Sara Gaylon

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Qualified immunity protects government agents even in the face of blatant constitutional violations.^[1] These violations may range from violated free speech to the use of excessive force which results in death.^[2] Recently, the need for a modified use of the qualified immunity defense has become apparent with the shootings of unarmed individuals at the Mexico-United States border.^[3] United States Border Patrol Agents (Agents) killed or caused the death of at least 90 people since January 2010.^[4] These actions include negligent care provided to people in their custody,^[5] serial killings,^[6] and shootings near the border.^[7] The qualified immunity doctrine protects government agents from civil liability from claims brought by citizens unless: (1) the official violated a constitutional right; and (2) that right was clearly established at the time of the alleged action.^[8] Further, as part of the second prong, the clearly established standard is based on whether a reasonable person would have known that right was clearly established at the time of the alleged action.^[9] Qualified immunity is a common law doctrine, judicially-created, and has not been codified.^[10] A codified qualified immunity test would bar a defense of qualified immunity for certain violations and allow individuals civil suits to go forward and see a form of justice.^[11]

Just one example of Agents’ seemingly unprovoked violence is the story of Medivil Perez. On February 7, 2019, Angel Manuel Mendivil Perez, an American citizen, was shot in the head as he attempted to enter Mexico from the United States.^[12] According to an official statement by the U.S. Customs and Border Protection (CBP), as an agent approached Mr. Perez’s vehicle to question him, Mr. Perez accelerated toward Mexico.^[13] The agent shot Mr. Perez in the head.^[14] Mr. Perez was airlifted to a medical center in Arizona and survived.^[15] To this day, CBP still refused to name the agent who shot Mr. Perez, why he shot him at all, or even explicitly state that Mr. Perez was shot at all.^[16] The CBP has not released any official update on the situation.^[17] However, an anonymous CBP agent told HuffPost that, “things take a while ‘because we want to get it right… We try to keep everything as evidence—and when you have evidence, you don’t want to make it public.’”^[18]

As Mr. Perez’s story shows, a citizen’s ability to enforce their rights by filing civil actions against Agents becomes even more critical when government agencies refuse accountability. Without accountability, agencies—and by extension, the entirety of the United States government—are free to make decisions without any ramifications. Thus, if courts apply qualified immunity, it will prevent citizens from presenting their case to the courts and seeking legal redress for their violated rights.

Qualified immunity identifies that public officials need to be held accountable for wielding power irresponsibly, but it also recognizes that officials need to be protected when they perform their duties reasonably.^[19] But should qualified immunity shield Agents from civil liability when their actions cause citizens’ deaths? Recently, in Rodriguez v. Swartz, the Ninth Circuit took a broad look at the doctrine of qualified immunity and answered that question in the negative.^[20]

This Note discusses the application of the doctrine of qualified immunity to United States’ Border Patrol Agents in light of the Rodriguez v. Swartz decision. Part I introduces the doctrine of qualified immunity, including its origin and use in case law and its requirements, looks specifically at Rodriguez v. Swartz, laying out the facts and analysis of the case, and how the court used the facts to conclude that the Agent was not entitled to qualified immunity.^[21] Part II argues that the Rodriguez decision’s application of qualified immunity satisfies the United States Supreme Court’s requirements for qualified immunity.^[22] Part III advocates for codifying a federal qualified immunity test, and proposes statute language.^[23] Part IV addresses what the proposed statute means when properly interpreted—specifically that the statute will make civil claims easier in excessive force cases.^[24] Lastly, Part V considers the implications a qualified immunity statute will have—especially the impact on law enforcement’s need to fulfill their duties.^[25]

 

^[1] Evan Bernick, It’s Time to Limit Qualified Immunity, Geo. J. L. & Pub. Pol’y Legal Blog (Sept. 17, 2018), https://www.law.georgetown.edu/public-policy-journal/blog/its-time-to-limit-qualified-immunity/.

^[2] John C. Williams, Qualifying Qualified Immunity, 65 Vand. L. Rev. 1295, 1299 (2012).

^[3] Daniella Silva, Border Patrol Agent Accused of Serial Killings Wanted to ‘Commit Suicide by Cop,’ Officials Say, NBC News (Sept. 17, 2018), https://www.nbcnews.com/news/us-news/border-patrol-agent-accused-serial-killings-wanted-commit-suicide-cop-n910456.; See, e.g., Rodriguez v. Swartz, 899 F.3d 719 (9th Cir. 2018) & Hernandez v. Mesa, 137 S.Ct. 2003, 2007 (2017) (showing two recent cases of unarmed Mexican nationals at the United States-Mexico border).

^[4] Deaths by Border Patrol Since 2010, S. Border Communities Coalition (July 8, 2019), https://www.southernborder.org/deaths_by_border_patrol.

^[5] Dianne Gallagher, Geneva Sands, & Kate Sullivan, Third Undocumented Migrant in Three Days Dies After Being Apprehended at US-Mexico Border, CNN (June 3, 2019), https://www.cnn.com/2019/06/03/politics/third-death-at-border/index.html;  Silva, supra note 3.

^[6] Silva, supra note 3.

^[7] M.L. Nestel, Border Patrol Agent Kills Woman Attempting to Cross Texas Border, ABC News (May 26, 2018), https://abcnews.go.com/Politics/border-patrol-agent-kills-woman-attempting-cross-texas/story?id=55457805.

^[8] Hernandez v. Mesa, 137 S.Ct. 2003, 2007 (2017).

^[9] Id.

^[10] James Flynn Mozingo, The Confounding Prong of the Harlow v. Fitzgerald Qualified Immunity Test: When is a Constitutional Right Clearly Established?, 17 Am. J. Trial Advoc. 797, 799 (1994).

^[11] See infra Part V.A.

^[12] Dana Liebelson, A CBP Officer Shot a 21-Year-Old American in the Head. 6 Months Later, CBP Won’t Say Why, HuffPost (Aug. 19, 2019), https://www.huffpost.com/entry/cbp-shooting-unarmed-vehicles_n_5d24cd0ae4b0583e4828365f. 

^[13] Id.

^[14] Id.. He was in such a critical state that the town’s mayor originally reported to the local media that he had died. Id.

^[15] Id.

^[16] Id.

^[17] Id.

^[18] Id.

^[19] Pearson v. Callahan, 555 U.S. 223, 231 (2009).

^[20] Rodriguez v. Swartz, 899 F.3d 719, 728 (9th Cir. 2018).

^[21] See infra Part I.

^[22] See infra Part II.

^[23] See infra Part III.

^[24] See infra Part IV.

^[25] See infra Part V.