Araceli Rodriguez v. Lonnie Swartz, Agent of the U.S. Boarder Patrol

A U.S. Border Patrol agent standing on American soil

shot and killed a teenage Mexican citizen who was walking

down a street in Mexico. We address whether that agent has



6 RODRIGUEZ V. SWARTZ



qualified immunity and whether he can be sued for violating

the Fourth Amendment. Based on the facts alleged in the

complaint, we hold that the agent violated a clearly

established constitutional right and is thus not immune from

suit. We also hold that the mother of the boy who was killed

has a cause of action against the agent for money damages.



FACTS



We take the facts as they are pleaded in the First

Amended Complaint. These facts have not been proven, and

they may not be true. But we must assume that they are true

for the sake of determining whether the case may proceed.1



Shortly before midnight on October 10, 2012, defendant

Lonnie Swartz was on duty as a U.S. Border Patrol agent on

the American side of our border with Mexico. J.A., a sixteenyear-

old boy, was peacefully walking down the Calle

Internacional, a street in Nogales, Mexico, that runs parallel

to the border. Without warning or provocation, Swartz shot

J.A. dead. Swartz fired somewhere between 14 and

30 bullets across the border at J.A., and he hit the boy, mostly

in the back, with about 10 bullets. J.A. was not committing

a crime. He did not throw rocks or engage in any violence or

threatening behavior against anyone or anything. And he did

not otherwise pose a threat to Swartz or anyone else. He was

just walking down a street in Mexico.



The Calle Internacional, where J.A. was walking, is a

main thoroughfare lined with commercial and residential

buildings. The American side of the border is on high

ground, atop a cliff or rock wall that rises from the level of



1 See Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005).



RODRIGUEZ V. SWARTZ 7



the Calle Internacional. The ground on the American side is

around 25 feet higher than the road, and a border fence rises

another 20 or 25 feet above that. (See the Appendix for a

photograph.) The fence is made of steel beams, each about

6½ inches in diameter, set about 3½ inches apart. Nogales,

Mexico, and Nogales, Arizona, are in some respects one town

divided by the border fence. Families live on both sides of

the border, and people go from one side to the other to visit

and shop. J.A.’s grandparents live in Arizona. They were

lawful permanent residents at the time of the shooting, and

they are now U.S. citizens. J.A.’s grandmother often stayed

with him in Mexico when his mother was away at work. J.A.

was a Mexican citizen who had never been to the United

States, but Swartz did not know that when he shot J.A.

J.A.’s mother, Araceli Rodriguez, acting both individually

and as a personal representative of J.A.’s estate, sued Lonnie

Swartz for money damages. She has two claims: one for a

violation of her son’s Fourth Amendment rights, and another

for a violation of his Fifth Amendment rights. Her complaint

alleges no facts that could allow anyone to characterize the

shooting as being negligent or justifiable. What is pleaded is

simple and straightforward murder.



To summarize the facts alleged in the complaint: Swartz

was an on-duty U.S. Border Patrol agent stationed on the

American side of the border fence. J.A. was a Mexican

citizen walking down a street in Mexico. Swartz fired his

pistol through the border fence into Mexico. He intentionally

killed J.A. without any justification. Swartz acted entirely

from within the United States, but J.A. was in Mexico when

Swartz’s bullets struck and killed him. Swartz did not know

J.A.’s citizenship or whether he had substantial connections



8 RODRIGUEZ V. SWARTZ



to the United States, so for all Swartz knew, J.A. could have

been an American citizen.



Swartz moved to dismiss the complaint based on qualified

immunity. He conceded that Rodriguez had a Bivens cause

of action under the Fourth Amendment. In a carefully

reasoned opinion, the district court held that Swartz was not

entitled to qualified immunity on the Fourth Amendment

claim. Because it treated the shooting as a “seizure” under

the Fourth Amendment, the court dismissed the Fifth

Amendment claim.2



Swartz filed this interlocutory appeal to challenge the

district court’s denial of qualified immunity. The United

States filed an amicus brief that presented an argument that

had not been made in district court: that Rodriguez lacks a

Bivens cause of action for a Fourth Amendment violation.

Though Swartz had not raised that argument in his opening

brief on appeal, he adopted it in his reply brief.

We affirm the district court’s decision to let Rodriguez’s

Fourth Amendment claim proceed.



ANALYSIS



I. QUALIFIED IMMUNITY



Qualified immunity protects public officials “from

liability for civil damages insofar as their conduct does not

violate clearly established . . . constitutional rights of which



2 Rodriguez v. Swartz, 111 F. Supp. 3d 1025, 1033–41 (D. Ariz.

2015).



RODRIGUEZ V. SWARTZ 9



a reasonable person would have known.”3 “To determine

whether an officer is entitled to qualified immunity, a court

must evaluate two independent questions: (1) whether the

officer’s conduct violated a constitutional right, and

(2) whether that right was clearly established at the time of

the incident.”4 A constitutional right is “clearly established”

if “every reasonable official would have understood that what

he is doing violates that right.”5





Based on the facts alleged in the complaint, Swartz

violated the Fourth Amendment. It is inconceivable that any

reasonable officer could have thought that he or she could kill

J.A. for no reason. Thus, Swartz lacks qualified immunity.



A. The Fourth Amendment forbids using

unreasonable force to “seize” a person.



The Fourth Amendment prohibits law enforcement

officers from using “objectively unreasonable” force to

“seize” a person.6 In Harris v. Roderick, a person shot by a

federal agent brought a Bivens claim for a Fourth Amendment

violation.7 We held that the officer lacked qualified



3 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

4 Castro v. Cty. of L.A., 833 F.3d 1060, 1066 (9th Cir. 2016) (en

banc).

5 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation, brackets,

and internal quotation marks omitted).

6 Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).

7 126 F.3d 1189, 1194 (9th Cir. 1997).



10 RODRIGUEZ V. SWARTZ

immunity.8 Following the Supreme Court’s decision in

Graham v. Connor, we wrote that “the reasonableness of a

particular use of force must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.”9 “Ordinarily,” we continued, “our

inquiry is . . . whether the totality of circumstances, (taking

into consideration the facts and circumstances of the

particular case including the severity of the crime at issue;

whether the suspect poses an immediate threat to the safety of

the officers or others; and whether he is actively resisting

arrest or attempting to evade by flight) justified the particular

type of seizure.”10 Then, quoting the Supreme Court’s

decision in Tennessee v. Garner, we wrote that even when a

felony suspect tries to escape, “where the suspect poses no

immediate threat to the officer and no threat to others, the

harm from failing to apprehend him does not justify the use

of deadly force to do so.”11



These principles are clearly established.12 As we held in

Harris, every reasonable law enforcement officer should

know that “officers may not shoot to kill unless, at a

minimum, the suspect presents an immediate threat to the



8 Id. at 1205.



9 Id. at 1201 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989))

(internal quotation marks and brackets omitted).

10 Id. (quoting Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th

Cir. 1991)) (internal quotation marks omitted).



11 Id. (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985))

(capitalization altered).



12 See, e.g., Adams v. Speers, 473 F.3d 989, 993–94 (9th Cir. 2007).



RODRIGUEZ V. SWARTZ 11



officer or others, or is fleeing and his escape will result in a

serious threat of injury to persons.”13 And “whenever

practicable, a warning must be given before deadly force is

employed.”14



B. The Fourth Amendment applies here.



Even though we must assume that Swartz shot and killed

J.A. for no reason, Swartz nevertheless argues that he did not

violate the Constitution. He relies on United States v.

Verdugo-Urquidez, which held that the Fourth Amendment

did not apply to the search and seizure of a non-citizen’s

property that was located abroad.15 J.A. was a Mexican

citizen who was shot, and therefore “seized,” in Mexico.16

We must therefore determine whether the Fourth Amendment

applies in this case.



Boumediene v. Bush establishes that to determine whether

the Constitution applies here, we must examine J.A.’s

citizenship and status, the location where the shooting

occurred, and any practical concerns that arise.17 Neither

13 Harris, 126 F.3d at 1201 (citing Curnow, 952 F.2d at 325; Ting v.

United States, 927 F.2d 1504, 1511 (9th Cir. 1991)).



14 Id. (citing Garner, 471 U.S. at 11–12).

15 494 U.S. 259, 274–75 (1990).

16 See Brower v. Cty. of Inyo, 489 U.S. 593, 597 (1989).

17 553 U.S. 723, 766 (2008). Though Boumediene limited its holding

to the Suspension Clause, Hamad v. Gates, 732 F.3d 990, 1005 (9th Cir.

2013), its reasoning still applies here, see Ibrahim v. Dep’t of Homeland

Sec., 669 F.3d 983, 997 (9th Cir. 2012) (considering Boumediene in a

Fifth Amendment case).



12 RODRIGUEZ V. SWARTZ



citizenship nor voluntary submission to American law is a

prerequisite for constitutional rights.18 Instead, citizenship is

just one of several non-dispositive factors to consider.19

In Boumediene, the Supreme Court held that enemy

combatants detained at the U.S. Naval Station at Guantanamo

Bay, Cuba, were entitled to the writ of habeas corpus.20

Geography was an important factor in Boumediene.

Guantanamo Bay is in Cuba, and Cuba has sovereignty over

it, but it is the United States that has complete practical

control over Guantanamo.21 The geography is different in our

case. Although Swartz was in the United States when he shot

at J.A., Mexico has both sovereignty and practical control

over the street where J.A. was hit.22 Nevertheless, we

conclude that J.A. had a Fourth Amendment right to be free

from the unreasonable use of such deadly force.

United States v. Verdugo-Urquidez held that the Fourth

Amendment did not apply to the search and seizure of a



18 See Boumediene, 553 U.S. at 766.

19 See id. at 764 (describing a “common thread” in Supreme Court

precedent: “the idea that questions of extraterritoriality turn on objective

factors and practical concerns, not formalism”).

20 Id. at 771.

21 Id. at 753–55, 769–70.

22 Rodriguez alleges that Border Patrol agents “exert control over the

immediate area on the Mexican side [of the border fence], including where

J.A. was shot.” Accordingly, she argues that the Fourth Amendment must

apply here. But we need not address that argument; the Constitution

applies for other reasons.



RODRIGUEZ V. SWARTZ 13

Mexican citizen’s property in Mexico.23 There, Mexican

authorities arrested suspected cartel leader Rene Verdugo-

Urquidez in Mexico, brought him to the United States, and

handed him over to American law enforcement so that he

could be tried in the United States. Later, American and

Mexican agents searched Verdugo-Urquidez’s house in

Mexico without a warrant. During the search, agents seized

evidence showing that Verdugo-Urquidez was a drug

smuggler. Verdugo-Urquidez challenged the search and

seizure, but the Supreme Court held that the U.S. Constitution

did not apply.24



According to the Verdugo-Urquidez majority opinion, the

text of our Fourth Amendment “suggests that ‘the people’

protected by the Fourth Amendment . . . refers to a class of

persons who are part of a national community or who have

otherwise developed sufficient connection with this country

to be considered part of that community.”25 Because

Verdugo-Urquidez was a Mexican citizen with no voluntary

connection to the United States, he was not among “the

people.”26 But the Fourth Amendment’s text was “by no

means conclusive,”27 and the majority also relied on history,



23 494 U.S. 259, 274–75 (1990).

24 Id. at 262–63, 275.

25 Id. at 265 (quoting U.S. CONST. amend. IV); see U.S. CONST.

amend. IV (“The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not

be violated . . . .”).

26 See Verdugo-Urquidez, 494 U.S. at 265, 271–72.

27 Id. at 265.



14 RODRIGUEZ V. SWARTZ



precedents, and practicalities in holding that the Fourth

Amendment did not apply to the search and seizure of a

nonresident alien’s property located abroad.28 Among the

Court’s practical concerns were that a warrant from an

American magistrate “would be a dead letter outside the

United States” and that requiring warrants for searches abroad

would plunge the executive branch “into a sea of

uncertainty.”29 Justice Kennedy, concurring, said that he

could not “place any weight on the reference to ‘the people’

in the Fourth Amendment.”30 But he agreed with the majority

that it would be “impractical and anomalous” to apply the

Fourth Amendment warrant requirement to aliens abroad.31

But this case is not like Verdugo-Urquidez for several

reasons. For one, Verdugo-Urquidez addressed only “the

search and seizure by United States agents of property that

[was] owned by a nonresident alien and located in a foreign

country.”32 That type of search and seizure implicates

Mexican sovereignty because Mexico is entitled to regulate

conduct in its territory. But unlike the American agents in

Verdugo-Urquidez, who acted on Mexican soil, Swartz acted

on American soil. Just as Mexican law controls what people



28 See id. at 266–75.

29 Id. at 274.

30 Id. at 276 (Kennedy, J., concurring).

31 Id. at 278.

32 Id. at 261 (majority opinion); see id. at 274–75.



RODRIGUEZ V. SWARTZ 15



do there, American law controls what people do here.33

Verdugo-Urquidez simply did not address the conduct of

American agents on American soil. Also, the agents in

Verdugo-Urquidez knew that they were searching a Mexican

citizen’s property in Mexico, but Swartz could not have

known whether J.A. was an American citizen or not.34

The practical concerns in Verdugo-Urquidez about

regulating conduct on Mexican soil also do not apply here.

