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

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David says:

Re: Re:

U.S. courts can only rule about accountability for U.S. murderers in U.S. jurisdiction. Mexico can still put out a warrant for the border agent and make an extradition request.

So no, there is no precedent about the same situation in reverse since the same situation in reverse concerns different courts.

That doesn’t change that whatever precedent we have here is pretty much terrible.

This comment has been deemed insightful by the community.
Jess says:

Re: Re: Jurisdiction

You are quite correct — jurisdiction is a fundamental principle in U.S. and international law.
Mexican courts have no authority in the U.S. and vice versa.
9th Circuit ruling was obviously correct..

However, U.S. Federal agents have routinely killed foreign citizens outside U.S. legal jurisdiction in many places like Afghanistan, Iraq, Syria, Libya, Somalia, Vietnam, Korea, etc without any interference from U.S. courts which did have wide jurisdiction over Federal officials within the U.S.
Such foreign military actions are grossly illegal under the U.S. Constitution unless Congress issues a formal Declaration of War.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: Re:

That’s my first concern as well, yes, if mexican citizens know that US border agents can murder people without penalty and the US court system will just pat the killers on the back then they’re much more likely to take matters into their own hands and that’s not a good outcome for anyone.

These individual killers may have escaped justice but the courts have made the jobs of every border agent much more dangerous by these rulings, which is probably not what they were aiming for.

This comment has been deemed insightful by the community.
Uriel-238 (profile) says:

Re: Re: This is a good way to empower a mob

This is what I was thinking. Aren’t there already huge organized drug syndicates in Mexico? Reprisal for murders by US officials seems like a good way to get in the favor of the public, especially if mobsters can retaliate in a way the Mexican government cannot.

For a nation that is terrified of terrorism, the US certainly seems to engage in behavior that encourages more of it.

Anonymous Coward says:

Re: Re: Re:

You’re assuming that the agencies care. If a border agent massacres some Mexicans, the agency refers to that as doing their job. If a border agent or two gets massacred instead, the agency simply cites it as an excuse to deploy harsher measures and responses, while demanding sympathy for the trigger-happy agents. The agency treats it as a win-win.

Rekrul says:

Re: Re:

Wouldn’t this also mean you can shoot from Mexico to the US without penalty as well. Seems like a dangerous precedent.

No, that’s entirely different! We’re allowed to kill others, but others aren’t allowed to kill us. You know damn well that if anyone in Mexico shot and killed an agent from across the border, the full weight of the U.S. government would come down on Mexico, demanding that they extradite that person to stand trial for first degree murder.

Lostinlodos (profile) says:

Re: Re: Re:

This happens all the time

And often enough someone is hit. Especially along the Texas border.

Maybe the agent should man up and cross the border to face trial. Maybe not. The reality is he’d face man slaughter in the US and murder in Mexico.
Again, just because the clip shows no rock throwing doesn’t show what happened before the clip turned on. And doesn’t necessarily exclude the agent being hit off camera.

Unlike others though I first and foremost respect the facts of law, followed by innocent until proven guilty (or a factual evidence is undeniable).

Rekrul says:

Re: Re: Re: Re:

This happens all the time

Yes, but how many times is a border patrol agent actually killed?

Again, just because the clip shows no rock throwing doesn’t show what happened before the clip turned on. And doesn’t necessarily exclude the agent being hit off camera.

Even if there was rock throwing, what’s the range of a thrown rock? Is it far enough that the agent couldn’t just move back? Or behind a building?

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Tanner Andrews (profile) says:

Re: Re: Re:

So putting ten rounds in a 15-year-old who is throwing rocks at you is fine?

Well, yes, that is what the US 9th Circuit is saying. It comes with some empty language deploring such things, but the actual decision is that this is fine. Also, it does not matter if the “throwing rocks” part is a post-hoc fabrication.

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Rocky says:

Re: Re: Re:2 Re:

That is absolutely not what the court is saying.

It’s exactly what the court said. They basically said that Mesa had QI and that Hernandez had some constitutional rights but it didn’t really matter, so shooting someone is just fine within the circumstances of the case.

The alleged crime happened in Mexico. There is no redress from the us court system.

No, it happened in the US which is why the case was finally dismissed because the court waffled on the Bivens Action which gave Mesa QI.

