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Supreme Court will review Texas cross-border shooting; Nogales case hangs in balance

The outcome of a lawsuit filed by the family of Jose Antonio Elena Rodriguez, a Mexican teenager killed in a 2012 cross-border shooting in Nogales, hinges on a similar court case from Texas that will be heard by the U.S. Supreme Court this fall. 

The court announced Tuesday that they will hear arguments in Hernández v. Mesa, a 2010 case from Texas that has major implications for the Arizona case.

In a short statement, the court said that the case Hernández v. Mesa will be part of the next term in October, and the justices said that they would consider whether the families can sue a “rogue federal law-enforcement officer” under a case known as Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, a 1971 ruling that allows people to sue federal agents for damages if they violate someone's Fourth or Fifth Amendment rights. 

The court’s decision to hear the case will likely affect both cases, which came during a rash of cross-border shootings along the southwestern border by Border Patrol agents. Following this period, a 2013 review by Police Executive Research Forum found that agents "put themselves in harm’s way by remaining in close proximity to the rock throwers when moving out of range was a reasonable option." 

"Too many cases do not appear to meet the test of objective reasonableness with regard to the use of deadly force," the group wrote.

In 2010, 15-year-old Sergio Adrián Hernández Güereca was playing a game with friends in the concrete culvert that separates El Paso from Juarez, running up an embankment to touch the fence on the U.S. side, and then running back into Mexico. During this game, Border Patrol Agent Jesus Mesa, Jr. arrived, detained one of the Mexican boys, and then said that rocks were thrown at him. Mesa fired his weapon, hitting Hernández when he peeked out from a concrete pillar, killing the boy. 

The government said that Mesa fired only after Hernández refused to follow commands to stop and in 2012, the Justice Department declined to bring criminal charges against the agent. 

Two years later, in October 2012, Agent Lonnie Swartz along with other agents, and Nogales police officers, were near the fence in Nogales, Ariz., when someone threw rocks from the street in Mexico, up a 20-foot embankment and over the 18-foot steel border fence. Swartz walked up to the fence and fired 16 rounds in 34 seconds, hitting 16-year-old Elena Rodriguez in the back and head.

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Unlike Mesa, Swartz faced an indictment for second-degree murder, but after two jury trials for the killing last year, he was ultimately acquitted. 

Before Swartz's indictment, the family sued Border Patrol to unseal the agent's name, and sought damages for the killing, arguing along with the ACLU that Swartz violated Elena Rodriguez's civil rights when he shot and killed the boy. 

In Tucson, a federal judge agreed, finding that Swartz violated the boy's Fourth Amendment rights. However, U.S. District Judge Raner Collins dismissed the idea that Swartz violated the boy's Fifth Amendment rights; rather Swartz's conduct was better understood regarding the Fourth Amendment because when he shot Elena Rodriguez, he "seized" the boy in Mexico, the judge found.

Meanwhile, the El Paso case went to the 5th Circuit court after a judge argued the opposite, using the Fifth Amendment and dismissed the Fourth Amendment claim. A three-judge panel agreed that the Hernández could sue the agent, and the federal government, however, the full court disagreed and the case went to the Supreme Court. 

In both cases, the courts agreed that the agents did not have qualified immunity, a set of protections given to law enforcement officers, and said that the Bivens ruling allows the family to sue because the agents were acting in the color of federal authority when they violated the boys' constitutional rights. 

In 2017, the Supreme Court heard arguments on the Hernandez case, but it returned the case back to 5th Circuit court after vacating the lower court's decision. 

Earlier this year, the justices asked the Trump administration to weigh in, and in April, the Solicitor General responded arguing that the court should take up the case, and reject the families move to sue the U.S. government and the Border Patrol agents involved. 

In a 27-page analysis, the Solicitor General Noel J. Francisco argued that if the court allowed the lawsuits to go forward, they would be "imposing a damages remedy on aliens injured abroad [that] would implicate foreign-policy considerations that are committed to the political branches." Francisco worried that such a decision would interfere with White House's ability to oversee national security, and "risk undermining the government's ability to speak with one voice in international affairs." 

Francisco also argued that such a decision would undermine Border Patrol's ability to protect the nation because agents could hesitate in "making split-second decisions." 

In his brief, Francisco wrote that "although both cases would be appropriate vehicles for considering the first question presented, the United States recommends that the Court grant certiorari in Hernández," and "hold the petition” in the case against Swartz.

The court appeared to agree, and will consider Hernandez v. Mesa in the fall.

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Paul Ingram/TucsonSentinel.com

A memorial for 16-year-old Jose Antonio Elena Rodriguez, who was killed by a Border Patrol agent in a 2012 cross-border shooting in Nogales.