There are many reasons not to extend the Fourth Amendment

willy-nilly to actions abroad, as Verdugo-Urquidez explains.35

But those reasons do not apply to Swartz. He acted on

American soil subject to American law.



We recognize that on similar facts, the Fifth Circuit

reached a contrary conclusion.36 But its reasoning was about

the Fourth Amendment generally, including warrantless

searches of those crossing the border and electronic

surveillance of the border itself. The concerns in Verdugo-

Urquidez were also specific to warrants and overseas

operations.37 But this case is not about searches and seizures



33 See generally 1 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS

LAW OF THE UNITED STATES §§ 402–03, at 237–54 (Am. Law Inst. 1987).

34 Cf. Boumediene v. Bush, 553 U.S. 723, 766–67 (2008) (treating the

detainees’ alleged innocence as a reason to apply the Constitution).

35 See 494 U.S. at 273–74; id. at 278 (Kennedy, J., concurring).

36 See Hernandez v. United States, 757 F.3d 249, 266–67 (5th Cir.

2014), vacated in part on reh’g en banc, 785 F.3d 117 (5th Cir. 2015).

37 See 494 U.S. at 273–74; see also id. at 278 (Kennedy, J.,

concurring).



16 RODRIGUEZ V. SWARTZ



broadly speaking. Neither is it about warrants or overseas

operations. It is about the unreasonable use of deadly force

by a federal agent on American soil. Under those limited

circumstances, there are no practical obstacles to extending

the Fourth Amendment. Applying the Constitution in this

case would simply say that American officers must not shoot

innocent, non-threatening people for no reason. Enforcing

that rule would not unduly restrict what the United States

could do either here or abroad. So under the particular

circumstances of this case, J.A. had a Fourth Amendment

right to be free from the objectively unreasonable use of

deadly force by an American agent acting on American soil,

even though Swartz’s bullets hit him in Mexico. Verdugo-

Urquidez does not require a different conclusion.

And according to the complaint, Swartz used objectively

unreasonable force. To determine whether a particular use of

force is objectively unreasonable, we balance the “nature and

quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmental

interests at stake.”38 “The intrusiveness of a seizure by means

of deadly force is unmatched,”39 so deadly force is

unreasonable unless there are strong countervailing

government interests. But the government had no interest

whatsoever in shooting J.A. He was not suspected of any

crime. He was not fleeing or resisting arrest. And he did not

pose a threat of harm to anyone at all. The use of deadly

force was therefore unreasonable under the Fourth

Amendment.



38 Graham v. Connor, 490 U.S. 386, 396 (1989) (citation and internal

quotation marks omitted).

39 Tennessee v. Garner, 471 U.S. 1, 9 (1985).



RODRIGUEZ V. SWARTZ 17



C. It was clearly established that Swartz could not

shoot J.A.



Even though Rodriguez has more than sufficiently alleged

that Swartz violated the Constitution, that does not

automatically mean that Swartz lacks qualified immunity.

Instead, Swartz lacks immunity only if J.A.’s Fourth

Amendment right was “clearly established” when he was shot

and killed.40



A right is “clearly established” when it is “sufficiently

clear that every reasonable official would have understood

that what he is doing violates that right.”41 Although

precedent is certainly relevant to determining what a

reasonable officer would know, “it is not necessary . . . that

the very action in question has previously been held

unlawful.”42 Instead, an officer loses qualified immunity,

even in novel situations, if he or she commits a “clear”

constitutional violation.43 Swartz argues that when he shot

40 Some argue that the “clearly established” prong of the analysis

lacks a solid legal foundation. See generally William Baude, Is Qualified

Immunity Unlawful?, 106 CALIF. L. REV. 45 (2018); see also Ziglar v.

Abbasi, 137 S. Ct. 1843, 1872 (2017) (Thomas, J., concurring in part and

concurring in the judgment) (“In an appropriate case, we should

reconsider our qualified immunity jurisprudence.”). But we must apply

it here.



41 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citation, brackets,

and internal quotation marks omitted).

42 Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017) (capitalization

altered, citation and internal quotation marks omitted).

43 See Hope v. Pelzer, 536 U.S. 730, 738–39, 741 (2002).



18 RODRIGUEZ V. SWARTZ



J.A., it was not clearly established that he could not shoot

someone on the other side of the border. We cannot agree.

“The qualified immunity analysis . . . is limited to the

facts that were knowable to the defendant officers at the time

they engaged in the conduct in question. Facts an officer

learns after the incident ends—whether those facts would

support granting immunity or denying it—are not relevant.”44

This timing factor usually applies to protect an officer from

being judged with 20/20 hindsight. Such hindsight often fails

to take into account what an officer reasonably knew when he

or she acted, especially when the officer had to make a splitsecond

decision in a “tense, uncertain, and rapidly evolving”

situation.45 For example, if a police officer shot a suspect

after the suspect brandished what looked like a gun, the

officer’s reasonable perception that the suspect was armed

would entitle the officer to qualified immunity—even if the

“gun” turned out to be a cell phone.46 But the timing factor

also applies when later-discovered facts arguably justify an

officer’s actions even though the officer could not have

known those facts when he or she acted. For example, if a

police officer shot a suspect before perceiving any threat, the

officer would lack qualified immunity—even if the suspect

actually had a gun nearby and likely would have harmed the

officer.



44 Hernandez v. Mesa, 137 S. Ct. 2003, 2007 (2017) (per curiam)

(citation and internal quotation marks omitted).

45 Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam)

(citation omitted).

46 See Simmonds v. Genesee Cty., 682 F.3d 438, 442, 445 (6th Cir.

2012).



RODRIGUEZ V. SWARTZ 19



The Supreme Court recently reaffirmed this rule in

Hernandez v. Mesa. There, a U.S. Border Patrol agent shot

and killed 15-year-old Sergio Hernandez, a Mexican citizen,

in a culvert between the United States and Mexico.47 The

Fifth Circuit had held that even if the shooting violated the

Fifth Amendment, it was not clearly established that the

Constitution applied to aliens abroad.48 But the Supreme

Court rejected that analysis, holding that because

“Hernandez’s nationality and the extent of his ties to the

United States were unknown to [the agent] at the time of the

shooting,” those facts were irrelevant.49

J.A.’s citizenship and ties to the United States are

similarly irrelevant here. When he shot J.A., Swartz could

not have known whether the boy was an American citizen.

Thus, Swartz is not entitled to qualified immunity on the

bizarre ground that J.A. was not an American. For all Swartz

knew, J.A. was an American citizen with family and activities

on both sides of the border. Therefore, the question is not

whether it was clearly established that aliens abroad have

Fourth Amendment rights. Rather, it is whether it was clearly

established that it was unconstitutional for an officer on

American soil to use deadly force without justification

against a person of unknown nationality on the other side of

the border.



47 137 S. Ct. 2003, 2004–05 (2017) (per curiam).

48 Hernandez v. United States, 785 F.3d 117, 120–21 (5th Cir. 2015)

(en banc), vacated and remanded sub nom. Hernandez v. Mesa, 137 S. Ct.

2003 (2017) (per curiam).

49 Hernandez, 137 S. Ct. at 2007.



20 RODRIGUEZ V. SWARTZ



Had there been a serious question about whether the

Constitution banned federal officers from gratuitous crossborder

killings, Tennessee v. Garner50 and Harris v.

Roderick51 would have answered it. “It does not take a court

ruling for an official to know that no concept of

reasonableness could justify the unprovoked shooting of

another person.”52 Any reasonable officer would have

known, even without a judicial decision to tell him so, that it

was unlawful to kill someone—anyone—for no reason. After

all, Tennessee v. Garner held that an officer could not shoot

a non-threatening, fleeing suspect.53 Would Swartz have us

treat it as an open question whether an officer could kill a

non-threatening person who was not a suspect and who was

not fleeing? Or, since the police officer in Garner shot the

fleeing suspect with a gun, would it be an open question if an

officer shot a fleeing suspect with a crossbow? Any

reasonable officer should know that the answer to both

questions, despite the lack of a case on all fours.54

We explained in Hardwick v. County of Orange that

“malicious criminal behavior is hardly conduct for which



50 471 U.S. 1, 11 (1985).

51 126 F.3d 1189, 1201 (9th Cir. 1997).

52 Hernandez v. United States, 757 F.3d 249, 279 (5th Cir. 2014)

(discussing the Fifth Amendment), rev’d en banc, 785 F.3d 117 (5th Cir.

2015).

53 471 U.S. at 3–4, 11.

54 See Hope v. Pelzer, 536 U.S. 730, 738–39, 741 (2002); see also

Browder v. City of Albuquerque, 787 F.3d 1076, 1082–83 (10th Cir. 2015)

(Gorsuch, J.).



RODRIGUEZ V. SWARTZ 21



qualified immunity is either justified or appropriate.”55

Qualified immunity “exists to protect mistaken but reasonable

decisions, not purposeful criminal conduct.”56 Rodriguez’s

complaint makes a persuasive case for murder charges.57

Indeed, the United States has indicted and tried Swartz for

murder.58 We are unable to imagine a serious argument that

a federal agent might not have known that it was unlawful to

shoot people in Mexico for no reason.



To be sure, Brosseau v. Haugen holds that the Fourth

Amendment prohibition on excessive force is “cast at a high

level of generality.”59 That general prohibition clearly

establishes a constitutional violation only “in an obvious

case.”60 But this is an obvious case. Unlike officers in other

situations,61 Swartz did not have to determine how much

force to use; he was not permitted to use any force



55 844 F.3d 1112, 1119 (9th Cir. 2017).

56 Id.

57 See 18 U.S.C. § 1111(a); ARIZ. REV. STAT. § 13-1104.

58 See United States v. Corinthian Colls., 655 F.3d 984, 999 (9th Cir.

2011) (permitting judicial notice of this fact). A jury acquitted Swartz of

murder but hung on manslaughter. The United States has indicated that

it will retry Swartz for manslaughter. United States v. Swartz, No. 4:15-

cr-01723 (D. Ariz.), ECF Nos. 454, 498.

59 543 U.S. 194, 199 (2004) (per curiam).

60 Id. (citing Hope v. Pelzer, 536 U.S. 730, 738 (2002)).

61 See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1153–54 (2018) (per

curiam); White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mullenix

v. Luna, 136 S. Ct. 305, 309–10 (2015) (per curiam).



22 RODRIGUEZ V. SWARTZ



whatsoever against someone who was innocently walking

down a street in Mexico.



One final note. The district court dismissed Rodriguez’s

Fifth Amendment claim because the Fourth Amendment

applied, and we do not analyze the Fifth Amendment claim

here. But if the Fourth Amendment does not apply because

J.A. was in Mexico, then the Fifth Amendment “shocks the

conscience” test may still apply.62 Swartz’s conduct would

fail that test. We cannot imagine anyone whose conscience

would not be shocked by the cold-blooded murder of an

innocent person walking down the street in Mexico or Canada

by a U.S. Border Patrol agent on the American side of the

border.



II. BIVENS CAUSE OF ACTION



Under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, courts may extend a cause of

action for money damages for certain constitutional

violations.63 We hold that based on the facts alleged in the

complaint, Rodriguez is entitled to bring a “Bivens cause of

action” against Swartz.

A. We may consider whether to extend Bivens.

Before we consider whether Rodriguez has a Bivens cause

of action, however, we must address two preliminary issues:

jurisdiction and waiver. We previously held that on an

62 Compare Hernandez v. United States, 785 F.3d 117, 135 (5th Cir.

2015) (Prado, J., concurring) with id. at 122–23 (Jones, J., concurring).

63 403 U.S. 388, 389 (1971).