If they want to bring charges they must do so in Mexico via extradition.

Oh, they tried – but the DOJ said nope. If Mesa steps foot in Mexico he will be charged with murder.

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Lostinlodos (profile) says:

Re: Re: Re:3 Re:

Oh, they tried – but the DOJ said nope. If Mesa steps foot in Mexico he will be charged with murder.

Yep. That’s how the law works.
The victim is in Mexico. The crime was in Mexico.
The US is under no obligation to extradite anyone.

The crime is committed when the bullet penetrated the skin. That happened in Mexico.
From a legal standpoint all that happened in the US was a man firing his gun towards the border. Once the bullet leaves the US border it’s no longer under US jurisdiction.

That One Guy (profile) says:

Re: Re: Re:4 Re:

From a legal standpoint all that happened in the US was a man firing his gun towards the border.

… at someone on the other side of it.

Yeah not just no but hell no. Murder does not change into not murder just because the murder weapon crosses a border in the process. He aimed at someone with the intent to kill them and he did, the fact that the other person was on the other side of the border when he pulled the trigger does not change that and to argue otherwise is to basically treat borders as magical ‘crimes cannot pass’ boundaries where so long as an atrocity starts on one side and ends in the other no crime has been committed.

The court gave the killers a pass because judges tend to turn into gutless cowards any time someone with a badge enters the room on the defendant’s side, it has nothing to do with their hands being tied or bullets magically turning into schrodinger’s round where it both was and was not fired by a person depending on geographic location any time a border is involved.

Lostinlodos (profile) says:

Re: Re: Re:5 Re:

basically treat borders as magical ‘crimes cannot pass’ boundaries where so long as an atrocity starts on one side and ends in the other no crime has been committed

Not all all. They’re magical jurisdictional boundaries. The alleged crime was in Mexico. The victim was in Mexico. The law
Dictates mexico as the country of pursuit.

The family must file in mexico. The us has no mandate to send anyone anywhere.
If the do they do. If they don’t they don’t.

You may not like borders and Sovereignty but that’s the way most of the world conducts itself. Legal ability stops at the border.
That’s why Mexican cartel bullets striking Americans go unpunished as well.

Keep in mind mexico could try and convict him in absence of physical presence. Then arrest him if he ever crossed the border.
And yes, they could arrest him if he crossed the border and then try him. But the former makes more sense.

Again, opinion doesn’t matter. The alleged crime was on the other side of the border.

That One Guy (profile) says:

Re: Re: Re:6 Re:

For fuck’s sake… the killer was in america, the gun he used was in america, the bullets he fired originated in america, the fact that the person he murdered was across the border does not mean that he didn’t murder someone. By the argument you’re proposing if the grieving family decided to set up a bloody sniper and start going after ICE agents then they would not be committing murder because they were just ‘aiming across the border and shooting’ and it would just be a complete coincidence that those bullets landed in warm bodies on the other side. Moreover if the mexican courts decided they didn’t want to play ball(perhaps to stick it to the US courts for giving two killers a pass) the DOJ or ICE would have no grounds to even ask for extradition because no crimes would have occurred, just a person shooting in the direction of the border.

Building upon what I noted elsewhere the court’s and now your arguments are how you get vigilantes, and sane people do not want those.

Lostinlodos (profile) says:

Re: Re: Re:7 Re:

the bullets he fired originated in america

Well, actually they probably originated in Russia but that’s not the point.

does not mean that he didn’t murder someone

I’m it arguing that the alleged crime didn’t happen. Just that the Mexico is the country of jurisdiction.

grieving family decided to set up a bloody sniper and start going after ICE agents then they would not be committing murder because they were just ‘aiming across the border and shooting’ and it would just be a complete coincidence that those bullets landed in warm bodies on the other side.

In such a case the crime happens in the US. The government must seek extradition. Mexico may or may not comply. Since no crim
Happened on the Mexican side.

Lostinlodos (profile) says:

Re: Re: Re:7 Re:

Actually, no I don’t.
If there is a matching crime in both countries I support extradition. In this case the US should turn over the agents to Mexican authorities.

If there is NOT a matching crime in both countries then they shouldnnot comply with extradition. KimDotCom has not violated NZ law, thus should not be extradited.

