz

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. 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 will re-try Swartz on the lesser charge.  That trial is currently scheduled to begin in Tucson on October 23, 2018.

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.

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