Just when you thought the stolen sovereignty and erasing of our borders by the Ninth Circuit couldn’t get worse, well, another court opinion comes out.
It’s bad enough that foreign nationals can invade our border, make demands on our agents, demand welfare, demand schooling, be counted in the Census, and claim citizenship for their children. Now foreign nationals can sue our border agents for doing their jobs and protecting us from the perils they foist upon our brave men and women.
In another case of a GOP-appointed judge siding with the most radical legal theories of the Left, Ninth Circuit Judge Andrew Kleinfeld ruled earlier last week that border agent Lonnie Swartz is not covered by qualified immunity, thereby allowing a Mexican woman to sue him for shooting her teenage son during border violence in 2012. In this decision, the court begins to control our foreign policy and military policy and paves the way for family members of Mexicans involved in drug cartels and cross-border violence to shut down our border security even further.
In October 2012, Agent Lonnie Swartz shot a number of rounds through a border fence in Nogales, an Arizona-Mexico border town, and killed 16-year-old Jose Antonio Elena Rodríguez, who was part of a group throwing rocks at border agents after they confronted individuals climbing a fence and smuggling drugs. Swartz was prosecuted under regular criminal law and acquitted earlier this year by a jury on charges of second-degree murder. The jury was deadlocked on charges of involuntary manslaughter, and there may be a new trial.
Whether Swartz should have used lethal force in this case is tough to judge based on the details available, but it underscores just how dangerous our border is and the failure of our government to deal with the problems on the Mexican side of the border.
As Breitbart Texas has reported over the years, when agents are isolated and surrounded by rock-throwers, it can’t categorically be dismissed as “kids throwing pebbles.” And as the local border patrol union pointed out, the deceased in this case doesn’t exactly appear to be a nonviolent Boy Scout. Let’s not forget that the gang life at our border in which some of these teens are reared is every bit as violent as the worst acts of ISIS.
Whether Swartz rightfully or wrongfully pulled the trigger is a question that our military and police often face under the duress of chaotic circumstances. Those delicate cases need to be dealt with by the agency leaders, as guided by Congress. When appropriate, they can bring charges against bad actors, as has been the case in many instances. This case is no different.
Yet now we have the Ninth Circuit granting standing to the Mexican family to sue for damages under a civil rights suit. Such a lawsuit should be rejected. Criminal charges or other disciplinary actions when wrongful use of force is suspected should be left up to our own government. Of course, foreign governments can always request extradition of an American they feel murdered one of their own, but that is an issue of diplomacy.
As always, the Ninth Circuit built its case on a radical Warren-era ruling and then expanded it to the Nth degree. In the landmark case Bivens v. Six Unknown Named Agents (1971), Justice Brennan and the entire cabal of activists of that era created a private cause of action to sue against violations of unreasonable search and seizure, even when no harm was done. While none of us want law enforcement to violate the Fourth Amendment, this decision opened the floodgates for frivolous lawsuits that encumber law enforcement. Absent an explicit grant of standing from Congress through statute, it’s absurd to say the Constitution on its own grants the courts such authority for this right of action.
Be it as it may, nobody ever thought to apply Bivens to foreign nationals in Mexico or elsewhere suing border patrol or military personnel protecting Americans in a judgment call of whether to pull the trigger. Yet Kleinfeld, joined in his opinion by district Judge Edward Korman and over the dissent of circuit Judge Milan Smith, expanded this cause of action to foreign nationals. The Supreme Court has explicitly said such cause of action cannot interfere with foreign policy and has even denied all recent attempts to expand the scope of Bivens among domestic plaintiffs. Kleinman conceded that “Border Patrol agents protect the United States from unlawful entries and terrorist threats,” which are activities that “help guarantee our national security,” but then gutted his lip service by presumptuously speculating that “holding Swartz liable for this constitutional violation would not meaningfully deter Border Patrol agents from performing their duties.”
Yes, we now have judges determining national security policy, the same way this circuit seized the power to determine immigration policy from the Middle East and to determine what degree of national security concerns such immigration poses.
What happened to American sovereignty? The judge snidely remarked that “the only foreign policy concern that we can glean from the briefs is the need to avoid violating Mexican sovereignty.” He then cited an amicus brief filed by the government of Mexico!
As the dissenting judge, Milan Smith, noted, the Fifth Circuit already dealt with an almost identical case of a border agent shooting a Mexican across the border and came to the obvious conclusion that Fourth Amendment rights can’t be granted to Mexicans just because the border agent was shooting from our soil. The circuit split will likely trigger a Supreme Court ruling in favor of Agent Swartz. But as we’ve seen all too often, particularly on this issue, it won’t preclude the Left and the government of Mexico from coming back for more at the Ninth Circuit.
Moreover, this sends the wrong message to the overwhelmingly competent and just agents in the field that we are no longer a sovereign nation. Andrew Arthur, a former immigration judge who currently works at the Center for Immigration Studies, told me he was concerned that “the court has dangerously intruded into the political branches’ authority over foreign relations and border security. As the dissent states: ‘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.’”
It’s sad that Americans have no voice against the plunder of our country, the stolen sovereignty, and the fleecing of our communities, schools, and welfare system because of illegal immigration and border violence. We have no path to suing the Mexican government for allowing the drug cartels to poison tens of thousands of people per year, kill hundreds by drunk driving, and flood our schools and communities with MS-13. As Dale Wilcox, executive director and general counsel for the Immigration Reform Law Institute, lamented, this decision is part of a broader trend “to increasingly grant constitutional rights to non-citizens.” “The likely outcome of this effort will be less freedom and security for actual American citizens, whose voices are largely ignored on these issues.”
It’s also tragic from the perspective of the Mexican people. Why is the Mexican government not concerned about the 30,000 people murdered, often butchered and tortured, by the Zetas, Sinaloa, and Gulfo cartels controlling the region? We wouldn’t need border agents if not for them. What about all the young boys whose limbs are cut off by the cartels because we refuse to properly secure our border, clean out the cartels, and end the amnesty agenda that empowers and enriches the cartels?
We are rapidly approaching the time when we are strangers in our own land, to such a degree that our Art. IV Sec. 4 guarantee of protection against invasion is sacrificed in order to give constitutional protections to people outside our country.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.