RODRIGUEZ V. SWARTZ 23



interlocutory appeal of a denial of qualified immunity, we

lacked appellate jurisdiction to decide whether there was a

Bivens cause of action.64 Moreover, Swartz did not challenge

whether Rodriguez could sue under Bivens until he filed his

reply brief on appeal. That would normally constitute a

waiver even though the United States addressed the issue in

its amicus brief.65



But there is new law to consider. In Hernandez v. Mesa,

the Fifth Circuit confronted a cross-border shooting similar to

the one here. It held that even if the shooting was

unconstitutional, the law was not clearly established at the

time.66 It did not decide whether the family of the boy who

was shot had a Bivens cause of action.67 In fact, the officer

who shot him had not moved to dismiss on that basis.68 Yet

the Supreme Court reversed, holding that whether Bivens

applied was “‘antecedent’ to the other questions presented.”69

It then remanded the case so that the Fifth Circuit could

64 See, e.g., Sissoko v. Rocha, 440 F.3d 1145, 1154 (9th Cir. 2006),

reinstated in relevant part on denial of reh’g en banc, 509 F.3d 947, 948

(9th Cir. 2007).



65 See United States v. Salman, 792 F.3d 1087, 1090 (9th Cir. 2015);

Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir. 1993).

66 See Hernandez v. United States, 785 F.3d 117, 120–21 (5th Cir.

2015) (en banc), vacated and remanded sub nom. Hernandez v. Mesa,

137 S. Ct. 2003 (2017) (per curiam).

67 See id. at 121 n.1 (Jones, J., concurring).

68 See Hernandez, 137 S. Ct. at 2011 (Breyer, J., dissenting).

69 Id. at 2006 (per curiam) (quoting Wood v. Moss, 134 S. Ct. 2056,

2066 (2014)).



24 RODRIGUEZ V. SWARTZ



consider whether the boy’s family had a Bivens cause of

action.70 In a different context, we have also held that

qualified immunity “by necessity” implicates whether there

is a Bivens cause of action.71 We therefore hold that we have

jurisdiction to decide whether Rodriguez has a Bivens cause

of action.72 Given the Supreme Court’s instruction in

Hernandez, we must now address that issue.

B. Bivens permits a cause of action for damages in

certain cases.



Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics held that a violation of the Fourth

Amendment by federal agents acting under color of law gave

rise to a cause of action for money damages.73 In that case,

federal agents arrested Webster Bivens and searched his

home. But the agents did not have probable cause or a search

warrant, so their search and seizure violated the Constitution.

The Court held that Bivens was entitled to sue the agents for



70 See id. at 2006–07.

71 Solida v. McKelvey, 820 F.3d 1090, 1093 (9th Cir. 2016); see

Wilkie v. Robbins, 551 U.S. 537, 549 n.4 (2007) (quoting Hartman v.

Moore, 547 U.S. 250, 257 n.5 (2006)) (stating that whether a cause of

action exists is “directly implicated by the defense of qualified immunity

and [is] properly before us on interlocutory appeal”).

72 Other circuits have reached the same conclusion. See Vanderklok

v. United States, 868 F.3d 189, 197 (3d Cir. 2017); De La Paz v. Coy,

786 F.3d 367, 371 (5th Cir. 2015); Vance v. Rumsfeld, 701 F.3d 193,

197–98 (7th Cir. 2012) (en banc); Doe v. Rumsfeld, 683 F.3d 390, 393

(D.C. Cir. 2012); Koubriti v. Convertino, 593 F.3d 459, 466 (6th Cir.

2010).

73 403 U.S. 388, 389 (1971).



RODRIGUEZ V. SWARTZ 25



damages.74 It explained that there were “no special factors

counselling hesitation in the absence of affirmative action by

Congress,” in part because the agents themselves, not the

government, would be liable for damages.75

Justice Harlan concurred in the judgment. He agreed that

the Court had the “judicial power to accord damages as an

appropriate remedy in the absence of any express statutory

authorization” by Congress.76 He then explained that

damages were “the only possible remedy” for Bivens: an

injunction could not prevent what had already happened, the

United States was immune to suit, and the exclusionary rule

would be irrelevant if Bivens had not committed any crimes.77

So for Bivens, it was “damages or nothing.”78

In Davis v. Passman, the Court extended Bivens to a case

of employment discrimination in violation of the Fifth

Amendment.79 A congressman had fired an administrative

assistant because she was female; the congressman thought a

male should hold the position.80 The Court held that the



74 Id. at 389–90.

75 Id. at 396.

76 Id. at 402 n.4 (Harlan, J., concurring in the judgment) (discussing

J.I. Case Co. v. Borak, 377 U.S. 426 (1964)).

77 Id. at 409–10.

78 Id. at 410.

79 442 U.S. 228 (1979).

80 Id. at 230.



26 RODRIGUEZ V. SWARTZ



wrongfully terminated woman could sue the congressman for

damages.81 Citing Justice Harlan’s concurring opinion in

Bivens, the Court explained that for the woman, it was

“damages or nothing.”82 Moreover, no “special factors”

barred her cause of action. Although Congress had not

passed a statute prohibiting sex discrimination against

congressional employees, there was also no evidence that

Congress intended to permit such discrimination.83 And

though the Speech and Debate Clause of the Constitution

confers special protections on members of Congress,84 the

Court reaffirmed that “all individuals, whatever their position

in government, are subject to federal law.”85 The Court

therefore held that unless the congressman could somehow

show that the Speech and Debate Clause protected his

actions, the woman he had fired could sue him for damages.86



A year later, in Carlson v. Green, the Court extended

Bivens to a claim that federal prison officials violated the



81 Id. at 242, 244, 248.

82 Id. at 245 (quoting Bivens v. Six Unknown Named Agents, 403 U.S.

388, 410 (1971) (Harlan, J., concurring in the judgment)).

83 Id. at 247.

84 See U.S. CONST. art. I, § 6, cl. 1 (providing that Senators and

Representatives, “for any Speech or Debate in either House, . . . shall not

be questioned in any other Place”).

85 Davis, 442 U.S. at 246 (quoting Butz v. Economou, 438 U.S. 478,

506 (1978)).

86 Id. at 246, 248; see id. at 235 n.11 (reserving the question of

whether the Speech or Debate Clause protected the congressman’s

actions).



RODRIGUEZ V. SWARTZ 27



Eighth Amendment by not providing an inmate with proper

medical care.87 The Court extended a Bivens cause of action

because there were “no special factors counselling hesitation”

and because no substitute remedies were available.88 In so

holding, the Court explained that Bivens actions are a

desirable deterrent against abusive federal employees.89

Bivens, Davis, and Carlson therefore establish that

plaintiffs can sue for damages for certain constitutional

violations. But other cases demonstrate that a Bivens cause

of action is not available for every constitutional violation.

Chappell v. Wallace90 and United States v. Stanley91 hold that

Bivens does not apply to injuries that arise out of military

service. Those two decisions emphasize Congress’s unique

power over the military.92 Bush v. Lucas holds that a public

employee fired in violation of the First Amendment does not

have a Bivens cause of action because Congress has already

created a detailed system for resolving personnel disputes.93

According to Schweiker v. Chilicky, there is no Bivens

remedy for a procedural due process violation committed



87 446 U.S. 14, 16 & n.1 (1980).

88 Id. at 18–19.

89 See id. at 21–22.

90 462 U.S. 296, 304 (1983).

91 483 U.S. 669, 681–82, 684 (1987).

92 See Stanley, 483 U.S. at 379–84; Chappell, 462 U.S. at 300–04.

93 462 U.S. 367, 388–90 (1983).



28 RODRIGUEZ V. SWARTZ



during a Social Security disability determination.94 That is

because the Social Security Act already provides an elaborate

scheme for resolving whether a person is entitled to Social

Security benefits.95 FDIC v. Meyer holds that Bivens does not

apply to suits against federal agencies,96 and Correctional

Services Corp. v. Malesko similarly holds that one cannot

bring a Bivens action against a private corporation.97 In

Wilkie v. Robbins, the Court held that Bivens did not extend

to a case about a ranch owner who claimed that the

government intimidated and harassed him.98 Minneci v.

Pollard holds that Bivens does not extend to suits against

private prison employees for Eighth Amendment violations.99

Unlike the government employees in Carlson, the private

contractors in Minneci could be sued under state tort law.100

And in Ziglar v. Abbasi, the Court held that those detained on

suspicion of terrorism after the September 11 attacks did not

have a Bivens cause of action to challenge their detention.101

Abbasi demonstrates several principles that have emerged

from this line of cases. First, Abbasi makes plain that even



94 487 U.S. 412, 414 (1988).

95 Id. at 425, 428–29.

96 510 U.S. 471, 484 (1994).

97 534 U.S. 61, 66, 74 (2001).

98 551 U.S. 537, 561–62 (2007).

99 565 U.S. 118, 125 (2012).

100 See id. at 126–31.

101 137 S. Ct. 1843, 1863 (2017).



RODRIGUEZ V. SWARTZ 29



though a Bivens action lies for some constitutional violations

(like the Fourth Amendment claim in Bivens), it does not lie

for all violations (like the Fourth Amendment claim in

Abbasi).102



Second, Abbasi explains that if a case presents a “new

context” for a Bivens claim, then we must exercise “caution”

in determining whether to extend Bivens.103 That is because

“expanding the Bivens remedy is now a ‘disfavored’ judicial

activity.”104 And while Abbasi mandates caution and disfavor

only when courts extend Bivens into a “new context,” a case

presents a new context whenever it is “different in a

meaningful way from previous Bivens cases decided by [the

Supreme] Court.”105



Third, if a case presents a new context for a Bivens claim,

then we can extend it only if two conditions are met. One

condition is that the plaintiff must not have any other

adequate alternative remedy. The other condition is that there

cannot be any “special factors” that lead us to believe that

Congress, instead of the courts, should be the one to authorize

a suit for money damages.106



102 See id. at 1854, 1859, 1863.

103 Id. at 1856.

104 Id. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).

105 Id. at 1859; see id. at 1865 (“Given this Court’s expressed caution

about extending the Bivens remedy, . . . the new-context inquiry is easily

satisfied.”).

106 See id. at 1857–58.



30 RODRIGUEZ V. SWARTZ



Together, these three principles restrict when we can

extend a Bivens cause of action. But Bivens and its progeny

are still good law. Bivens, Davis, and Carlson have never

been overruled, implicitly or explicitly. Instead, Abbasi went

out of its way to emphasize that the Court did “not intend[] to

cast doubt on the continued force, or even the necessity, of

Bivens in the search-and-seizure context in which it arose.”107

So at least in the “common and recurrent sphere of law

enforcement,” Bivens is “settled law.”108

This brings us to a fourth principle of the Court’s Bivens

jurisprudence: in the right case, we may extend Bivens into a

new context. After all, if Bivens could not be expanded so

that it applied in a new context, there would be no need for

“caution” or treating expansion as a “disfavored judicial

activity,” or considering whether there was an adequate

alternative remedy or special factors. Determining that the

context was new would be the end of the inquiry, not the

beginning. If extension were prohibited, then Abbasi could

simply have concluded that each of the claims presented a

“new context” and ended its analysis there. But instead,

Abbasi went on to explain why extension was inappropriate

for certain claims.109 And for the remaining claim, it

remanded the case to let a lower court consider in the first

instance whether to extend Bivens.110 That instruction for a



107 Id. at 1856.

108 Id. at 1857.

109 Id. at 1860–63.

110 Id. at 1865 (plurality opinion).



RODRIGUEZ V. SWARTZ 31



lower court to consider extension would have been

superfluous if courts were barred from extending Bivens.

We apply these four principles in this case. This case

presents a new Bivens context. Like Bivens, this case is about

a federal law enforcement officer who violated the Fourth

Amendment. But this case differs from Bivens because J.A.

was killed in Mexico (by a bullet fired in the United States)

and because we are applying the Constitution to afford a

remedy to an alien under these circumstances.111 We

therefore cannot extend Bivens unless: (1) Rodriguez has no

other adequate alternative remedy; and (2) there are no

special factors counseling hesitation. We now turn to those

two inquiries, keeping in mind that extension is disfavored

and that we must exercise caution.



C. Rodriguez does not have an adequate alternative

remedy.



