Congress has never provided a statutory damages remedy for the constitutional torts of federal officials,1×1. Bernard W. Bell, Reexamining Bivens After Ziglar v. Abbasi, 9 ConLawNOW 77, 77–78 (2018). but in 1971, the Supreme Court found one implied under the Constitution in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.2×2. 403 U.S. 388 (1971) (holding that a plaintiff could sue federal agents who had performed an unconstitutional search of his home). Although the case was once thought to have ushered in a new era of federal accountability,3×3. See Alexander A. Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the Individual Liability Model, 62 Stan. L. Rev. 809, 822–23 (2010). the Supreme Court has extended this remedy only twice4×4. Lower courts have also extended Bivens to address additional constitutional violations. See, e.g., Paton v. La Prade, 524 F.2d 862, 870 (3d Cir. 1975) (First Amendment); Apton v. Wilson, 506 F.2d 83, 93–94 (D.C. Cir. 1974) (Fifth Amendment); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 161–62 (D.D.C. 1976) (Sixth Amendment). : in Davis v. Passman5×5. 442 U.S. 228 (1979) (allowing a Bivens action under the Fifth Amendment against a congressman for gender discrimination). in 1979 and Carlson v. Green6×6. 446 U.S. 14 (1980) (allowing a Bivens action under the Eighth Amendment against prison officials for failure to adequately provide medical treatment to an inmate). in 1980 (together, the “Bivens trilogy”7×7. Bell, supra note 1, at 85. ). The Court has since consistently rejected Bivens claims8×8. See Nicole B. Godfrey, Holding Federal Prison Officials Accountable: The Case for Recognizing a Damages Remedy for Federal Prisoners’ Free Exercise Claims, 96 Neb. L. Rev. 924, 937–38 (2018); see also, e.g., Wilkie v. Robbins, 551 U.S. 537, 555 (2007) (harassment claim against federal department); FDIC v. Meyer, 510 U.S. 471, 473 (1994) (Fifth Amendment claim against federal agency); Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) (claim against termination of Social Security benefits); Bush v. Lucas, 462 U.S. 367, 368 (1983) (First Amendment claim against federal employer). and, in Ziglar v. Abbasi,9×9. 137 S. Ct. 1843 (2017). decisively stated a presumption against implied damages actions against federal officials, asserting that expanding Bivens is “disfavored.”10×10. Id. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Recently, in Rodriguez v. Swartz,11×11. 899 F.3d 719 (9th Cir. 2018). a divided Ninth Circuit panel extended a Bivens remedy to the mother of a Mexican boy shot and killed in Mexico by a border patrol agent standing on American soil.12×12. Id. at 748. In sustaining a supposedly “disfavored” remedy, the Ninth Circuit demonstrated the survival of Bivens as a remedial tool through a flexible interpretation of the Court’s Bivens jurisprudence and highlighted its value in redressing egregious constitutional violations.
On October 10, 2012, sixteen-year-old José Antonio Elena Rodriguez (referred to by the court as J.A.) was walking home in his neighborhood of Nogales in Mexico near the U.S.-Mexico border when he was shot and killed by Lonnie Swartz, a Customs and Border Protection (CBP) agent who was standing in Arizona.13×13. Rory Carroll, Border Patrol Agent Found Not Guilty of Murder in Mexican Teen’s 2012 Death, The Guardian (Apr. 24, 2018, 1:51 PM), https://www.theguardian.com/us-news/2018/apr/23/border-patrol-shooting-jose-antonio-elena-rodriguez-lonnie-swartz [https://perma.cc/R95R-25EU]. Rodriguez was unarmed and, according to eyewitnesses, posed no threat when Swartz fired his gun.14×14. Rodriguez v. Swartz, 111 F. Supp. 3d 1025, 1029 (D. Ariz. 2015). Unknown to Swartz at the time of the shooting, J.A. was a Mexican citizen who had never been to the United States.15×15. Rodriguez, 899 F.3d at 727. Araceli Rodriguez, J.A.’s mother, sued the border patrol agent under a Bivens remedial theory, alleging that Swartz violated J.A.’s Fourth and Fifth Amendment rights.16×16. Rodriguez, 111 F. Supp. 3d at 1028. Swartz moved to dismiss, asserting qualified immunity and arguing that J.A. lacked constitutional rights because he was a Mexican citizen killed in Mexico.17×17. Id. at 1030–31.
