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Family of Mexican boy slain in cross-border BP shooting files suit

Lawyer says suit is 'last resort for the family'

The family of a slain Mexican teen sued the federal government Tuesday, arguing that the U.S. Border Patrol violated the civil rights of Jose Antonio Elena Rodriguez, who was shot and killed in 2012 by border agents in Nogales.

The 16-year-old was walking along a street in Nogales, Sonora, on October 10, 2012, when he was shot approximately 10 times by U.S. Border Patrol agents. Most of the bullets struck him in the back and the boy died on the sidewalk just four blocks from his home.

The agents fired through the border fence and down a steep slope, killing the teen after they and a Nogales Police Department officer were pelted with rocks when they stopped a group attempting to smuggle drugs across the fence. 

The boy's grandmother, Taide Elena Rodriguez, family lawyer Luis Parra, and two lawyers with the American Civil Liberties Union presented their case to reporters on the steps of the federal courthouse at 405 W. Congress St. on Tuesday morning.

"Unfortunately, this is the last resort for the family," said Lee Gelernt, a lawyer with the Immigrants' Rights project at the ACLU. "The statute of limitations to file a civil case is about to run out."

Gelernt said the incident was part of "systemic problem" in Border Patrol. "We hope to hold the agents liable, not only to get justice for this family, but to deter future acts of Border Patrol. We hope to hold them accountable," Gelernt said.

Neither the FBI, which has been tasked with the investigation since 2012, nor U.S. Customs and Border Protection would comment on the lawsuit.

"It is CBP policy not to comment on current litigation," said Victor Brabble, spokesman for the agency's Tucson Sector.

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The complaint is just the first step, Gelernt said, in a process to get the names of the agent or agents who fired their weapons across the border and killed Elena Rodriguez. Thus far, the government has refused to release the names, so the case was filed as Rodriguez v. John Does 1-20. The case includes 10 people identified as agents of the U.S. Border Patrol and 10 more as officers of U.S. Customs and Border Protection.

As a first step, the family will demand the identities of the two agents at the border fence on October 10. If the government balks, a court could require the government to release the names, said James Lyall, a staff attorney with the ACLU of Arizona.

Gelernt also said that the government is likely to argue that because Elena Rodriguez was a Mexican national in Mexico, he should be denied protection under the U.S. Constitution.

"This is an extreme position with far-reaching implications and we will fight it, but we expect the government will raise that issue," Gelernt said. "But, it cannot be that a U.S. Border Patrol agent can stand on U.S. soil and with impunity, shoot through the fence and kill a young man 30 feet away." 

Gelernt argued that the government has not, to his knowledge, disciplined the agents that night, however, he said that's not enough.

"Our constitution has never been set up like that where an agency polices itself, the courts must be able to play a role and that's a bedrock principle in constitutional law," Gelernt said. "The Border Patrol has not been willing to discipline their own agents, much less prosecute their own own agents." 

A report by the American Immigration Council released in May noted that fewer than two percent of complaints made against Border Patrol agents in a three-year period were followed with significant disciplinary action.

'I'm asking the people who killed my grandson to have the courage to show their faces.'

Taide Elena Rodriguez spoke to reporters and held up two pictures. One showing her grandson smiling with other family members and the other showing his casket as it was carried in a procession, the rusty bars of the border fence that rises above Nogales, Sonora, clearly visible.

"One of these pictures represents happiness to me," she said in Spanish. "The other represents the pain the Border Patrol caused."

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"I'm asking the people who killed my grandson to have the courage to show their faces," she said.

The family is seeking civil damages, the amount remains unspecified which is typical in civil rights cases, but the suit seeks both compensatory damages and punitive damages, said Parra.

The lawsuit follows a late-June decision by the 5th Circuit Court of Appeals in New Orleans, which found that the family of Sergio Adrian Hernandez Guereca has the right to sue Border Patrol agent Jesus Mesa Jr., who fired across the border and killed the 15-year-old in Juarez, Mexico, in 2010.

Mesa claimed he was surrounded when he fired the shot across the border, hitting Hernandez Guereca in the face after he peeked around the pillar of a train trestle. However, cellphone videos made during the incident showed that Mesa's claims were largely untrue.

In a 2-1 decision, the court harshly criticized the actions of the agent.

"If ever a case could be said to present an official abuse of power so arbitrary as to shock the conscience, the Appellants have alleged it here," stated the court's ruling.

"Hernandez had retreated behind the pillars of a bridge when, unprovoked, Agent Mesa fired two gunshots in his direction. On these facts Agent Mesa had no reason to suspect that Hernandez had committed any crime or engaged in any conduct that would justify the use of any, let alone deadly, force."

The use of force by the agency has come under increasing scrutiny. 

In May, Border Patrol responded by releasing a report the agency had commissioned in 2013, which was highly critical of the use of force by agents.

The 21-page report by the Police Executive Research Forum, a nonprofit research and policy organization, cited a "lack of diligence" with regard to investigations, and a "no-harm, no-foul" approach that lead to "tacit approval of bad practices." 

The report also questioned the agency's seriousness with regard to deadly force incidents, writing: "It is not clear that CBP consistently and thoroughly reviews all use of deadly force incidents."

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

The release of the report was part of an effort to make the agency more transparent, said Commissioner R. Gil Kerlikowske at that time.

However, despite the increased transparency, the agency has yet to release details about the shooting of Elena Rodriguez, including the names of the agents who fired into Mexico that night. A similar investigation in Mexico has also not been released.

"There has been an investigation, but unfortunately, we do not know the outcome. In our view, the lack of transparency is one of the troubling things about Border Patrol," said Gelernt.

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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 announcing a civil rights lawsuit against the U.S. government for the slaying of her grandson in Nogales, Sonora.

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