A) the responsibility of prosecuting is in the country where the crime happened.
B) no country should be allowed to force their laws onto another.
C) the crime charges must match the crime committed.

In this case if the person was throwing rocks across the border we have an assailant. Thus the proper charge(s) would be excessive force and involuntary man slaughter.
On the assumption that the DOS would extradite on those charges (which is unlikely but not the point), they are correct because it’s unlikely murder would stick through appeals even if the entirety of the events was within the United States.

Don’t misinterpret my defence of the law as defence of the act.
He killed a person and should be held accountable. But that should be within the confines of the legal process.

ECA (profile) says:

Re: Re:

I hope you are religious. At least one that preaches peace and love.
Because Karma Just might come up and bite you.

You: hello?
God: yes?
You: I died, and have come to heaven
God: let me see. Wow? You shot a kid at the border for running up and touching the fence, and another because he threw rocks at a Fence you were standing behind? You fired how many times? Hit them at, WOW, thats a good shot.
God: Nope not here. see you later.

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That One Guy (profile) says:

This is how you create vigilantes, you don't want those

Strange that, I thought murder was a crime no matter where you or your victim were standing, I had no idea that murder ceases to be a problem so long as it crosses a border.

Once again it is absolutely revolting how much courts will bend over backwards to avoid handing out any sort of punishment for law enforcement or other similar agencies, willing to overlook outright perjury and murder rather than admit that maybe the person with a badge might have done something wrong.

crinisen (profile) says:

I'm curious, but what about Mexico itself?

I know there are at least some cases where a foreign power can sue in US courts. Is there an (at least somewhat reasonable) cause of action that Mexico could pursue against the officers/agency? I am not that optimistic but somehow I think that would be more likely than Congress doing anything to allow foreign citizens to sue federal officers for wrongful if they refuse to do so for US citizens 🙁

Anonymous Coward says:

Looks like the US messed up.

Looking at the photo and where the surveyor indicated where the border is, Mexico would be well within its rights to tear down a nice section of the fence. After all, that fence is on Mexican territory.

Upon thinking about it, any mexicans could tear down that section of fence. It’s not like the Mexican government will object, and if the US border patrol objects, they can be simply told that the US government has publicly stated that the fence is on Mexican territory and as such, its destruction is not prohibited by US law.

Anonymous Coward says:

Tim Cushings isn't a journalist

Opening derogitory and condecending opening statments to your one page, so called articles, doesn’t entitle you to call yourself a journalist. Tim Cushings hates law enforcement that are at the border preventing illegals coming into our country. Lethal force is necessary when you trespass on someones property, therefore, I wholeheartedly believe lethal force should be used when illegally crossing into our country, instead of catching/releasing illegals, who flea into the country, only to cause problems, murder, steal property and bring it to Mexico, trespass etc.

I want America to be safe and protected from illegals and there should not be a safe haven within the country for illegals at all.

Uriel-238 (profile) says:

Re: "I want America to be safe and protected from illegals"

Careful there. Once they criminalize the migrants, the Muslims, the blacks, the gays and the crazies it’s a short step to criminalize you too.

Besides which, migrants have a lower crime rate and better production rate than the general population.

By being afraid of the illegals, you’re forgetting it’s the state that will come for you. Oh, you’re lower on the list than some, and that may be comfort…

…but unless you are a billionaire or know one on a first name basis, you are absolutely on the list.

Anonymous Coward says:

It kind of sounds like the SCOTUS ruling is being taken to mean "crimes where the victim (ends up) outside the US boarder are outside US jurisdiction"

Which means things like rape, so long as the victim remains on the other side of the boarder, is not pursue-able. Theft is probably the same (but I think we already have precedent saying boarder related thefts are SCOTUS approved). I can’t think of any other crimes that could be done this way (but to be honest: spending time thinking of them doesn’t seem like a particularly worth while endeavor).

Rocky says:

Re: Re:

If so, this whole article might be a bit of an overreaction.

Why? Aren’t we supposed to hold people responsible for their actions, especially so for those who uphold our laws?

That relatives to a gun-victim actually need to sue in an effort to get some type of justice is a horrible situation, a situation that once yet again shows how broken the US justice system is when it comes to making sure that those charged with upholding the law is also hold to the same law.

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