The U.S. District Court for the District of Arizona granted in part and denied in part Swartz’s motion.18×18. Id. at 1028 (granting only Swartz’s motion to dismiss the Fifth Amendment claim, id. at 1038). Although the Supreme Court had previously held that the Fourth Amendment did not protect a Mexican citizen lacking substantial connections to the United States from a warrantless search in Mexico,19×19. United States v. Verdugo-Urquidez, 494 U.S. 259, 261, 274–75 (1990). the district court pointed to the Supreme Court’s more recent emphasis on “practical considerations” in evaluating the extraterritorial application of the Fourth Amendment.20×20. Rodriguez, 111 F. Supp. 3d at 1035 (quoting Boumediene v. Bush, 553 U.S. 723, 759–66 (2008)). Given the border’s fluidity, J.A.’s family connections to the United States, and the border agent’s location in America, the court concluded that the Fourth Amendment protected J.A. from an unreasonable seizure of the sort alleged.21×21. Id. at 1036–38. It held that Swartz had violated this “clearly established” right and thus was not entitled to qualified immunity.22×22. Id. at 1032.
After the district court’s decision, the Supreme Court provided relevant guidance in two intervening cases. In Ziglar v. Abbasi, the Court rejected the Bivens claim of alien detainees who alleged abusive detention conditions.23×23. 137 S. Ct. 1843, 1853 (2017). Justice Kennedy characterized Bivens as an anachronism of the Court’s prior readiness to recognize implied causes of action24×24. Id. at 1856 (expressing doubt that the Court’s three Bivens cases would have been decided the same way today). and its expansion as a “‘disfavored’ judicial activity.”25×25. Id. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). He outlined a two-step test for deciding Bivens cases, designed as a fine-meshed filter: First, a court must determine whether a case is “different in a meaningful way from previous Bivens cases decided by [the] Court,”26×26. Id. at 1859. a filter catching essentially all claims that do not precisely mirror the facts of the Bivens trilogy.27×27. Justice Kennedy gave examples of qualifying differences, including “the rank of the officers involved; the constitutional right at issue; [and] the generality or specificity of the official action.” Id. at 1860. Second, a court must determine whether (1) adequate alternate remedies exist (in which case, no remedy under Bivens)28×28. Id. at 1858. and (2) whether “special factors counsel hesitation” in extending a Bivens remedy even if no other remedy exists.29×29. Id. at 1857 (quoting Carlson v. Green, 446 U.S. 14, 18 (1980)). Justice Kennedy did not expressly define the special factors but noted 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.” Id. at 1857–58. Though the Court did not proffer an explicit evaluation scheme, it sanctioned a broad interpretation of qualifying factors, including any “sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy.”30×30. Id. at 1858. Applying the test, Justice Kennedy declared that national security and immigration policy were relevant special factors and declined to extend Bivens.31×31. Id. at 1860–63.
The second case, Hernandez v. Mesa,32×32. 137 S. Ct. 2003 (2017) (per curiam). which involved the killing of a Mexican boy in Mexico by a border patrol agent in Texas,33×33. Id. at 2005. presented a close analogue to Rodriguez. The Court held that the Bivens question was “antecedent” to that of the extraterritorial application of the Fourth Amendment.34×34. Id. at 2006 (quoting Wood v. Moss, 134 S. Ct. 2056, 2066 (2014)). The Court also clarified that factors unknown to the officer at the time of the shooting, including the boy’s citizenship, were irrelevant in determining whether qualified immunity should be granted35×35. Id. at 2007. and remanded the case to the Fifth Circuit.36×36. Id. at 2008. An en banc Fifth Circuit ultimately denied a Bivens remedy, holding that the cross-border element constituted a “new context,” with national security and foreign policy presenting special factors counseling hesitation.37×37. Hernandez v. Mesa, 885 F.3d 811, 816–20 (5th Cir. 2018) (en banc).