We cannot grant a Bivens cause of action if “any

alternative, existing process for protecting the [constitutional]

interest amounts to a convincing reason for the Judicial

Branch to refrain from providing a new and freestanding

remedy in damages.”112 We also cannot extend Bivens if

Congress’s “failure to provide money damages, or other

significant relief, has not been inadvertent.”113



111 See Hernandez v. Mesa, 885 F.3d 811, 816 (5th Cir. 2018) (en

banc); id. at 824 (Prado, J., dissenting); see also Hernandez v. Mesa,

137 S. Ct. 2003, 2008 (2017) (Thomas, J., dissenting).

112 Wilkie v. Robbins, 551 U.S. 537, 550 (2007).

113 Berry v. Hollander, 925 F.2d 311, 314 (9th Cir. 1991) (citation

omitted).



32 RODRIGUEZ V. SWARTZ



Swartz and the United States have suggested several

possible alternative remedies. But even though an alternative

remedy need not be “perfectly congruent” with Bivens114 or

“perfectly comprehensive,”115 it still must be “adequate.”116

None of the suggested alternatives is adequate. We also do

not think that Congress meant to bar a remedy.

Congressional legislation that does address Bivens (the

Federal Tort Claims Act, as amended) signals at least

acquiescence. That other statutes were silent in unrelated

circumstances is irrelevant: here, “[a]s is often the case,

[C]ongressional silence whispers” only “sweet nothings.”117



1. Rodriguez cannot bring a tort claim against

the United States.



The United States has sovereign immunity, meaning it

cannot be sued without its consent. The Federal Tort Claims

Act (FTCA) provides that consent for certain tort claims

brought against the United States, including certain claims

about abusive federal law enforcement officers.118 But the

FTCA also specifically provides that the United States cannot



114 Minneci v. Pollard, 565 U.S. 118, 129 (2012).

115 Adams v. Johnson, 355 F.3d 1179, 1185 n.3 (9th Cir. 2004)

(citation omitted).

116 See Minneci, 565 U.S. at 120; see also id. at 130 (“roughly

similar”).

117 La. Health Serv. & Indem. Co. v. Rapides Healthcare Sys.,

461 F.3d 529, 537 (5th Cir. 2006).

118 See 28 U.S.C. §§ 2674, 2680(h).



RODRIGUEZ V. SWARTZ 33



be sued for claims “arising in a foreign country.”119 This

“foreign country exception” means that the United States is

completely immune from “all claims based on any injury

suffered in a foreign country, regardless of where the tortious

act or omission occurred.”120 J.A. suffered his deadly injury

in Mexico, so Rodriguez cannot sue the United States under

the FTCA.121



But this foreign country exception does not imply, as

Swartz, the United States, and the dissent all argue, that

Congress intended to prevent Rodriguez from having a Bivens

remedy. This is because “the foreign country exception . . .

codified Congress’s ‘unwilling[ness] to subject the United

States to liabilities depending upon the laws of a foreign

power.’”122 At the time, standard choice-of-law analyses,

which have not been uniformly abrogated, focused on the

place the harm occurred, and would have compelled U.S.

courts to apply foreign law, even to a state common law

claim, leading “to a good deal of difficulty.”123 Thus, “[t]he

object being to avoid application of substantive foreign law,

Congress evidently used the modifier ‘arising in a foreign

country’ to refer to claims based on foreign harm or injury,



119 28 U.S.C. § 2680(k).

120 Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004).

121 See id. at 697–99, 701–02, 712.

122 Id. at 707 (quoting United States v. Spelar, 338 U.S. 217, 221

(1949)).

123 Id. (quoting Hearings on H.R. 5373 et al. Before the H. Comm. on

the Judiciary, 77th Cong., 2d Sess., 35 (1942) (statement of Assistant

Att’y Gen. Francis Shea)).



34 RODRIGUEZ V. SWARTZ



the fact that would trigger application of foreign law to

determine liability.”124 And even under modern choice of law

rules, the application of state tort law could mean the

application of state choice of law rules, which, in turn, could

lead to the application of foreign substantive law, which is

what Congress did not want.125 Allowing a Bivens cause of

action here, however, does not implicate this concern because

it arises under only U.S. constitutional law and does not

implicate Mexican substantive law or even Arizona choiceof-

law provisions that could lead to the application of

Mexican substantive law. This is all that Congress sought to

avoid.126



More significantly, an amendment to the FTCA called the

Westfall Act shows that the FTCA is concerned only with

common law actions. Under the Westfall Act, if a federal

agent commits a tort while acting within the scope of his or

her employment, then any resulting civil suit must be brought

against the United States under the FTCA.127 If the agent is

sued individually, the United States is substituted as the

defendant.128 The purpose of the amendment was to “protect

Federal employees from personal liability for common law

torts committed within the scope of their employment, while

providing persons injured by the common law torts of Federal

employees with an appropriate remedy against the United



124 Id. at 707–08.

125 Id. at 710.

126 Id.

127 28 U.S.C. § 2679.

128 Id. § 2679(b)(1), (d).



RODRIGUEZ V. SWARTZ 35



States.”129 The Westfall Act is clear, however, that the

protection afforded federal employees for common law torts

“does not extend or apply to a civil action against an

employee of the Government . . . which is brought for a

violation of the Constitution of the United States.”130

In other words, the FTCA has an “explicit exception for

Bivens claims,” allowing them to proceed against

individuals.131 This ensures that federal officers cannot dodge

liability for their own constitutional violations by foisting

their liability onto the government. As a contemporaneous

House Report explained, “[s]ince the Supreme Court’s

decision in Bivens, . . . the courts have identified [a

constitutional] tort as a more serious intrusion of the rights of

an individual that merits special attention. Consequently, [the

Westfall Act] would not affect the ability of victims of

constitutional torts to seek personal redress from Federal

employees who allegedly violate their Constitutional

rights.”132 Indeed, in discussing the FTCA, the dissent

“acknowledge[s] that in a proper context, as delineated by the

Supreme Court in Abbasi, the Bivens remedy may well be

available.”133 We agree, and as we show, after Abbasi, the

facts here do present a proper context. The Westfall Act also

129 Federal Employees Liability Reform and Tort Compensation Act

of 1988, Pub. L. No. 100-694, § 2(b), 102 Stat. 4563, 4564.



130 28 U.S.C. § 2679(b)(2)(A).

131 Hui v. Castaneda, 559 U.S. 799, 807 (2010).

132 H.R. REP. NO. 100-700, at 6 (1988), as reprinted in 1988

U.S.C.C.A.N. 5945, 5950.

133 Dissent at 65 n.3.



36 RODRIGUEZ V. SWARTZ



shows why the dissent is wrong to claim an incongruity

between an alien’s inability to sue the United States for

injuries on Mexican soil under the FTCA and her ability to

sue an individual for those same injuries under Bivens. That

is exactly the structure the Westfall Act imposes.

2. Rodriguez cannot bring a state law tort claim

against Swartz.



The United States suggests that Rodriguez could sue

Swartz for wrongful death under Arizona tort law. But its

brief merely mentions the possibility, without fleshing it out

with any citations to Arizona law. And it appears that the

Westfall Act would bar such a claim. As just discussed, the

Westfall Act in effect “accords federal employees absolute

immunity from common-law tort claims arising out of acts

they undertake in the course of their official duties.”134

At this stage of litigation, we must assume that Swartz

acted within the scope of his employment. The complaint

alleges that J.A. was shot by an agent “stationed on the U.S.

side of the fence” and that Swartz “acted under color of law.”

Swartz himself interprets the complaint as alleging that he

was “on duty” when he shot J.A. He argued in district court

that he had acted “within the course and scope of his

employment.” Under the applicable law, an employee “acts

within the scope of employment when performing work

assigned by the employer or engaging in a course of conduct

134 Osborn v. Haley, 549 U.S. 225, 229 (2007).



RODRIGUEZ V. SWARTZ 37



subject to the employer’s control.”135 If Swartz was “on

duty” when he shot J.A., then it seems that he would have

been acting within the scope of his employment even if he

violated rules governing his conduct.136 Thus, Rodriguez

cannot bring a state-law tort action against Swartz without the

Westfall Act converting it into an FTCA suit against the

United States.137 At that point, as discussed, the claim would

be barred by the FTCA’s foreign country exception because

the injury occurred in Mexico. Although the application of

Arizona law would not on its face qualify as the application

of foreign law, the concern was that a state’s choice of law

rules as applied to common law torts could still require the

application of foreign law.



3. Restitution is not an adequate alternative.



The United States indicted and tried Swartz for murdering

J.A. Though a jury acquitted him of murder, the government

has indicated that it will retry him for manslaughter. If he is

convicted, federal law will require him to pay restitution to



135 Engler v. Gulf Interstate Eng’g, Inc., 280 P.3d 599, 602 n.1 (Ariz.

2012) (en banc) (citation omitted); see Wilson v. Drake, 87 F.3d 1073,

1076 (9th Cir. 1996) (applying the agency law of the state where the

alleged tort occurred).

136 Cf. Arizona v. Schallock, 941 P.2d 1275, 1282–84 (Ariz. 1997) (en

banc).

137 See Minneci v. Pollard, 565 U.S. 118, 126 (2012) (“Prisoners

ordinarily cannot bring state-law tort actions against employees of the

Federal Government.”) (citing the Westfall Act).

38 RODRIGUEZ V. SWARTZ

J.A.’s estate.138 The United States argues that such restitution

is an adequate remedy.

But restitution is not an adequate remedy for several

reasons. First, even if a federal agent commits a crime in the

course of his employment, the government has discretion

whether to charge him. A criminal charge is the

government’s remedy, not the victim’s. Second, Swartz can

be convicted of a crime only if his guilt is proven “beyond a

reasonable doubt.” By contrast, a Bivens claim requires the

jury to find only that it is “more likely than not” that Swartz

used objectively unreasonable force.139 So even if Swartz is

acquitted of all criminal charges, he could still be liable for

money damages.140 Third, criminal charges were potentially

available in Bivens itself, yet that availability did not bar a

damages cause of action.141

4. Section 1983 does not preclude a Bivens

remedy.

According to the United States and the dissent, 42 U.S.C.

§ 1983 implies the absence of a damages remedy here. Under

§ 1983, a state or local official who violates the constitution

may be sued for damages by “any citizen of the United States

138 See 18 U.S.C. § 3663A(a)(1), (b)(2)–(4).

139 See Addington v. Texas, 441 U.S. 418, 423–24 (1979).

140 See United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam).

141 See Bivens v. Six Unknown Named Agents, 409 F.2d 718, 724–25

(2d Cir. 1969) (discussing 18 U.S.C. §§ 2234–36), rev’d, 403 U.S. 388

(1971).



RODRIGUEZ V. SWARTZ 39



or other person within the jurisdiction thereof.”142 Because

J.A. was not an American citizen, and because he was not

shot within the jurisdiction of the United States, Rodriguez

could not sue a state or local police officer for this type of

shooting. Thus, the argument goes, Rodriguez should not be

allowed to sue Swartz under Bivens, either. The dissent

claims that it is “bizarre” for federal officers to face liability

when state officers would not.



We disagree. Nearly 150 years ago, in response to an

urgent message from President Grant, Congress enacted what

became § 1983143 as part of legislation to ensure that state and

local officials could not escape liability for constitutional

violations, which were endemic in the recently defeated

Confederate States.144 Proponents “continually referred to the

failure of the state courts to enforce federal law designed for

the protection of the freedman, and saw § [1983] as

remedying this situation by interposing the federal courts

between the State and citizens of the United States.”145 It is

inconceivable that, at the same time, Congress thought about

(and deliberately excluded liability for) cross-border incidents

involving federal officials.



142 42 U.S.C. § 1983.

143 See The Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13, 13

(extending a cause of action to “any person within the jurisdiction of the

United States”).

144 See Mitchum v. Foster, 407 U.S. 225, 240–42 (1972); see also

Hernandez v. Mesa, 885 F.3d 811, 830 (5th Cir. 2018) (Prado, J.,

dissenting).

145 Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 725 (1989) (opinion

of O’Connor, J.).



40 RODRIGUEZ V. SWARTZ



5. There is no evidence a Mexican court could

grant a remedy.



Swartz argues that Rodriguez could seek a remedy in a

Mexican court. But that argument appears to be a mere

makeweight. Swartz does not cite any authority showing that

a Mexican court could exercise jurisdiction over him or that

Rodriguez would have a remedy under Mexican law.146 Nor

does he attempt to show how Rodriguez could execute on a

judgment from a Mexican court without running afoul of the

Westfall Act.



