Araceli Rodriguez v. Lonnie Swartz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARACELI RODRIGUEZ, individually No. 15-16410
and as the surviving mother and
personal representative of J.A., D.C. No.
Plaintiff-Appellee, 4:14-cv-02251-
RCC
v.

LONNIE SWARTZ, Agent of the U.S. OPINION
Border Patrol,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief Judge, Presiding

Argued and Submitted October 21, 2016
Submission Withdrawn October 21, 2016*
Resubmitted July 31, 2018
San Francisco, California

Filed August 7, 2018

*
We withdrew this case from submission pending the Supreme
Court’s decision in Hernandez v. Mesa, 137 S. Ct. 2003 (2017) (per
curiam), and supplemental briefing on the effect of that decision.
2 RODRIGUEZ V. SWARTZ

Before: Andrew J. Kleinfeld and Milan D. Smith, Jr.,
Circuit Judges, and Edward R. Korman,** District Judge.

Opinion by Judge Kleinfeld;
Dissent by Judge Milan D. Smith, Jr.

SUMMARY***

Civil Rights

The panel affirmed the district court’s order denying
qualified immunity to a United States Border Patrol agent
who, while standing on American soil, shot and killed J.A., a
teenage Mexican citizen who was walking down a street in
Mexico.

The panel held that assuming, as it was required to do,
that the facts as pleaded in the First Amended Complaint
were true, the agent was not entitled to qualified immunity.
The panel held that J.A. had a Fourth Amendment right to be
free from the unreasonable use of deadly force by an
American agent acting on American soil, even though the
agent’s bullets hit him in Mexico. The panel further held that
given the circumstances, that J.A. was not suspected of any
crime, was not fleeing or resisting arrest and did not pose a
threat to anyone, the use of force was unreasonable under the

**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 RODRIGUEZ V. SWARTZ 3

Fourth Amendment. The panel concluded that no reasonable
officer could have thought that he could shoot J.A. dead if, as
pleaded, J.A. was innocently walking down a street in
Mexico.

The panel held that pursuant to the Supreme Court’s
decision in Hernandez v. Mesa, 137 S. Ct. 137 2003 (2017),
it had jurisdiction, on interlocutory appeal, to decide whether
J.A.’s mother had a cause of action for damages against the
agent pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). The
panel held that despite its reluctance to extend Bivens, it
would do so here because no other adequate remedy was
available, there was no reason to infer that Congress
deliberately chose to withhold a remedy, and the asserted
special factors either did not apply or counseled in favor of
extending Bivens.

Dissenting, Judge M. Smith stated that the panel lacked
the authority to extend Bivens to the cross-border context
presented in this case. In holding to the contrary, Judge M.
Smith believed that the majority created a circuit split,
overstepped separation-of-powers principles, and disregarded
Supreme Court law.
4 RODRIGUEZ V. SWARTZ

COUNSEL

Sean Christopher Chapman (argued), Law Offices of Sean C.
Chapman P.C., Tucson, Arizona, for Defendant-Appellant.

Lee Glernt (argued) and Andre Segura, Immigrants’ Rights
Project, American Civil Liberties Union Foundation, New
York, New York; Luis F. Parra, Parra Law Offices, Nogales,
Arizona; Cecilia Wang and Cody Wofsy, Immigrants’ Rights
Project, American Civil Liberties Union Foundation, San
Francisco, California; Daniel J. Pochoda and James Duff
Lyall, ACLU Foundation of Arizona, Phoenix, Arizona;
Robert C. Montiel, Roberto Montiel Law Offices, Nogales,
Arizona; Mitra Ebadolahi, ACLU Foundation of San Diego
and Imperial Counties, San Diego, California; Arturo J.
Gonzalez and Hector Suarez, Morrison & Foerster LLP, San
Francisco, California; Marc A. Hearron, Morrison & Foerster
LLP, Washington, D.C.; for Plaintiff-Appellee.

Henry Whitaker (argued), Mark B. Stern, and Katherine
Twomey Allen, Appellate Staff; Chad A. Readler, Acting
Assistant Attorney General; Civil Division, United States
Department of Justice, Washington, D.C.; for Amicus Curiae
United States.

Jeffrey L. Bleich, Dentons US LLP, San Francisco,
California; Andrew Cath Rubenstein and Nicholas D. Fram,
Munger Tolles & Olson LLP, San Francisco, California; for
Amici Curiae Professors of Constitutional Law and Foreign
Relations Law.

Sarah P. Alexander and Mary Inman, Constantine Cannon
LLP, San Francisco, California, for Amicus Curiae Human
Rights Watch.
 RODRIGUEZ V. SWARTZ 5

Donald Francis Donovan, Carl J. Micarelli, Brandon Burkart,
and Aymeric Damien Dumoulin, Debevoise & Plimpton LLP,
New York, New York, for Amicus Curiae Government of the
United Mexican States.

Matthew E. Price and William K. Dreher, Jenner & Block
LLP, Washington, D.C., for Amici Curiae Law Professors.

Stanley Young, Covington & Burling LLP, Redwood Shores,
California, for Amicus Curiae Coalición de Derechos
Humanos, The Southern Border Communities Coalition, No
More Deaths, The National Immigration Project of the
National Lawyers Guild, The Kino Border Initiative, and the
American Immigration Council.

Ethan D. Dettmer, Joshua S. Lipshutz, Eli M. Lazarus,
Katherine C. Warren, and Courtney J. Chin, Gibson Dunn &
Crutcher LLP, San Francisco, California, for Amici Curiae
Scholars of U.S.-Mexico Border Issues.

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis,
Minnesota; Vivek Krishnamurthy, Christopher T. Bavitz, and
Andrew F. Sellars, Cyberlaw Clinic, Harvard Law School,
Cambridge, Massachusetts, for Amicus Curiae Restore the
Fourth Inc.

OPINION

KLEINFELD, Senior Circuit Judge:

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 sixteen-
year-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 split-
second 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 cross-
border 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 choice-
of-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-border-
shooting 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-southern-
border-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

APPENDIX

(First Amended Complaint, Exhibit A)
 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/written-
testimony-dhs-southern-border-and-approaches-campaign-
joint-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-close-
investigationdeath-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 cross-
border 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 cross-
border context.

I respectfully dissent.