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Ninth Circuit: No § 1983 Private Right Of Action Accrues From Failure To Notify Alien Prisoner’s Consulate

Ninth Circuit: No § 1983 Private Right of Action Accrues from Failure to Notify Foreign National Prisoner’s Consulate

by John E. Dannenberg

The Ninth Circuit Court of Appeals has held that a foreign national prisoner whose consulate was not notified of his detention could not sue for damages under 42 U.S.C. § 1983, because Article 36 of the Vienna Convention on Consular Relations (21 U.S.T. 77, 100-101) does not unambiguously confer on individual detainees the private right to sue under § 1983.
Mexican national Ezequiel Cornejo sued the County of San Diego, its sheriff and local municipalities on behalf of himself and a class of foreign nationals who were arrested and detained without being advised of their Article 36 right to have their consul notified. Cornejo sought damages and injunctive relief pursuant to 42 U.S.C. § 1983. The U.S. District Court (S.D. Cal.) dismissed the action on the grounds that the Convention created no private rights of action or corresponding remedies. Rather, the court held, the Convention only conferred legal rights upon member states (i.e., countries) for the sole purpose of facilitating and promoting consular functions.
The novel legal question was whether Article 36, a treaty between the United States and other sovereign nations, in and of itself created private rights of action for affected individuals. The lengthy analysis of the Ninth Circuit focused on statutory construction and anecdotal statements made during the Convention’s negotiation. Notably, while Cornejo also asserted his right of consular notification under California Penal Code § 834c, the Ninth Circuit dismissed his state law claim as not cognizable under § 1983.
The crux of the matter lay in the fact that the Vienna Convention “governs relations between individual nations and foreign consular officials.” Thus, individuals are not parties to the Convention. The Court of Appeals reviewed Congressional intent in ratifying the convention and determined that there was no unambiguous intent to create private rights by the treaty. (Also, because the 1963 treaty long preceded enactment of § 1983, the ratifiers plainly could not have envisioned enforcement via § 1983. Rather, enforcement was left to “diplomatic channels”).
In so ruling, the Ninth Circuit disagreed with an opposite holding by the Seventh Circuit in Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007). However, the Ninth Circuit also noted that its finding was consistent with that of five other circuit courts.
The leading precedent on the issue was Gonzaga University v. Doe, 536 U.S. 273 (2002), which held that § 1983 may enforce rights, but not broader or vaguer “benefits” or “interests.” Gonzaga established the concept of an “unambiguously conferred right” as the legal baseline for the applicability of § 1983 claims. And while the appellate court observed that treaties may confer enforceable individual rights, no such presumption is permitted.
Closely parsing the language of Article 36, the Ninth Circuit was unable to discern the creation of an “unambiguous conferred right” therein. Rather, “the ‘rights’ accorded under Article 36 are meant to facilitate the exercise of consular functions, an important one of which is to help nationals who run afoul of local law.” At most, that right simply enables the national and his consul to get together; it does not guarantee more.
Further, Cornejo did not assert any specific damages he suffered as a result of the lack of consular notification. Finally, the majority opinion observed that none of the other 170 signatory countries to the Convention had ever accorded private causes of action for alleged denial of consular notification rights. Accordingly, the Ninth Circuit affirmed the district court’s dismissal of Cornejo’s complaint.
A spirited dissent argued that the majority had misconstrued Gonzaga and had answered the wrong legal inquiry, and argued that § 1983 presumes a private remedy for the “rights” mentioned in the Convention. See: Cornejo v. County of San Diego, 504 F.3d 853 (9th Cir. 2007).

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Related legal case

Cornejo v. County of San Diego