6. The remaining arguments also fail.



We can summarily dispose of the three remaining

arguments for the availability of some other remedy. First,

even though the Torture Victim Protection Act (an

amendment to the Alien Tort Claims Act) does not apply to

American officials,147 that is because Congress was focused

on allowing claims for violations of customary international

law against foreign officials, not barring suits against

American ones. The goal was the codification of a particular

Second Circuit opinion construing the Alien Tort Claims Act

to allow suit against foreign torturers; Congress was

responding to an attack on that construction by an influential



146 A brief that actually cites Mexican law argues that Border Patrol

agents cannot be sued in Mexican courts in cases like this. See Brief of

Mexican Jurists, Practitioners, and Scholars as Amici Curiae in Support

of Petitioners, Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (No. 15-118),

2016 WL 7229146.

147 Pub. L. No. 102-256, § 2(a), 106 Stat. 73, 73 (1992) (codified at

28 U.S.C. § 1350 note).



RODRIGUEZ V. SWARTZ 41



judge.148 Domestic officials were not at issue. Second, there

is a history of diplomacy when the military harms aliens

abroad.149 But this case is not about the military, and nothing

in the record suggests that any diplomatic remedy for J.A.’s

mother is available. And third, Congress does permit

discretionary administrative payments for injuries suffered

abroad if Drug Enforcement Administration, State

Department, or military personnel cause those injuries.150 But

unlike the Border Patrol, those agencies routinely operate and

maintain an extended presence abroad.151 Congress thus

granted those agencies, as aspects of the United States, the

discretion to pay for foreign tort claims to promote

international comity.152 Under these statutes, such a



148 See H.R. REP. NO. 102-367, at 3–4 (1991), as reprinted in 1992

U.S.C.C.A.N. 84, 86 (discussing Filartiga v. Pena-Irala, 630 F.2d 876 (2d

Cir. 1980), and Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 798

(D.C. Cir. 1984) (Bork, J., concurring)).

149 See William R. Mullins, The International Responsibility of a State

for Torts of its Military Forces, 34 MIL. L. REV. 59, 61–65 (1966).

150 21 U.S.C. § 904; 22 U.S.C. § 2669-1; 10 U.S.C. §§ 2734(a),

2734a(a).

151 See, e.g., S. REP. NO. 96-173, at 36 (1979), as reprinted in 1979

U.S.C.C.A.N. 2003, 2038–39 (stating the DEA “has a substantial foreign

operation” and requested the ability to pay for torts its agents committed

abroad).

152 See 10 U.S.C. §§ 2734(a) (allowing payments “[t]o promote and

to maintain friendly relations”), 2734a(a) (allowing payments under

“international agreements”); 22 U.S.C. § 2669(b) (allowing payments “for

the purpose of promoting and maintaining friendly relations with foreign

countries”); S. REP. NO. 96-173, at 36 (1979), as reprinted in 1979

U.S.C.C.A.N. 2003, 2039 (seeking an alternative to the choice between

pulling an agent from a foreign country and the resulting “hostility and



42 RODRIGUEZ V. SWARTZ



discretionary payment to an alien is an effect, not the purpose.

These payments do not say anything about a Congressional

intent to preclude Bivens claims against individuals. If

anything, these statutes mostly cross-reference the FTCA,153

under which, after the Westfall Act, the availability of

discretionary administrative payments and lawsuits against

the United States does not bar action against individual

officers when the claim is a constitutional tort.154

In short, for Rodriguez, it is damages under Bivens or

nothing, and Congress did not intend to preclude Bivens.



D. No “special factors” are present in this case.



Though a Bivens action is Rodriguez’s only available

adequate remedy, we cannot extend Bivens if a “special

factor” counsels hesitation.155 Because we must proceed with

caution and are reluctant to extend Bivens, we have carefully

weighed all the reasons Swartz and the United States have

offered for denying a Bivens cause of action. But this case

does not present any such special factors. We are “well

suited . . . to consider and weigh the costs and benefits of

unfavorable publicity” there and leaving the agent to “the mercy of a

foreign court”).

153 See 21 U.S.C. § 904 (allowing the Drug Enforcement Agency to

pay in the manner authorized by the FTCA, 28 U.S.C. § 2672); 22 U.S.C.

§ 2669(f) (same for the State Department).

154 See 28 U.S.C. § 2679(b) (referencing 28 U.S.C. §§ 1346(b) (suits

against the United States) and 2672 (discretionary administrative

payments)).

155 See Wilkie v. Robbins, 551 U.S. 537, 554, 562 (2007).

RODRIGUEZ V. SWARTZ 43

allowing a damages action to proceed” in this cross-bordershooting

case, and there are no “sound reasons to think that

Congress might doubt the efficacy or necessity of a damages

remedy.”156



The special factors analysis is almost always performed

at a high level of specificity, not at the abstract level.157 For

example, Ziglar v. Abbasi looked at specific claims about

detention policies in the aftermath of the September 11

attacks, not at seizures and prison policies generally.158

Wilkie v. Robbins also focused on the concrete facts and

circumstances of that case.159 Likewise here, we look for

special factors in terms of the specific facts alleged in the

complaint, not cross-border shootings generally.160 In so

doing, it is essential to keep in mind that Rodriguez does not

seek damages from the United States. Neither does she seek

an injunction or declaratory judgment that might affect future

156 Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017).

157 See James E. Pfander & David Baltmanis, Rethinking Bivens:

Legitimacy and Constitutional Adjudication, 98 GEO. L.J. 117, 126 (2009)

(noting that “the Court now takes a case-by-case approach to the

evaluation of the availability of a Bivens action for particular

constitutional claims”).



158 Id. at 1860–63.

159 551 U.S. at 555–62.

160 United States v. Stanley conducted its special factors analysis at a

relatively high level of generality. 483 U.S. 669, 681 (1987). But that

was a case-specific decision, and the Court recognized that “varying levels

of generality” are possible. Id. Here, policy and analytic judgments lead

us to look for special factors at a low level of generality. Id. at 861–62.

44 RODRIGUEZ V. SWARTZ

government actions. Instead, she brings only a claim for

money damages against Swartz as an individual.

Of course, in many hypothetical situations, a cross-border

shooting would not give rise to a Bivens action. And in some

situations (e.g., repelling an armed invasion or foiling violent

smugglers), it would be frivolous to claim a Bivens remedy.

But this case involves the unjustifiable and intentional killing

of someone who was simply walking down a street in Mexico

and who did not direct any activity toward the United States.

Our discussion is limited to those facts.

1. This case is not about policies or policymakers.

A Bivens claim is “not a proper vehicle for altering an

entity’s policy,”161 and Abbasi holds that a special factor is

present when a plaintiff challenges high-level executive

branch policies.162 The plaintiffs in Abbasi sued

policymakers, including the Attorney General and the FBI

Director,163 in order to challenge “major elements of the

Government’s whole response to the September 11 attacks”

and any subsequent attacks that might have been planned.164

161 Abbasi, 137 S. Ct. at 1860 (quoting Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 74 (2001)) (internal quotation marks omitted).

162 See id. at 1860–61.

163 Id. at 1853.

164 Id. at 1861.



RODRIGUEZ V. SWARTZ 45



But Rodriguez does not challenge any government policy

whatsoever.165 And neither the United States nor Swartz

argues that he followed government policy. Instead, federal

regulations expressly prohibited Swartz from using deadly

force in the circumstances alleged.166 Rodriguez also sued a

rank-and-file officer, not the head of the Border Patrol or any

other policy-making official. This case is therefore like the

ones that Abbasi distinguished—those involving “standard

law enforcement operations”167 and “individual instances of

. . . law enforcement overreach.”168 The standards governing

Swartz’s conduct are the same here as they would be in any

other excessive force case. Thus, Abbasi implies that Bivens

is available.



2. Extending Bivens does not implicate national

security.



In Abbasi, there were national security concerns because

plaintiffs challenged the government’s response to September

11. That was a special factor because determining how best

to protect the United States is a job for Congress and the

165 Accord Hernandez v. Mesa, 885 F.3d 811, 826 (5th Cir. 2018)

(Prado, J., dissenting).



166 See 8 C.F.R. § 287.8(a)(2)(ii) (2012) (“Deadly force may be used

only when a designated immigration officer . . . has reasonable grounds to

believe that such force is necessary to protect the . . . officer or other

persons from the imminent danger of death or serious physical injury.”)

(emphasis added).

167 Abbasi, 137 S. Ct. at 1861 (citation and internal quotation marks

omitted).

168 Id. at 1862.



46 RODRIGUEZ V. SWARTZ



President, not judges.169 At the same time, however, Abbasi

warned that “national-security concerns must not become a

talisman used to ward off inconvenient claims—a label used

to cover a multitude of sins.”170 “This danger of abuse,”

Abbasi continued, “is even more heightened given the

difficulty of defining the security interest in domestic

cases.”171 Here, “national-security concerns” are indeed

waved before us as such a “talisman.”



We recognize that Border Patrol agents protect the United

States from unlawful entries and terrorist threats.172 Those

activities help guarantee our national security. But no one

suggests that national security involves shooting people who

are just walking down a street in Mexico.173 Moreover,

holding Swartz liable for this constitutional violation would

not meaningfully deter Border Patrol agents from performing

their duties. The United States and Swartz have identified no

duty that would have required Swartz to shoot J.A. Border



169 Id. at 1861; see Dep’t of Navy v. Egan, 484 U.S. 518, 529–30

(1988).

170 137 S. Ct. at 1862 (quoting Mitchell v. Forsyth, 472 U.S. 511, 523

(1985)) (internal quotation marks omitted).

171 Id. (quoting Mitchell, 472 U.S. at 523) (internal quotation marks

omitted).

172 See 6 U.S.C. § 211(e)(3) (defining the duties of the U.S. Border

Patrol).

173 Cf. Meshal v. Higgenbotham, 804 F.3d 417, 419 (D.C. Cir. 2015)

(detention abroad); Vance v. Rumsfeld, 701 F.3d 193, 196 (7th Cir. 2012)

(en banc) (interrogation and detention abroad); Lebron v. Rumsfeld,

670 F.3d 540, 545 (4th Cir. 2012) (detention); Arar v. Ashcroft, 585 F.3d

559, 565–66 (2d Cir. 2009) (en banc) (rendition to foreign nation).



RODRIGUEZ V. SWARTZ 47



Patrol agents have faced Fourth Amendment Bivens claims in

the past.174 Agents sued under Bivens are liable only when

they violate a “clearly established” constitutional right, and

the rules governing the use of lethal force are clearly

established.175 It cannot harm national security to hold

Swartz civilly liable any more than it would to hold him

criminally liable, and the government is currently trying to do

the latter. Thus, national security is not a special factor here.



3. Extending Bivens would not have problematic

foreign policy implications.



The United States argues that we should not extend

Bivens here because the cross-border nature of the shooting

implicates foreign policy. The United States is correct that

courts should not extend Bivens if it requires courts to judge

American foreign policy.176 But the United States has not

explained how any policy is implicated or could be

complicated by applying Bivens to this shooting. It has not

identified any policy that might be undermined. Just as

national security cannot be used as a talisman to ward off

inconvenient claims, neither does the “mere incantation” of

the magic words “foreign policy” cause a Bivens remedy to





174 E.g., Chavez v. United States, 683 F.3d 1102, 1106–07 (9th Cir.

2012); Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir. 2006).

175 The practical concerns raised in Vanderklok v. United States,

868 F.3d 189, 208–09 (3d Cir. 2017), do not exist here because Swartz

was a trained law-enforcement officer. See Hernandez v. Mesa, 885 F.3d

811, 828–29 (5th Cir. 2018) (Prado, J., dissenting).

176 Cf. Haig v. Agee, 453 U.S. 280, 292 (1981) (“Matters intimately

related to foreign policy . . . are rarely proper subjects for judicial

intervention.”).



48 RODRIGUEZ V. SWARTZ



disappear.177 In this case, extending Bivens would not

implicate American foreign policy. There is no American

foreign policy embracing shootings like the one pleaded here.

To the contrary: it would threaten international relations if we

declined to extend a cause of action, because it would mean

American courts could not give a remedy for a gross violation

of Mexican sovereignty.



The United States says that this case implicates foreign

policy because the American and Mexican governments have

discussed “the use of force at the border”178 and created a

bilateral council to “address border violence, use of force, and

ways to address and mitigate incidents of border violence.”179

It then says that if we extend Bivens here, it will “inject the

courts into these sensitive matters of international diplomacy

and risk undermining the government’s ability to speak with

one voice in international affairs.”

