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Fate of lawsuit over cross-border shooting death undecided

More than two years after the fatal cross-border shooting of 16-year-old Jose Antonio Elena Rodriguez in Nogales, Son., the fate of a lawsuit against the Border Patrol agent who killed him resides in the hands of a federal judge after oral arguments in court Tuesday. 

While the circumstances surrounding the 2012 shooting in Nogales are "horrible and tragic," defense attorney Sean Chapman argued that a recent decision by a federal appeals court requires U.S. District Court Judge Raner C. Collins to dismiss the case. 

Chapman's motion hinges on a April 24 decision by a full five-judge panel at the Fifth Circuit Court of Appeals that a foreign citizen outside of U.S. soil cannot be covered by the Fourth and Fifth Amendment of the U.S. Constitution. The decision rejected an earlier court's ruling that U.S. Border Patrol agent Jesus Mesa Jr. could be sued for shooting and killing 15-year-old Sergio Adrian Hernandez Guereca in June 2010. 

Last July, the family of Elena Rodriguez sued the federal government, arguing that a Border Patrol violated the 16-year-old boy’s civil rights by firing through the border fence in Nogales, hitting the boy approximately 10 times and killing him. The government has claimed that the agent was responding to rock-throwing that broke out in the wake of a report of suspected drug smuggling. 

Chapman said that the two cases were "factually almost identical," and thus the Fifth Circuit decision protects Agent Lonnie Swartz from liability because both Hernandez and Rodriguez were on Mexican soil when they died and the court could not reasonably extend the U.S. Constitution beyond the United States into Mexico. 

"We may not like it, but the law is the law," Chapman said. 

However, Lee Gelernt, an attorney with the ACLU who is representing the family, rejected this argument. 

"There's no black hole where our agents can escape liability," Gelernt said. 

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"Everything that happened, happened on U.S. soil,"  he said. "Everything, but the bullet hitting that boy." 

Gelernt argued that the Fifth Circuit decision did not require the judge to rule for the agent, saying instead that Collins could review the reasoning in the argument to see if it was persuasive. 

While the facts were similar, there were important differences that related to the case, including the fact that Hernandez was shot during an altercation near a port of entry, while Rodriguez was killed walking down a neighborhood street in Nogales, Son., after playing basketball. 

Gelernt also rejected arguments by Chapman related to cases that included prisoners of war and an enemy combatant held in a U.S. military prison in Iraq. 

During arguments Chapman maintained that Swartz has qualified immunity from civil lawsuits as a Border Patrol agent, however, he noted that the U.S. Attorney's Office is currently conducting a criminal investigation of the shooting, which is why he and not an attorney with the Department of Justice is representing the BP agent. 

Collins asked whether the agent could "know he's doing something wrong, but not know if the Constitution prohibited it?" Chapman replied that the case law must show which constitutional rights are clearly established. 

However, Gelernt said that while qualified immunity was a process designed to give law enforcement officials "room to breathe" and make decisions that "cannot possible be true here," because Swartz knew the conduct was unlawful. 

Gelernt also rejected an argument by Chapman that constitutional protections only cover people who may have a "sufficient voluntary connection" to the United States. The agent he said, didn't know the status of the person he "indiscriminately" fired at with his .40-caliber pistol as he aimed into Mexico. 

Gelernt also said that a voluntary connection with the United States was only one of several factors used by the U. S. Supreme Court to decide whether constitutional rights extend beyond U.S. borders. 

Lastly, the Ninth Circuit, where Arizona is based, has different precedences for understanding how constitutional protections apply beyond U.S. borders, he said. 

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Judge Collins stood during the case, saying that "standing, so I've heard, is good for you," and listened as the attorneys argued their cases for a little more than 30 minutes. At the conclusion, Collins said he would take the matter under advisement. 

"I have a feeling that no matter what I rule, it will not be the last we hear about this," Collins said. 

James Lyall, an attorney with the ACLU of Arizona, said he expected the case to go through the appeals court process regardless of what Collins ruled and would end up in the Ninth Circuit Court of Appeals and ultimately the Supreme Court. 

"This is going to take a long time," Lyall said. 

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Paul Ingram/TucsonSentinel.com

Standing next to her lawyer Luis Parra, Taide Elena Rodriguez holds two photos of her grandson Jose Antonio during a press conference in July 2014, announcing a civil rights lawsuit against the U.S. government for the slaying of her grandson in Nogales, Son..