Using both cases as guideposts, the Ninth Circuit affirmed the district court in Rodriguez.38×38. Rodriguez, 899 F.3d at 726. Writing for the panel, Judge Kleinfeld39×39. Judge Kleinfeld was joined by Judge Korman, sitting by designation from the Eastern District of New York. concluded that J.A. had a Fourth Amendment right to be free from the unreasonable use of deadly force.40×40. Rodriguez, 899 F.3d at 728–32. Citing Hernandez, he stated that J.A.’s nationality and U.S. ties were unknown to Swartz and therefore irrelevant in evaluating Swartz’s conduct.41×41. Id. at 733 (quoting Hernandez, 137 S. Ct. at 2007). The court held that Swartz’s use of force was “objectively unreasonable.”42×42. See id. at 731–32. Additionally, the court found that Swartz lacked qualified immunity because it was, at the time of the incident, “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.”43×43. Id. at 733.
The Ninth Circuit extended a Bivens remedy with noted reluctance.44×44. Id. at 748. Applying the Abbasi test, Judge Kleinfeld first determined that the case presented a new context: although, like Bivens, the case addressed an unconstitutional seizure, the seizure here occurred abroad.45×45. Id. at 738. The dissent also highlighted what it perceived as meaningful differences. Id. at 752–53 (Smith, J., dissenting) (“‘[N]o 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.’ The Court also has never upheld a Bivens claim against Border Patrol agents . . . .” (citation omitted) (quoting Meshal v. Higgenbotham, 804 F.3d 417, 424–25 (D.C. Cir. 2015))). Moving to the second step, he concluded that (1) Rodriguez lacked an adequate alternative remedy because she could not sue the U.S. government nor recover from Mexican courts.46×46. Id. at 739–44 (majority opinion) (explaining that Rodriguez could not bring a tort claim under the Federal Tort Claims Act, restitution from a parallel criminal proceeding would be inadequate, and there was no evidence that Mexican courts could grant a remedy). Analyzing the implications for national security and foreign policy, he furthermore found that (2) no special factors counseled hesitation.47×47. Id. at 744. Asserting that “national-security concerns” could not be waved like a “talisman,”48×48. Id. at 745 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017)). he stated that “no one suggests that national security involves shooting people who are just walking down a street in Mexico” and that “holding Swartz liable . . . would not meaningfully deter Border Patrol agents from performing their duties.”49×49. Id. at 745–46. Likewise, extending a Bivens remedy would not implicate foreign policy; rather, American courts’ refusal to recognize “gross violation[s]” of another country’s sovereignty would “threaten international relations.”50×50. Id. at 746. Judge Kleinfeld concluded “there [was] no reason to infer that Congress deliberately chose to withhold a remedy.”51×51. Id. at 748.
In his dissent, Judge Milan D. Smith, Jr., focused solely on whether Bivens should be extended. He claimed that it was “obvious” that only Congress possessed the authority to extend Bivens to the cross-border context because of the necessity of weighing multiple policy considerations.52×52. Id. at 749–50 (Smith, J., dissenting). Although Judge Smith argued that the case should be dismissed based on the first Abbasi prong, he also explained that special factors counseled hesitation.53×53. Id. at 753. Citing Abbasi, Judge Smith reasoned that the lack of alternative recourse was not alone persuasive because congressional silence indicated a decision not to provide a remedy.54×54. Id. at 755 (“‘Congress’ failure to provide a damages remedy’ . . . cannot be ascribed to ‘mere oversight’ . . . . The majority’s decision . . . is precisely the sort of ‘“congressionally uninvited intrusion” [that] is “inappropriate” action for the Judiciary to take.’” (alteration in original) (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017))); see also Hernandez v. Mesa, 885 F.3d 811, 821 (5th Cir. 2018) (“[T]he absence of a remedy is only significant because the presence of one precludes a Bivens extension.”). Moreover, the case was “brimming” with reasons Congress may have declined to provide a damages remedy: national security and foreign policy concerns weighed against interfering with border security agents.55×55. Rodriguez, 899 F.3d at 753 (Smith, J., dissenting). He predicted the Supreme Court would “chasten” the majority’s approach.56×56. Id. at 752.