But that argument proves too much. It would have the

courts decline to address any crimes involving our border

with Mexico. If the government’s argument were correct,



177 Hernandez, 885 F.3d at 830 (Prado, J., dissenting) (quoting Def.

Distrib. v. U.S. Dep’t of State, 838 F.3d 451, 474 (5th Cir. 2016) (Jones,

J., dissenting)).

178 Governments of Mexico and the United States of America, Joint

Statement on the U.S.-Mexico Bilateral High Level Dialogue on Human

Rights, (Oct. 27, 2016), https://2009-2017.state.gov/r/pa/prs/ps/2016/10

/263759.htm.

179 Dep’t Homeland Sec., Written Testimony for a House Committee

on Oversight and Government Reform Hearing (Sept. 9, 2015),

https://www.dhs.gov/news/2015/09/09/written-testimony-dhs-southernborder-

and-approaches-campaign-joint-task-force-west.



RODRIGUEZ V. SWARTZ 49



then courts would be excluded from all “incidents of border

violence.” Yet district courts along the border address such

incidents routinely, in smuggling cases particularly,

concurrently with whatever diplomacy may also be

addressing them.



We fail to see how extending Bivens here would actually

implicate American foreign policy. No policy has been

brought to our attention, and no policymaking individuals

have been sued, unlike in Abbasi. Swartz did not act pursuant

to government policy. He broke the rules that were in the

Code of Federal Regulations.180 And the only policy interest

that the United States has put forward—maintaining dialogue

with the Mexican government—shows that our government

wants to reduce the number of cross-border shootings. To

that end, the United States prosecuted Swartz for murder.

The only foreign policy concern that we can glean from

the briefs is the need to avoid violating Mexican sovereignty.

As Mexico says in its amicus brief, “giving Mexican

nationals an effective remedy for harm caused by arbitrary

and unlawful conduct directed across the border by U.S.

Border Patrol agents would not conflict with Mexico’s laws

and customs and could not possibly damage relations between

our two countries.”



180 See 8 C.F.R. § 287.8(a)(2)(ii) (2012) (“Deadly force may be used

only when a designated immigration officer . . . has reasonable grounds to

believe that such force is necessary to protect the . . . officer or other

persons from the imminent danger of death or serious physical injury.”).



50 RODRIGUEZ V. SWARTZ



4. Any presumption against extraterritorial

remedies is rebutted.



Finally, we do not dispute the dissent’s suggestion that the

presumption against the extraterritorial application of statutes

suggests an analogous presumption against extraterritorial

Bivens claims. But the dissent ignores that the presumption

can be overcome when actions “touch and concern the

territory of the United States . . . with sufficient force to

displace the presumption.”181 That is the case here. Swartz

was an American agent acting within the scope of his

employment.182 Swartz’s bullets crossed the border, but he

pulled the trigger here.183 We have a compelling interest in

regulating our own government agents’ conduct on our own

soil.184 Presumably, that is why the United States was willing

to apply its criminal law “extraterritorially” in charging

Swartz with homicide, even while simultaneously arguing

that the presumption against extraterritoriality precludes the

Bivens claim here because the injury happened a few feet



181 Kiobel v. Royal Dutch Petrol. Co., 569 U.S. 108, 124–25 (2013).

182 Cf. Jensen v. Arab Bank, PLC, 138 S. Ct. 1386, 1406 (2018) (suit

against a Jordanian bank); Bank Markazi v. Peterson, 136 S. Ct. 1310,

1328–29 (2016) (judgment executed on assets owned by the Bank of Iran).

183 Cf. RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2098

(2016) (racketeering in Europe); Kiobel, 569 U.S. at 111–12 (human rights

violations in Nigeria); Morrison v. Nat’l Australia Bank Ltd., 561 U.S.

247, 251–52 (2010) (securities fraud by a company traded on the

Australian Stock Exchange).

184 See 1 RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 cmt.

e, at 420 (Am. Law Inst. 1971) (“[W]hen the primary purpose of the tort

rule involved is to deter or punish misconduct, the place where the

conduct occurred has peculiar significance.”).



RODRIGUEZ V. SWARTZ 51



onto the other side of the border. A damages remedy against

an officer for unconstitutional misconduct strengthens the set

of disincentives that deter it. And, as we have shown, no

other special factors counsel against this extraterritorial

application of Bivens.



CONCLUSION



Under the particular set of facts alleged in this case,

Swartz is not entitled to qualified immunity. The Fourth

Amendment applies here. 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. And despite our

reluctance to extend Bivens, we do so here: no other adequate

remedy is available, there is no reason to infer that Congress

deliberately chose to withhold a remedy, and the asserted

special factors either do not apply or counsel in favor of

extending Bivens.



Of course, the facts as pleaded may turn out to be

unsupported. When all of the facts have been exposed, the

shooting may turn out to have been excusable or justified.

There is and can be no general rule against the use of deadly

force by Border Patrol agents. But in the procedural context

of this case, we must take the facts as alleged in the

complaint. Those allegations entitle J.A.’s mother to proceed

with her case.



AFFIRMED.



52 RODRIGUEZ V. SWARTZ



(First Amended Complaint, Exhibit A)



APPENDIX



RODRIGUEZ V. SWARTZ 53



M. SMITH, Circuit Judge, dissenting:

This case presents yet another “tragic cross-border

incident in which a United States Border Patrol agent

standing on United States soil shot and killed a Mexican

national standing on Mexican soil.” Hernandez v. Mesa,

137 S. Ct. 2003, 2004 (2017) (per curiam). However, before

we can appropriately address any of the other challenging

issues presented by this case, we must first respond to a

question recently posed by the Supreme Court: “When a

party seeks to assert an implied cause of action under the

Constitution itself, . . . separation-of-powers principles are or

should be central to the analysis. The question is ‘who should

decide’ whether to provide for a damages remedy, Congress

or the courts?” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857

(2017) (quoting Bush v. Lucas, 462 U.S. 367, 380 (1983)).

In this case, the obvious answer is Congress. We lack the

authority to extend Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), to the

cross-border context presented in this case.1 In holding to the

contrary, the majority creates a circuit split, oversteps

separation-of-powers principles, and disregards Supreme

Court law. I therefore respectfully dissent.

I. Expansion of the Bivens Remedy Is Disfavored.

In recent years, the Supreme Court has hewed

consistently to a path of restraint in creating implied causes

1 In this dissent, I address only the “antecedent” Bivens question.

Hernandez, 137 S. Ct. at 2006 (quoting Wood v. Moss, 134 S. Ct. 2056,

2066 (2014)). I do not consider the extraterritorial reach of the Fourth

Amendment or Agent Swartz’s qualified immunity defense.

54 RODRIGUEZ V. SWARTZ

of action. However, the prevailing legal landscape was

markedly different at the time the Court decided Bivens. “In

the mid-20th century, the Court followed a different approach

to recognizing implied causes of action than it follows now.”

Abbasi, 137 S. Ct. at 1855. “During this ‘ancien regime,’ the

Court assumed it to be a proper judicial function to ‘provide

such remedies as are necessary to make effective’ a statute’s

purpose.” Id. (citation omitted) (first quoting Alexander v.

Sandoval, 532 U.S. 275, 287 (2001); then quoting J. I. Case

Co. v. Borak, 377 U.S. 426, 433 (1964)). “[A]s a routine

matter with respect to statutes, the Court would imply causes

of action not explicit in the statutory text itself.” Id. That

ancien regime gave rise to the Court’s decision in Bivens,

which created an implied cause of action to remedy a

constitutional violation by federal officials. Id.

The Court’s current approach is very different. Gone are

the days of apparent judicial generosity in recognizing

implied causes of action. Instead, the Court has “adopted a

far more cautious course before finding implied causes of

action.” Id. Indeed, the Court “has made clear that

expanding the Bivens remedy is now a ‘disfavored’ judicial

activity,” id. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662,

675 (2009)), and has “consistently refused to extend Bivens

to any new context or new category of defendants,” id.

(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68

(2001)). To this day, the Court has authorized only two

extensions of the original Bivens case, the most recent of

which occurred thirty-eight years ago. See Carlson v. Green,

446 U.S. 14 (1980); Davis v. Passman, 442 U.S. 228 (1979)).

All subsequent attempts to expand Bivens have failed. See

Abbasi, 137 S. Ct. at 1857 (citing eight Supreme Court

decisions).

RODRIGUEZ V. SWARTZ 55

This “notable change in the Court’s approach to

recognizing implied causes of action” is rooted in respect for

the separation of powers between Congress and the judiciary.

Id. “[I]t is a significant step under separation-of-powers

principles for a court to determine that it has the authority,

under the judicial power, to create and enforce a cause of

action for damages against federal officials in order to

remedy a constitutional violation.” Id. at 1856. In

determining whether our “traditional equitable powers suffice

to give necessary constitutional protection,” or whether a

damages remedy is necessary, we must pause when implying

a damages remedy implicates economic and governmental

concerns. Id. These concerns include, among other factors,

the substantial monetary cost of defending and indemnifying

claims against federal officials, as well as the time and

administrative costs incident to litigation. Id.

The Supreme Court’s present approach to implied causes

of action has wrought profound changes to the Bivens

landscape. Indeed, the Court recently mused that “the

analysis in the Court’s three Bivens cases might have been

different if they were decided today.” Id. In line with its

reluctance to imply causes of action, the Court reaffirmed the

viability of Bivens claims only narrowly in Abbasi,

articulating a restrictive take on both halves of the Bivens

test—(1) whether the case presents a new context for a Bivens

remedy, and (2) whether there are “special factors counselling

hesitation in the absence of affirmative action by Congress.”

Id. at 1857 (quoting Carlson, 446 U.S. at 18). First, with

respect to the new-context inquiry, the Court voiced

misgivings about extending Bivens to new contexts beyond

the narrow “context in which it arose.” Id. at 1856. Second,

with respect to the special-factors inquiry, the Court observed

that the decision to provide for a damages remedy should

56 RODRIGUEZ V. SWARTZ

“most often” be left to Congress, particularly in cases where

numerous policy considerations must be weighed. Id. at

1857. Thus, the Court has left little room, if any, for lower

courts to extend Bivens further.2

II. Hernandez Is Instructive.

Our sister circuit’s recent en banc decision in Hernandez

v. Mesa illustrates the proper application of these principles.

The facts of Hernandez are nearly identical to the ones in this

case. Agent Mesa, standing on United States soil, fatally shot

Sergio Hernandez, a fifteen-year-old Mexican citizen, on

Mexican soil. 885 F.3d 811, 814 (5th Cir. 2018) (en banc).

Hernandez’s parents sued Agent Mesa for damages under

Bivens, alleging that Agent Mesa violated Hernandez’s rights

under the Fourth and Fifth Amendments. Hernandez, 137 S.

Ct. at 2005.

2 The Supreme Court has further articulated these limiting principles.

We must exercise “‘caution’ before ‘extending Bivens remedies into any

new context,’” and abide by the rule that “a Bivens remedy will not be

available” in the presence of special factors. Abbasi, 137 S. Ct. at 1857

(quoting Malesko, 534 U.S. at 74). In conducting our analysis, we must

be mindful of the Supreme Court’s “general reluctance to extend judicially

created private rights of action.” Jesner v. Arab Bank, PLC, 138 S. Ct.

1386, 1402 (2018). The Court has “recently and repeatedly said that a

decision to create a private right of action is one better left to legislative

judgment in the great majority of cases.” Sosa v. Alvarez-Machain,

542 U.S. 692, 727 (2004) (first citing Malesko, 534 U.S. at 68; then citing

Alexander, 532 U.S. at 286–87). “The Court’s recent precedents cast

doubt on the authority of courts to extend or create private causes of action

even in the realm of domestic law,” Jesner, 138 S. Ct. at 1402, to say no

less of extending a judicially created private right of action

extraterritorially. Put simply, decisions to expand or create causes of

action are best tasked to “those who write the laws,” not “those who

interpret them.” Abbasi, 137 S. Ct. at 1857 (quoting Bush, 462 U.S. at

380).

RODRIGUEZ V. SWARTZ 57

The district court granted Agent Mesa’s motion to

dismiss. Id. A panel of the Fifth Circuit affirmed in part and

reversed in part, finding that Hernandez lacked Fourth

Amendment rights, but that the shooting, as alleged, had

violated Hernandez’s Fifth Amendment rights. Id. (citing

Hernandez v. United States, 757 F.3d 249, 267, 272 (5th Cir.

