Court allows Mexican family to sue Border Patrol agent over cross-border shooting
A federal appeals court ruled Tuesday that a Mexican mother can sue a Border Patrol agent over a cross-border shooting that killed her son.
The ruling from the 9th Circuit Court of Appeals involved a civil case from the family of Jose Antonio Elena Rodríguez, a 16-year-old Mexican citizen who was fatally shot in 2012 across the border by U.S. Border Patrol Agent Lonnie Swartz.
At issue was whether Border Patrol agents could be held liable for violating the constitutional rights of foreign citizens on foreign soil, while themselves operating on U.S. soil.
“It is inconceivable that any reasonable officer could have thought that he or she could kill [Rodríguez] for no reason. Thus, Swartz lacks qualified immunity,” the court wrote in its opinion.
The case was complicated by a prior ruling where American agents operating in Mexico obtained evidence without a warrant. That evidence was allowed in court.
In that case, the 5th Circuit Court of Appeals ruled that American agents conducting a search on foreign soil without a warrant did not violate the constitutional rights of non-U.S. citizens.
“But unlike the American agents … who acted on Mexican soil, Swartz acted on American soil,” the 9th Circuit ruling said.
The Rodríguez family’s lawsuit alleged that Swartz shot Rodríguez through the border fence that divides Nogales, Ariz., from Nogales, Sonora, on the Mexican side.
Rodríguez’s autopsy revealed he was shot 10 times and a majority of the bullets hit him from behind.
Swartz fired 16 times across the border in response to reports of individuals throwing rocks, hitting Rodríguez twice in the head and eight times in the body.
The street on which Rodríguez was shot runs parallel to the border. At that spot, the U.S. side is on higher ground, and has a border fence that rises nearly 50 feet above street level.
Rodríguez was a Mexican citizen who had never been to the United States.
Swartz was originally acquitted of second-degree murder in April, but will face a second trial for voluntary and involuntary manslaughter in October, according to the Arizona Daily Star.
Rodríguez’s mother and the American Civil Liberties Union (ACLU) filed a civil lawsuit to hold Swartz liable for the shooting.
The ACLU on Tuesday hailed the appeals court decision allowing their suit to go forward.
“The court made clear that the Constitution does not stop at the border and that agents should not have constitutional immunity to fatally shoot Mexican teenagers on the other side of the border fence. The ruling could not have come at a more important time, when this administration is seeking to further militarize the border,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project who argued the appeal.
The 9th Circuit Court of Appeals did not make a ruling on the facts of the case, focusing on whether American agents, given the alleged facts, could violate a person’s constitutional rights.
The Department of Homeland Security, the agency that oversees the Border Patrol, did not return a request for comment.