The Supreme Court’s jurisprudence since the 1980s has suggested that Bivens would not survive beyond its immediate progeny.57×57. See, e.g., Godfrey, supra note 8, at 944–45; The Supreme Court, 2016 Term — Leading Cases, 131 Harv. L. Rev. 223, 313–22 (2017). But neither Abbasi nor Hernandez explicitly overruled Bivens. In fact, the Court implied that new Bivens remedies could be inferred58×58. See Abbasi, 137 S. Ct. at 1858 (“[I]f equitable remedies prove insufficient, a damages remedy might be necessary to redress past harm and deter future violations.”). but declined to provide concrete guidance regarding when and how, particularly with respect to the “special factors.” Predictably, circuits have thus diverged in their approaches to applying Abbasi.59×59. An alien shot on foreign soil by a CBP agent now has recourse under Bivens if the agent was standing in California or Arizona but not Texas. Rodriguez, 899 F.3d at 758 (Smith, J., dissenting). Contrary to the dissent’s suggestion, the majority in fact closely hewed to the confines of the Abbasi framework in judging the context as new and then undergoing special factors analysis.60×60. Id. at 738 (majority opinion) (arguing that “[Abbasi’s] instruction for a lower court to consider extension would have been superfluous if courts were barred from extending Bivens”); see also Abbasi, 137 S. Ct. at 1860 (noting that, because the case presented a new context, “a special factors analysis was required before allowing [the] damages suit to proceed”). The Rodriguez court simply abandoned the pretense of trying to fit new cases neatly into the confines of the Bivens trilogy. Its evaluation of the special factors was a valid exercise of the discretion left to lower courts by Abbasi. Rodriguez thus demonstrated a flexibility inherent in the Abbasi framework that may permit courts to overcome Bivens’s judicial disfavor: courts may extend Bivens remedies to new contexts as long as they carefully consider the extent to which congressional action, public policy, and the nature of the case would implicate separation of powers principles or result in judicial overreach. Openly conducting this step — seldom reached in modern Bivens jurisprudence — is vital for crafting coherent, uniform limits to the judiciary’s remedial power.
The Rodriguez opinion does depart from typical treatment of the Bivens question: since the 1980s, the Court has rejected every Bivens claim it has evaluated61×61. See Abbasi, 137 S. Ct. at 1855. and specifically has halted cases that touch on national security,62×62. See, e.g., id. at 1861 (rejecting plaintiff’s claim partly because it would “of necessity requir[e] an inquiry into sensitive issues of national security”); United States v. Verdugo-Urquidez, 494 U.S. 259, 261, 273–74 (1990) (concluding that respondent’s claim would have “significant and deleterious consequences” for national security, which may prevent a Bivens remedy). In Abbasi, Justice Kennedy opined that balancing the harm of unconstitutional conduct by federal officials and national security concerns should be left to Congress. Abbasi, 137 S. Ct. at 1861–63 (“If Bivens liability were to be imposed, high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis.” Id. at 1863.). even while recognizing the lack of alternate remedies.63×63. See, e.g., Hernandez v. Mesa, 885 F.3d 811, 815 (5th Cir. 2018) (suggesting that a plaintiff in Rodriguez’s situation could not recover except by Bivens because “[n]o federal statute authorizes a damages action by a foreign citizen injured on foreign soil by a federal law enforcement officer”). Lower courts have followed suit.64×64. See, e.g., Arar