Cornejo v. County of San Diego

On Monday, a Ninth Circuit panel decided Cornejo v. County of San Diego. The plaintiff sought damages and injunctive relief against the defendants on behalf of a class of foreign nationals who were arrested and detained without being advised of the rights provided for by Article 36 of the Vienna Convention on Consular Relations. The question was "whether Article 36 of the Vienna Convention on Consular Relations creates judicially enforceable rights that may be vindicated in an action brought under 42 U.S.C. § 1983." Judge Rymer, writing for herself and Judge Alarcón, concluded:

. . . Article 36 does not create judicially enforceable rights. Article 36 confers legal rights and obligations on States in order to facilitate and promote consular functions. Consular functions include protecting the interests of detained nationals, and for that purpose detainees have the right (if they want) for the consular post to be notified of their situation. In this sense, detained foreign nationals benefit from Article 36's provisions. But the right to protect nationals belongs to States party to the Convention; no private right is unambiguously conferred on individual detainees such that they may pursue it through § 1983.

Judge Nelson, in dissent, disagreed:

[A] remedy under § 1983 is presumptively available once Cornejo demonstrates that the ratifying Congress of the Vienna Convention had an intent to confer individual rights in Article 36(1)(b). Therefore, I respectfully dissent because it is clear that Article 36(1)(b) does confer individual rights and the presumption of a remedy under § 1983 has not been overcome.

The majority reached the opposite result from that of the Seventh Circuit in Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007), decided in March of this year.