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Supreme Court decision on Texas cross-border shooting could stall suit vs. BP agent in Az

The U.S. Supreme Court will likely issue a decision Monday on a case from Texas that will profoundly affect a civil lawsuit launched by the family of a Mexican teenager killed in a cross-border shooting in Nogales. 

In 2014, the family of Jose Antonio Elena Rodriguez filed suit against the federal government, arguing that Border Patrol agent Lonnie Ray Swartz violated the boy's civil rights when he fired through the border fence in Nogales, Arizona, killing the 16-year-old on a street in Nogales, Sonora. 

The lawsuit also demanded the release of the agent's name, but U.S. officials refused until they were forced to do so under an order by U.S. District Judge Raner Collins.  

Nearly a year later, Collins ruled that Jose Antonio's family could sue, arguing in 21-page decision that the boy was covered under the Fourth Amendment when he was shot approximately 10 times. 

In his decision, Collins ruled that the agent could not use qualified immunity, a legal defense for police officers, because Swartz knew the limits on using deadly force against U.S. citizens and non-citizens in the United States, but did not follow those same rules when firing into Mexico. As Swartz did not know that the person he was shooting at was a U.S. citizen or not, he should not receive the protection of qualified immunity. 

"Qualified immunity is not merely a defense," he wrote. "Rather, it provides a sweeping protection from entirety of the litigation process." 

Swartz's legal team immediately appealed. 

While the Rodriguez case moved through the federal court in Tucson, a case with strikingly similar circumstances moved through the federal court system in Texas and then to Fifth Circuit Court of Appeals before ultimately landing in the U.S. Supreme Court. 

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On Monday, the high court may decide the fate of Hernández v. Mesa, a lawsuit launched by the parents of Sergio Adrian Hernandez Guereca, a 15-year-old boy who was shot and killed by Border Patrol Agent Jesus Mesa along the Rio Grande River in El Paso in 2010. 

The case is one of six remaining on the court's docket following oral arguments in October. 

The boy's father Jesus Hernández, and his mother Maria Guadalupe Guereca Bentacour, contend that their son was playing a game in the culvert between El Paso and Juarez when Mesa shot the boy in the head. However, Agent Mesa argued that he fired his weapon because the boy, along with others, threw rocks at him while ignoring his commands to stop

A Department of Justice investigation agreed and refused to file charges against Mesa, concluding the shooting "took place while alien smugglers, including Hernández, unsuccessfully attempted an illegal border crossing and began to hurl rocks from close range at Agent Mesa while he was attempting to detain a suspect."

Nonetheless, the teen's family sued the United States government, including U.S. Customs and Border Protection, the Department of Homeland Security, and Mesa, alleging that the agent's actions violated the Hernández's civil rights. However, an appellate court ruled in 2014 that while the federal agencies could not be sued, Mesa could be sued in an individual capacity. 

The justices will not decide whether or not Mesa the shooting was justified, but will instead decide whether or not the Hernández family can sue Mesa over the shooting and its consequences. The case is likely to turn on the court's understanding of Boumediene v. Bush, a 2008 case in which the court had to decide if the U.S. Constitution extends beyond U.S. territory, and a 1990 case, United States v. Verdugo-Urquidez, which considered the Fourth Amendment's prohibition on the unjustified use of deadly force. 

The court also directed officials to present arguments on whether Mesa may be protected by qualified immunity, which shields law enforcement officers from lawsuits for acts committed while on duty. 

This decision will affect the civil lawsuit filed by the Rodriguez family in part because a three-judge panel of the 9th Circuit Court of Appeals agreed in October to hold off on making their own decision until the U.S. Supreme Court rules on Hernández v. Mesa. 

During a hearing, Judge Milan Smith opened the oral arguments by saying that the court was in an "unusual situation" because the U.S. Supreme Court was considering a similar case. Smith also noted that because the court was composed of eight justices following the death of Antonin Scalia in February, the court could split 4-4 and such a decision would not have precedence. 

"If the Supreme Court rules and gives us a definitive direction, we will know what we're doing," Smith said. 

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However, Smith along with Judges Edward Korman and A. Wallace Tashima listened to around 30 minutes of oral arguments on whether or not the Fourth Amendment should have protected Rodriguez. 

Sean Chapman, a lawyer representing Swartz, said that Rodriguez did not have substantial ties to the United States and thus, the Constitution could not be extended over the international boundary and protect a Mexican citizen. 

However, he was immediately interrupted by Miller, who asked about Rodriguez's grandmother Taide Rodriguez, who is included in the lawsuit, along with the ACLU. 

"This case, he had grandparents who, were in the United States and were lawful permanent residents, who has since become citizens, and by some frequency would go into Nogales and looked after him," Miller said. "What role should that play in our analysis?" 

Chapman said the emphasis should be on Jose Antonio's ties to the United States, of which he had very little. 

Tashima pointed out that while the lawsuit was focused on Jose Antonio's Fourth Amendment rights, the Fifth Amendment could apply since the "conduct of agent took place entirely in American side." 

Champan replied, noting other case law where the Supreme Court had refused to extend to cover foreign nationals outside of the United States with constitutional protections, including a case filed by a man who argued that he was tortured by U.S. intelligence agencies. 

Along with Chapman, a lawyer for the U.S. government, Henry Whitaker, said that there were no material differences between the Texas and Arizona cases and told Tashima that the Supreme Court had "expressly" rejected similar Fifth Amendment claims. 

Smith asked if the government had decided on qualified immunity, a special protection given to law enforcement officers that keeps them from being sued as individuals while performing their duties as part of the government. 

Whitaker responded by telling the judges that Swartz was currently facing an indictment and trial for the killing. Swartz is likely to face trial in October 2017 after a half-dozen delays.

Lee Gelernt, a lawyer for the ACLU, noted that Rodriguez connection to the U.S. was more substantial because his grandmother Araceli Rodriguez had been a legal permanent resident of the United States, but had often taken care of Jose Antonio in Nogales, Sonora. 

Korman asked if there was any proof that she had brought Jose Antonio to the border "to give a hug or something" and Gelernt responded, saying, "We don’t think you need to want to live in the U.S. to not be shot across the border and he was also a minor and could not make independent decisions about whether he could come here or not." 

"He lived in a border town, four blocks, main throughfare that ran in Nogales," Gelernt said, noting that people in both cities routinely cross back and forth. "Demographically, the two towns are the same," Gelernt said. 

Smith asked if the surveillance or "power to monitor" people in "well into Mexico" plays any role. Gelernt said it did, but he later rejected an argument made by Tashima who asked if military power like artillery, which would reach 20 to 30 miles into either Canada or Mexico, would matter. 

Gelernt noted that military power was different than police power. 

"We certainly don’t think there’s anything impractical about asking a U.S. Border Patrol agent on duty, standing on us soil with a government weapon, to comply with Fourth Amendment," he said. 

Correction: An earlier version of this story incorrectly reported the first name of Taide Rodriguez, grandmother of Jose Antonio Elena Rodriguez.


TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Paul Ingram/TucsonSentinel.com

A photograph of Jose Antonio Elena Rodriguez during a vigil held for the boy in Nogales, Sonora, in April.

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