v. Ashcroft, 585 F.3d 559, 575 (2d Cir. 2009) (concluding that national security implications counseled against extending Bivens to new context of alien’s extraordinary rendition); El Badrawi v. Dep’t of Homeland Sec., 579 F. Supp. 2d 249, 263 (D. Conn. 2008) (finding that “the relationship between the federal government and its alien visitors . . . implicate[s] foreign relations concerns”); see also Andrew Kent, Are Damages Different?: Bivens and National Security, 87 S. Cal. L. Rev. 1123, 1125 (2014) (“Five of the federal circuit courts have held . . . it is inappropriate to authorize a Bivens damages remedy against federal officials in suits involving sensitive national security or foreign relations issues, even when the plaintiff had no other effective remedy for the allegedly unconstitutional conduct of the U.S. government.” (footnote omitted)). This practice has been justified by a desire not to cabin the discretion of federal officers in performing their duties and on separation of powers grounds — to preserve the exclusive domain of Congress and the Executive, to which the Constitution grants nearly plenary power over foreign relations and which establish national security policy.65×65. See Kent, supra note 64, at 1125–26 (collecting cases). The Ninth Circuit departed from this conventional view, and because other courts may weigh the special factors differently, it is possible that Rodriguez will not withstand higher review.66×66. A petition for a writ of certiorari was filed on September 7, 2018. Petition for Writ of Certiorari, Swartz v. Rodriguez, No. 18-309 (Sept. 7, 2018). But notwithstanding the longevity of the decision, the Ninth Circuit’s interpretation of Abbasi — encouraging courts to meaningfully evaluate a claim’s impact on Congress’s and the Executive’s authority before denying recourse — offers guidance for other courts. This approach is normatively beneficial because it prevents dismissal of claims that only tangentially implicate a special factor. For example, the Rodriguez court recognized that, although it dealt with border enforcement, Rodriguez’s claim did not implicate national security. Holding Swartz liable would neither impermissibly impede border agents’ discretionary authority nor challenge government policy67×67. Rodriguez, 899 F.3d at 745. because Swartz’s use of force contravened federal regulations.68×68. See 8 C.F.R. § 287.8(a)(2)(ii) (2012). The government prosecuted Swartz for second-degree murder, and he was acquitted. Scott Neuman, Border Patrol Agent Acquitted in 2012 Fatal Shooting of Mexican Teen, NPR (Apr. 24, 2018, 1:24 AM), https://n.pr/2HmAjIv [https://perma.cc/T4XV-XXJF]. The court recognized the role of CBP agents in ensuring national security but distinguished Swartz, a “rank-and-file officer,” from the “policy-making official” defendants in Abbasi.69×69. See Rodriguez, 899 F.3d at 745. While courts review excessive force claims against state police under § 1983, there is no similar evaluation for claims against Border Patrol. See Julie Hunter, Comment, Breaking Legal Ground: A Bivens Action for Noncitizens for Trans-Border Constitutional Torts Against Border Patrol Agents, 15 San Diego Int’l L.J. 163, 194–95 (2013). Moreover, unlike with the military, no unique disciplinary structure cautions against extension. Cf. Chappell v. Wallace, 462 U.S. 296, 304 (1983). In examining the specific violation in the case, the majority concluded that the specter of national security was illusory, and thus no policy goals would be hindered by extending a remedy.70×70. Rodriguez, 899 F.3d at 746 (noting the government had not “identified any policy that might be undermined”).
