FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ARACELI RODRIGUEZ, individually No. 15-16410 and as the surviving mother and personal representative of J.A., D.C. No. Plaintiff-Appellee, 4:14-cv-02251- RCC v. LONNIE SWARTZ, Agent of the U.S. OPINION Border Patrol, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Raner C. Collins, Chief Judge, Presiding Argued and Submitted October 21, 2016 Submission Withdrawn October 21, 2016* Resubmitted July 31, 2018 San Francisco, California Filed August 7, 2018 * We withdrew this case from submission pending the Supreme Court’s decision in Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (per curiam), and supplemental briefing on the effect of that decision. 2 RODRIGUEZ V. SWARTZ Before: Andrew J. Kleinfeld and Milan D. Smith, Jr., Circuit Judges, and Edward R. Korman,** District Judge. Opinion by Judge Kleinfeld; Dissent by Judge Milan D. Smith, Jr. SUMMARY*** Civil Rights The panel affirmed the district court’s order denying qualified immunity to a United States Border Patrol agent who, while standing on American soil, shot and killed J.A., a teenage Mexican citizen who was walking down a street in Mexico. The panel held that assuming, as it was required to do, that the facts as pleaded in the First Amended Complaint were true, the agent was not entitled to qualified immunity. The panel held 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 panel further held that given the circumstances, that J.A. was not suspected of any crime, was not fleeing or resisting arrest and did not pose a threat to anyone, the use of force was unreasonable under the ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. RODRIGUEZ V. SWARTZ 3 Fourth Amendment. The panel concluded that no reasonable officer could have thought that he could shoot J.A. dead if, as pleaded, J.A. was innocently walking down a street in Mexico. The panel held that pursuant to the Supreme Court’s decision in Hernandez v. Mesa, 137 S. Ct. 137 2003 (2017), it had jurisdiction, on interlocutory appeal, to decide whether J.A.’s mother had a cause of action for damages against the agent pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). The panel held that despite its reluctance to extend Bivens, it would do so here because no other adequate remedy was available, there was no reason to infer that Congress deliberately chose to withhold a remedy, and the asserted special factors either did not apply or counseled in favor of extending Bivens. Dissenting, Judge M. Smith stated that the panel lacked the authority to extend Bivens to ...
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