2014), aff’d in part, 785 F.3d 117 (5th Cir. 2015) (en banc)

(per curiam), vacated and remanded sub nom. Hernandez v.

Mesa, 137 S. Ct. 2003 (2017)). The panel concluded that

there was “no reason to hesitate in extending Bivens to this

new context,” and that Agent Mesa was not entitled to

qualified immunity. Id. at 2005–06 (citing Hernandez,

757 F.3d at 275, 279).

The Fifth Circuit reheard the case en banc. The en banc

court unanimously affirmed the district court’s dismissal of

the plaintiffs’ claims. Id. at 2006. The en banc court held

that the Fourth Amendment did not apply extraterritorially to

Hernandez, and that Agent Mesa was entitled to qualified

immunity on the Fifth Amendment claim. Id. (citing

Hernandez, 785 F.3d at 119–20). Having resolved the claims

on these grounds, the en banc court “did not consider

whether, even if a constitutional claim had been stated, a tort

remedy should be crafted under Bivens.” Id. (quoting

Hernandez, 757 F.3d at 121 n.1 (Jones, J., concurring)).

The Supreme Court granted certiorari. Id. Prior to

deciding Hernandez, the Court decided Abbasi. Id. Although

the availability of a Bivens remedy was not a question on

appeal in Hernandez, the Supreme Court ordered

supplemental briefing on that question. See Hernandez v.

Mesa, 137 S. Ct. 291 (2016).

58 RODRIGUEZ V. SWARTZ

The Court subsequently vacated the judgment of the Fifth

Circuit and instructed the court to consider, on remand, the

availability of a Bivens remedy for the plaintiffs’ Fourth and

Fifth Amendment claims, in light of “the intervening

guidance provided in Abbasi.” Hernandez, 137 S. Ct. at

2006–07. The Court observed that the Bivens question,

which was “antecedent” to the other questions in the case,

might prove to be dispositive, and render unnecessary the

resolution of the difficult Fourth and Fifth Amendment issues

presented in the case. Id. at 2006–07 (quoting Wood, 134 S.

Ct. at 2066).

On remand, the Fifth Circuit, sitting en banc, held that

“[t]he transnational aspect of the facts present[ed] a ‘new

context’ under Bivens, and numerous ‘special factors’

counsel[ed] against federal courts’ interference with the

Executive and Legislative branches of the federal

government.” Hernandez, 885 F.3d at 814. The en banc

court concluded that “extending Bivens would interfere with

the political branches’ oversight of national security and

foreign affairs”; “would flout Congress’s consistent and

explicit refusals to provide damage remedies for aliens

injured abroad”; and “would create a remedy with uncertain

limits.” Id. at 823. Mindful that “[i]n its remand of

Hernandez, the Supreme Court [had] chastened [the Fifth

Circuit] for ruling on the extraterritorial application of the

Fourth Amendment”—a “sensitive” issue with the potential

to spawn “consequences that are far reaching”—the en banc

court concluded that “[s]imilar ‘consequences’ [were]

dispositive of the ‘special factors’ inquiry,” and that “[t]he

myriad implications of an extraterritorial Bivens remedy

require[d] th[e] court to deny it.” Id. (quoting Hernandez,

137 S. Ct. at 2007).

RODRIGUEZ V. SWARTZ 59

Hernandez’s lengthy path through the federal court

system underscores several points. First, the availability of

a Bivens remedy is a critical threshold question. Second,

Abbasi did not merely recapitulate the Supreme Court’s past

law on Bivens—the Court characterized Abbasi as

“intervening guidance.” Hernandez, 137 S. Ct. at 2007.

Third, a principled application of Abbasi to the facts of this

case can yield only one answer: We lack the authority to

extend a Bivens remedy to the cross-border shooting context.

Unlike the Fifth Circuit, which faithfully followed the

Supreme Court’s guidance, the majority fails to acknowledge

the underlying principles of Abbasi, choosing instead to

distinguish Abbasi on narrow factual grounds. The majority

authorizes an impermissible extension of Bivens to a new

context despite the presence of numerous special factors

counselling judicial hesitation. In doing so, the majority

creates a circuit split and tees up our court for a new

“chastening” by the Supreme Court.

III. This Case Presents a New Context for a Bivens

Claim.

The majority acknowledges, as it must, that this case

presents a new Bivens context. However, the majority

downplays the new-context inquiry, relegating its analysis on

the question to only a few sentences. To properly address the

majority’s error, we first consider the Supreme Court’s new

instructions on the issue.

“The proper test for determining whether a case presents

a new Bivens context is as follows. If the case is different in

a meaningful way from previous Bivens cases decided by

th[e] Court, then the context is new.” Abbasi, 137 S. Ct. at

60 RODRIGUEZ V. SWARTZ

1859. That the differences between a given claim and

previous Bivens cases are “small” is insignificant: “Given

th[e] Court’s expressed caution about extending the Bivens

remedy, . . . the new-context inquiry is easily satisfied.” Id.

at 1865.

The Court provided a non-exhaustive list of differences

that may render a given context new. Id. at 1859–60. For

example,

A case might differ in a meaningful way

because of the rank of the officers involved;

the constitutional right at issue; the generality

or specificity of the official action; the extent

of judicial guidance as to how an officer

should respond to the problem or emergency

to be confronted; the statutory or other legal

mandate under which the officer was

operating; the risk of disruptive intrusion by

the Judiciary into the functioning of other

branches; or the presence of potential special

factors that previous Bivens cases did not

consider.

Id. at 1860. At bottom, the touchstone is whether the “claims

bear . . . resemblance to the three Bivens claims the Court has

approved in the past,” namely, “a claim against FBI agents

for handcuffing a man in his own home without a warrant; a

claim against a Congressman for firing his female secretary;

and a claim against prison officials for failure to treat an

inmate’s asthma.” Id. at 1860.

Rodriguez’s claims bear no resemblance whatsoever to

the three Bivens claims previously authorized by the Court.

RODRIGUEZ V. SWARTZ 61

The differences are obvious: J.A. was a Mexican national,

and his death, caused by the actions of a Border Patrol agent,

occurred in Mexico. This case presents far more than “a

modest extension” of the Supreme Court’s Bivens cases. Id.

at 1864. Indeed, “no court has previously extended Bivens to

cases involving either the extraterritorial application of

constitutional protections or in the national security domain,

let alone a case implicating both.” Meshal v. Higgenbotham,

804 F.3d 417, 424–25 (D.C. Cir. 2015), cert. denied, 137 S.

Ct. 2325 (2017). The Court also has never upheld a Bivens

claim against Border Patrol agents, who perform different

duties than FBI agents, Congressmen, or prison officials.

Under the Supreme Court’s new-inquiry test, which is “easily

satisfied,” Abbasi, 137 S. Ct. at 1859, the majority’s attempt

to liken this case to Bivens is unpersuasive.

The majority fails to accord any meaningful significance

to the conclusion that this case presents a new context for a

Bivens claim. By the majority’s reckoning, the fact that a

Bivens claim presents a new context means only that a court

must perform the second half of the Bivens analysis—the

special-factors inquiry—and nothing more. This approach

clearly flouts the Supreme Court’s instructions. The majority

fails to heed the Supreme Court’s warning that expanding

Bivens is a “disfavored” activity, id. at 1857 (quoting Iqbal,

556 U.S. at 675), and that courts may not run roughshod

across the separation of powers. As was the case in

Hernandez, Rodriguez’s “unprecedented claims embody . . .

a virtual repudiation of the Court’s holding” in Abbasi.

885 F.3d at 818. In fact, “[t]he newness of this ‘new context’

should alone require dismissal of [Rodriguez’s] damage

claims.” Id.

62 RODRIGUEZ V. SWARTZ

IV. Numerous Special Factors Counsel Against

Authorizing a Bivens Remedy in This Case.

Lest any doubt remain regarding our lack of authority to

extend Bivens to the new context found in this case, I next

consider the multiple special factors that also bar our

conjuring a Bivens remedy in this case.

“A Bivens remedy is not available . . . where there are

‘special factors counselling hesitation in the absence of

affirmative action by Congress.’” Hernandez, 137 S. Ct. at

2006 (quoting Carlson, 446 U.S. at 18). While the Supreme

Court “has not defined the phrase ‘special factors counselling

hesitation,’” it has explained that “the inquiry must

concentrate on whether the Judiciary is well suited, absent

congressional action or instruction, to consider and weigh the

costs and benefits of allowing a damages action to proceed.”

Abbasi, 137 S. Ct. at 1857–58. “[T]o be a ‘special factor

counselling hesitation,’ a factor must cause a court to hesitate

before answering that question in the affirmative.” Id. at

1858. “In sum, if there are sound reasons to think Congress

might doubt the efficacy or necessity of a damages remedy as

part of the system for enforcing the law and correcting a

wrong,” we “must refrain from creating the remedy in order

to respect the role of Congress in determining the nature and

extent of federal-court jurisdiction under Article III.” Id.

(emphases added). Relatedly, “if there is an alternative

remedial structure present in a certain case, that alone may

limit the power of the Judiciary to infer a new Bivens cause

of action.” Id.

This case is brimming with “sound reasons to think

Congress might doubt the efficacy or necessity of a damages

remedy.” Id. First, cross-border violence implicates foreign

RODRIGUEZ V. SWARTZ 63

relations, an area uniquely unsuitable for judicial interference.

“Matters intimately related to foreign policy and national

security are rarely proper subjects for judicial intervention.”

Haig v. Agee, 453 U.S. 280, 292 (1981). Rather, “[t]he

political branches, not the Judiciary, have the responsibility

and institutional capacity to weigh foreign-policy concerns.”

Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403 (2018). The

majority suggests that failure to imply a Bivens remedy in this

case would “threaten international relations” and impair our

relationship with Mexico, but the reality is that the judiciary

is wholly ill-equipped to broker relations between two

sovereign nations.

Indeed, the political branches have already undertaken

several initiatives to resolve cross-border concerns. For

example, the governments of the United States and Mexico

established the joint Border Violence Prevention Council, a

standing forum to address border violence issues. See

Hernandez, 885 F.3d at 820 (citing DHS, Written Testimony

for a H. Comm. on Oversight & Gov’t Reform Hearing (Sept.

9, 2015), https://www.dhs.gov/news/2015/09/09/writtentestimony-

dhs-southern-border-and-approaches-campaignjoint-

task-force-west). Moreover, the fatal cross-border

shooting incident in Hernandez led to a “serious dialogue

between the two sovereigns, with the United States refusing

Mexico’s request to extradite [Agent] Mesa but resolving to

‘work with the Mexican government within existing

mechanisms and agreements to prevent future incidents.’” Id.

(quoting DOJ, Federal Officials Close Investigation into the

Death of Sergio Hernandez-Guereca (Apr. 27, 2012),

https://www.justice.gov/opa/pr/federal-officials-closeinvestigationdeath-

sergio-hernandez-guereca). That the two

sovereigns are working to address cross-border violence

counsels hesitation against judicial interference in this area.

64 RODRIGUEZ V. SWARTZ

After all, “matters relating ‘to the conduct of foreign relations

. . . are so exclusively entrusted to the political branches of

government as to be largely immune from judicial inquiry or

interference.’” Haig, 453 U.S. at 292 (alteration in original)

(quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589

(1952)).

Second, border security is not the prerogative of the

judiciary, but of the political branches. See Abbasi, 137 S. Ct.

at 1861; see also United States v. Delgado-Garcia, 374 F.3d

1337, 1345 (D.C. Cir. 2004) (“[T]his country’s border-control

policies are of crucial importance to the national security and

foreign policy of the United States . . . .”). “The Supreme

Court has never implied a Bivens remedy in a case involving

the military, national security, or intelligence,” Doe v.

Rumsfeld, 683 F.3d 390, 394 (D.C. Cir. 2012), and it is

unlikely that the Supreme Court would entertain such an

expansion of Bivens after Abbasi. Following suit, our sister

circuits have rejected Bivens claims in the border-security

context. See Hernandez, 885 F.3d at 818–19; Vanderklok v.

United States, 868 F.3d 189, 207–09 (3d Cir. 2017)

(concluding that special factors weighed against implying a

Bivens action for damages against a TSA agent, because the

TSA is “tasked with assisting in a critical aspect of national

security—securing our nation’s airports and air traffic,” and

because “[t]he threat of damages liability could . . . increase

the probability that a TSA agent would hesitate in making

split-second decisions about suspicious passengers”).

The majority’s effort to analogize this case to “standard

law enforcement operations” does not withstand scrutiny.