Rodriguez’s approach provides much-needed accountability in remedying egregious constitutional harms — those involving clearly bad faith violations of constitutional rights,71×71. Adamson v. Comm’r, 745 F.2d 541, 545 (9th Cir. 1984) (interpreting a bad faith constitutional violation as conduct “a reasonable officer should know is in violation of the Constitution”). including the unwarranted use of deadly force along the border. Damages remedies have typically addressed such law enforcement overreach.72×72. See Peter S. Margulies, Curbing Remedies for Official Wrongs: The Need for Bivens Suits in National Security Cases, 68 Case W. Res. L. Rev. 1153, 1174 (2018); see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017) (noting that “individual instances of . . . law enforcement overreach . . . are difficult to address except by [ex post] damages actions”). For example, the Bivens trilogy of cases “all involve[d] officials who were not subject to meaningful constraint” on their unconstitutional conduct.73×73. Bell, supra note 1, at 86. Bivens liability is warranted “where official action is unconstrained by either internal administrative review or judicial review.”74×74. Id. at 85. Border patrol is one such domain; agents exercise significant authority, and very few violations are reviewed officially.75×75. See Alexandra A. Botsaris, Note, Hernandez v. Mesa: Preserving the Zone of Constitutional Uncertainty at the Border, 77 Md. L. Rev. 832, 848–50 (2018) (explaining that CBP agents possess greater authority than traditional law enforcement officers, have become increasingly militarized, and undergo inadequate training and screening); Brian Bennett, Border Patrol Agents Rarely Disciplined in Abuse Cases, Records Show, L.A. Times (May 9, 2014, 9:16 PM), http://www.latimes.com/nation/la-na-border-force-20140510-story.html [https://perma.cc/8VYX-SPCR]. These conditions may contribute to abusive practices along the U.S.-Mexico border (which is policed by the United States76×76. The area is policed by approximately 16,600 U.S. Border Patrol agents. U.S. Customs & Border Protection, U.S. Border Patrol Fiscal Year Staffing Statistics (FY 1992–FY 2017)(2017), https://www.cbp.gov/document/stats/us-border-patrol-fiscal-year-staffing-statistics-fy-1992-fy-2017 [https://perma.cc/7ZM6-94NV]. ), where hundreds of incidents involving the use of force by agents take place every year.77×77. CBP Use of Force Statistics, U.S. Customs & Border Protection, https://www.cbp.gov/newsroom/stats/cbp-use-force [https://perma.cc/UG77-Z85T] (last modified Nov. 2, 2018). Studies report widespread abuse by CBP. See, e.g., Univ. Chi. Law Sch. Int’l Human Rights Clinic, ACLU San Diego & Imperial Ctys. Border Litig. Project & ACLU Border Rights, Neglect and Abuse of Unaccompanied Immigrant Children by U.S. Customs and Border Protection (May 2018), https://perma.cc/LG5C-M8LL]; Garrett M. Graff, The Green Monster: How the Border Patrol Became America’s Most Out-of-Control Law Enforcement Agency, Politico Mag. (Nov./Dec. 2014), https://www.politico.com/magazine/story/2014/10/border-patrol-the-green-monster-112220 [https://perma.cc/933T-Z6L3]. Victims who are Mexican citizens often lack civil recourse in American courts,78×78. See Hunter, supra note 69, at 171–75. a predicament that contributes to the problem of moral hazard in allowing agents to fall short of official policy.79×79. See Margulies, supra note 72, at 1176. Permitting remedies for egregious actions, especially those already in breach of federal law, would not reduce agents’ permissible discretion in the performance of their duties.80×80. See Joseph C. Alfe, Extraterritorial Constitutionalism: A Rule Proposed, 50 J. Marshall L. Rev. 787, 810 (2017). It may instead better deter federal officers from engaging in future unconstitutional conduct, one aim of Bivens.81×81. Reinert, supra note 3, at 814; cf. Bell, supra note 1, at 84 (explaining that courts have more often than not “under-defined constitutional norms”).
Not every violation of a constitutional right mandates a remedy. However, given that Bivens has not been overruled, egregious violations resulting in significant harm are exactly the narrowly tailored conditions under which the theory may still prove valuable. Rodriguez applies the Court’s heightened standards toward the Bivens question in a transparent manner that takes into account the need to deter unconstrained official action. Although its specific application may not endure, Rodriguez highlights the gravity of preserving an important tool for, at the very least, those flagrantly wronged by the conduct of federal agents.