Although Border Patrol agents may perform some actions that

are “analogous to domestic law enforcement” activities,

Hernandez, 885 F.3d at 819, Border Patrol agents are tasked

RODRIGUEZ V. SWARTZ 65

with carrying out fundamentally different policies than

domestic law enforcement officers. “Congress has expressly

charged the Border Patrol with ‘deter[ring] and prevent[ing]

the illegal entry of terrorists, terrorist weapons, persons, and

contraband.’” Id. (alterations in original) (quoting 6 U.S.C.

§ 211(e)(3)(B)).

Third, “Congress’ failure to provide a damages remedy”

in the context of cross-border violence cannot be ascribed to

“mere oversight” or “inadverten[ce].” Abbasi, 137 S. Ct. at

1862 (quoting Schweiker v. Chilicky, 487 U.S. 412, 423

(1988)). “[I]n any inquiry respecting the likely or probable

intent of Congress, the silence of Congress is relevant.” Id.

Here, as in Abbasi, “that silence is telling.” Id. The

majority’s decision to authorize an implied damages remedy

in this case is precisely the sort of “‘congressionally uninvited

intrusion’ [that] is ‘inappropriate’ action for the Judiciary to

take.” Id. (quoting United States v. Stanley, 483 U.S. 669,

683 (1987)).

What Congress has done in other instances is instructive.

In Abbasi, the Supreme Court observed that “[i]n an

analogous context,” Congress assumedly weighed “a number

of economic and governmental concerns” when it enacted the

Federal Tort Claims Act (FTCA) and “decid[ed] not to

substitute the Government as defendant in suits seeking

damages for constitutional violations.” Id. at 1856 (citing

28 U.S.C. § 2679(b)(2)(A)).3 Congress did not stop there. It

3 The majority cites 28 U.S.C. § 2679(b)(2) for the proposition that

the FTCA allows an exception for Bivens claims. I acknowledge that in

a proper context, as delineated by the Supreme Court in Abbasi, the Bivens

remedy may well be available. Where the majority goes astray, however,

is ignoring the import of § 2679(b)(2) with respect to the special-factors

66 RODRIGUEZ V. SWARTZ

also expressly excluded “[a]ny claim arising in a foreign

country.” 28 U.S.C. § 2680(k). In fact, “the FTCA’s foreign

country exception bars all claims based on any injury suffered

in a foreign country, regardless of where the tortious act or

omission occurred.” Sosa, 542 U.S. at 712 (emphasis added).

Thus, the majority’s decision produces an incongruous result.

On one hand, an alien injured on Mexican soil by crossborder

tortious conduct may not bring a claim for damages

under the FTCA. On the other hand, an alien injured on

Mexican soil by cross-border unconstitutional conduct may

bring an implied claim for damages under Bivens.

In a similar vein, “[t]he Torture Victim Protection Act

provides a cause of action only against foreign officials, not

U.S. officials.” Meshal, 804 F.3d at 420; see 28 U.S.C.

§ 1350. And where Congress has enacted a remedial scheme

for aliens injured abroad by certain United States employees,

Congress has authorized administrative—but not

judicial—remedies. E.g., 10 U.S.C. §§ 2734(a), 2734a(a)

(property loss, personal injury, or death incident to

noncombat activities of armed forces); 21 U.S.C. § 904 (tort

claims arising in foreign countries in connection with Drug

Enforcement Administration operations abroad); 22 U.S.C.

§ 2669-1 (tort claims arising in connection with overseas

State Department operations)). Congress has not authorized

a comparable remedy for aliens injured abroad by Border

Patrol agents.

inquiry. As the Court observed in Abbasi, the fact that Congress enacted

§ 2679(b)(2) signals that Congress, rather than the judiciary, is in the best

position to “weigh[]” various “economic and governmental concerns,” and

to carry out the “substantial responsibility to determine whether, and the

extent to which, monetary and other liabilities should be imposed upon

individual officers and employees of the Federal Government.” 137 S. Ct.

at 1856 (citing § 2679(b)(2)(A)).

RODRIGUEZ V. SWARTZ 67

I note also that the right to sue under 42 U.S.C. § 1983 is

available only to “any citizen of the United States or other

person within the jurisdiction thereof.” 42 U.S.C. § 1983.

This express limitation strongly suggests that Congress did

not intend to create a damages remedy for aliens injured

abroad as the result of federal officials’ unconstitutional

conduct—assuming arguendo that the relevant constitutional

provisions apply extraterritorially.4 To infer otherwise, as the

majority does, produces a bizarre result. A federal official

who commits a cross-border violation of an alien’s

constitutional rights must stand suit for damages—without

any congressional authorization, no less. However, a state

official who commits the same cross-border violation is

statutorily exempt from a suit for damages.

Congress has not only hesitated, but has declined, to

allow aliens injured abroad to sue federal officials for

damages. Congress, not the judiciary, is best positioned “to

consider and weigh the costs and benefits of allowing a

damages action to proceed.” Abbasi, 137 S. Ct. at 1857–58.

Congress’s silence in the area of cross-border violence is

telling, and is yet another special factor counselling hesitation

in this case.

Fourth, the cross-border nature of this case raises a

“critical” special factor—extraterritoriality. Meshal, 804 F.3d

at 425–26. It is unprecedented for Bivens to apply to aliens

4 The majority thinks it “inconceivable” that Congress contemplated

cross-border incidents involving federal officials when it enacted § 1983.

The majority misses the point. The fact that Congress limited the pool of

§ 1983 plaintiffs to “any citizen of the United States or other person within

the jurisdiction thereof,” shows that it is the role of Congress, not the

judiciary, to determine, in the first instance, who may sue for damages.

68 RODRIGUEZ V. SWARTZ

injured abroad. The very “novelty and uncertain scope of an

extraterritorial Bivens remedy counsel[s] hesitation.”

Hernandez, 885 F.3d at 822; see Alvarez v. U.S. Immigration

& Customs Enf’t, 818 F.3d 1194, 1210 (11th Cir. 2016)

(concluding that a claim that “would be doctrinally novel and

difficult to administer” is a special factor), cert. denied sub

nom. Alvarez v. Skinner, 137 S. Ct. 2321 (2017). “After all,

the presumption against extraterritoriality is a settled

principle that the Supreme Court applies even in considering

statutory remedies.” Meshal, 804 F.3d at 425 (emphasis

added) (first citing Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108, 115 (2013); then citing Morrison v. Nat’l Austl.

Bank Ltd., 561 U.S. 247, 255 (2010)). How much more

should we hesitate before implying a damages remedy

extraterritorially by judicial mandate, in the absence of

congressional action? “It would be grossly anomalous . . . to

apply Bivens extraterritorially when we would not apply an

identical statutory cause of action for constitutional torts

extraterritorially.” Id. at 430 (Kavanaugh, J., concurring).

The majority’s opinion creates exactly such a “grossly

anomalous” result.

Finally, the majority places undue weight on what is, in

its view, an insufficient alternative remedial structure. The

majority’s position finds no support in Supreme Court law.

“[T]he absence of a remedy is only significant because the

presence of one precludes a Bivens extension.” Hernandez,

885 F.3d at 821. The Bivens remedy is not a freewheeling

one—the lack of an alternative remedial structure cannot, on

its own, compel judicial creation of a damages remedy.

The Supreme Court has “rejected the claim that a Bivens

remedy should be implied simply for want of any other means

for challenging a constitutional deprivation in federal court.”

RODRIGUEZ V. SWARTZ 69

Malesko, 534 U.S. at 69. In fact, “[i]t d[oes] not matter . . .

that ‘[t]he creation of a Bivens remedy would obviously offer

the prospect of relief for injuries that must now go

unredressed.’” Id. (fourth alteration in original) (quoting

Schweiker, 487 U.S. at 425). We may not use Bivens as a

stop-gap wherever Congress has not created a remedial

scheme: Even if Rodriguez has no alternative remedy, that

alone is not dispositive, “because, ‘even in the absence of an

alternative, a Bivens remedy is a subject of judgment[.]’”

Vanderklok, 868 F.3d at 205 (alteration in original) (quoting

Wilkie v. Robbins, 551 U.S. 537, 550 (2007)); see Meshal,

804 F.3d at 425 (holding that no Bivens remedy was

available, even in the absence of an alternative remedy for the

plaintiff). And, as previously discussed, Congress has

declined to adopt a statutory remedial structure.

As previously noted, separations-of-powers principles

underlie this point. Even “if equitable remedies prove

insufficient,” and if “a damages remedy might be necessary

to redress past harm and deter future violations,” still, “the

decision to recognize a damages remedy requires an

assessment of its impact on governmental operations

systemwide.” Abbasi, 137 S. Ct. at 1858. Such concerns are

considerable and wide-ranging. They include “the burdens

on Government employees who are sued personally, as well

as the projected costs and consequences to the Government

itself when the tort and monetary liability mechanisms of the

legal system are used to bring about the proper formulation

and implementation of public policies.” Id. “These and other

considerations may make it less probable that Congress

would want the Judiciary to entertain a damages suit in a

given case.” Id.

70 RODRIGUEZ V. SWARTZ

It is true, as the majority observes, that Bivens serves, in

part, to deter individual officers. Id. at 1860. However, “the

absence of a federal remedy does not mean the absence of

deterrence” because “criminal investigations and prosecutions

are already a deterrent.” Hernandez, 885 F.3d at 821. As is

evident from the Department of Justice’s ongoing criminal

prosecution of Agent Swartz, “[t]he threat of criminal

prosecution for abusive conduct is not hollow.” Id. In any

event, “Abbasi makes clear that, when there is ‘a balance to

be struck’ between countervailing policy considerations like

deterrence and national security, ‘[t]he proper balance is one

for the Congress, not the Judiciary, to undertake.’” Id.

(alteration in original) (quoting Abbasi, 137 S. Ct. at 1863).

Applying that instruction to this case, how best to deter any

future abusive conduct by Border Patrol agents is not our

determination to make.

Contrary to the majority, I conclude that several special

factors prevent us from implying a damages remedy in this

case. The special factors in this case are weighty, and

counsel strongly against judicial interference “in the absence

of affirmative action by Congress.” Abbasi, 137 S. Ct. at

1857 (quoting Carlson, 446 U.S. at 18).

V. Conclusion

In dissenting today, I am fully mindful of the tragedy

underlying this case. I am also aware of the Supreme Court’s

warning that “[t]here are limitations . . . on the power of the

Executive under Article II of the Constitution and in the

powers authorized by congressional enactments,” and that

“national-security concerns must not become a talisman used

to ward off inconvenient claims—a ‘label’ used to ‘cover a

multitude of sins.’” Id. at 1861–62 (quoting Mitchell v.

RODRIGUEZ V. SWARTZ 71

Forsyth, 472 U.S. 511, 523 (1985)). Rather, heeding the

Court’s guidance in Abbasi, I have undertaken my analysis

with one controlling question in mind: “‘[W]ho should

decide’ whether to provide for a damages remedy, Congress

or the courts?” Id. at 1857 (quoting Bush, 462 U.S. at 380).

Here, the task of deciding whether to create a damages

remedy for Rodriguez lies squarely within the purview of

Congress, not of the judiciary.

By creating an extraterritorial Bivens remedy in this case,

the majority veers into uncharted territory, ignores Supreme

Court law, and upsets the separation of powers between the

judiciary and the political branches of government. The

majority pays only lip service to the new-context inquiry,

without any real regard for the principles set forth in Abbasi,

and concludes, remarkably, that there are no special factors

weighing against this unprecedented expansion of Bivens.

The Supreme Court has made clear its views on expanding

Bivens, and the majority has, in turn, made clear how it views

the Court’s instructions. Instead of following suit, the

majority turns back to the ancien regime now repudiated by

the Court.

Three circuit courts touch the border between the United

States and Mexico—our court, the Fifth Circuit, and the

Tenth Circuit. Today, two of the three are split. The

implications are troubling. Whereas an alien injured on

Mexican soil by a Border Patrol agent shooting from Texas

lacks recourse under Bivens, an alien injured on Mexican soil

by an agent shooting from California or Arizona may sue for

damages. This is an untenable result, and will lead to an

uneven administration of the rule of law.

72 RODRIGUEZ V. SWARTZ

Applying Supreme Court law, I would adopt the

reasoning of the Fifth Circuit. This case presents a new

Bivens context, and numerous special factors counsel against

judicial creation of an implied damages remedy in the crossborder

context.

I respectfully dissent.

Affirmed