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Court OKs civil rights suit by mother of Mexican teen killed by BP agent

The mother of a 16-year-old boy shot to death through the border fence in 2012 can sue the U.S. government and the Border Patrol agent who fired at him, the 9th Circuit ruled Tuesday. The case is likely to head to the U.S. Supreme Court.

A panel of the appeals court ruled 2-1 that the mother of Jose Antonio Elena Rodriguez can sue Agent Lonnie Swartz and the federal government, stating that although the boy died on the Mexican side of the border, the gun was fired on the U.S. side and is subject to U.S. court jurisdiction.

"We have a compelling interest in regulating our own government agents' conduct on our own soil," said Judge Andrew Kleinfeld, writing for the majority joined by District Judge Edward Korman.

In a 72-page opinion, the judges said Araceli Rodriguez can sue the United States, ruling that the boy had a "Fourth Amendment right to be free from the unreasonable use of deadly force by an American acting on American soil, even though the agent's bullets hit him in Mexico."

Dissenting, Judge Milan Smith Jr. said there was no authority to hear suits over actions outside the country.

Swartz was found not guilty of second-degree murder in a criminal case over Elena Rodriguez's death in April, but faces retrial on manslaughter charges after the federal jury deadlocked on those questions. That second criminal trial is set for October.

Whether the boy's family could sue the agent and government had been in limbo in the courts, while the 9th Circuit awaited the outcome of a decision over a similar Texas case.

In that case, the 5th Circuit ruled that there was no ability for the family of a Mexican boy killed in a cross-border shooting by a BP agent to sue the U.S. government and its agents.

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The conflict between the cases in two different circuits will likely be resolved by the U.S. Supreme Court.

Tuesday's ruling was welcomed by lawyers for the boy's family.

"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," said Lee Gelernt of the ACLU. "The ruling could not have come at a more important time, when this administration is seeking to further militarize the border."

Jose Antonio Elena Rodriguez

Called "Tonito" by family members, Jose Antonio Elena Rodriguez was 16 years old when he was shot and killed on October 10, 2012, and died on a sidewalk near the U.S.-Mexico border, just a few blocks from his home.

In Swartz's criminal trial, federal prosecutors said that the border agent "calmly and deliberately" walked up the fence and fired 16 rounds in 34 seconds, hitting Elena Rodriguez 10 times, including one shot that sliced through the helix of the boy's right ear, and punched through both lobes of his brain before coming to rest just beneath his scalp.

Swartz's first shot hit the teen in the back, shattering four of his vertebrae and creating shrapnel that sliced into his lungs and his aorta, the major artery from the heart. Elena Rodriguez tumbled forward, smashing his face and the backs of his hands on the concrete, but that he was still alive and "struggling" when Swartz fired 10 more rounds, killing him, said prosecutors during closing arguments.

However, defense attorneys argued that one of Swartz's first shots instantly killed the boy, and the fusillade of gunfire was from a scared agent, who believed he was engaging multiple threats when he emptied one magazine, reloaded his handgun, and fired another three rounds.

The boy died on the sidewalk on Calle Internacional just four blocks from his home, and at the bottom of an 14-foot embankment, atop which Swartz stood in the U.S. behind the 22-foot-high border fence.

While the death of Elena Rodriguez was "sad," the shooting was justified, Swartz's defense attorney said. 

Swartz, he said, was operating in a "dangerous, scary area" and that agents regularly faced rocks thrown over the fence large enough to severely injure or even kill an agent.

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During the trial, Swartz testified that he fired his weapon and killed Elena Rodriguez because heard a rock strike the steel metal plate that caps the fence, and then fellow agent Shandon Wynecoop said that he'd been hit by a rock. This was followed by what Swartz called a "thud" and someone yelled that a Nogales, Ariz., police dog had been hit with a rock. 

Swartz said he "elected to defend myself, my partner, and those officers."

If convicted of voluntary manslaughter in the second trial, Swartz faces up to 20 years in prison, and a maximum of 6 years if he is convicted of involuntary manslaughter.

Civil suit

In 2014, Elena Rodriguez's mother filed suit against the United States and unknown agents because until then, U.S. Customs and Border Protection refused to release the name of the agent involved in the incident.

As part of the case, U.S. District Judge Raner Collins ordered the government to release the agent's name, and agreed that under the facts of the case, Elena Rodriguez was covered under the 4th Amendment despite being just inside Mexico, walking along a street that parallels the U.S.-Mexico border.

Lawyers for Swartz appealed, sending the case to the 9th Circuit Court of Appeals in San Francisco.

In late October, a three-judge panel of the 9th Circuit heard arguments from the government and lawyers representing the family, including attorneys from Morrison and Foerster, and the American Civil Liberties Union.

In his dissenting opinion, Judge Smith said that the decision created a "circuit split, overstepped separation-of-powers principles, and disregarded Supreme Court law."

Smith said the decision in Hernandez v. Mesa was "instructive."

"Our sister circuit’s recent en banc decision in Hernandez v. Mesa illustrates the proper application of these principles," Smith wrote in his dissent. "The facts of Hernandez are nearly identical to the ones in this case."

Kleinfeld rejected this argument.

"We recognize that on similar facts, the Fifth Circuit reached a contrary conclusion. But its reasoning was about the Fourth Amendment generally, including warrantless searches of those crossing the border and electronic surveillance of the border itself."

This case is "about the unreasonable use of deadly force by a federal agent on American soil. Under those limited circumstances, there are no practical obstacles to extending the Fourth Amendment," he wrote.

"Applying the Constitution in this case would simply say that American officers must not shoot innocent, non-threatening people for no reason. Enforcing that rule would not unduly restrict what the United States could do either here or abroad. So under the particular circumstances of this case, J.A. had a Fourth Amendment right to be free from the objectively unreasonable use of deadly force by an American agent acting on American soil, even though Swartz's bullets hit him in Mexico," Kleinfeld wrote.

Kleinfeld also rejected the claim that Swartz had "qualified immunity" as an agent.

"Under the particular set of facts alleged in this case, Swartz is not entitled to qualified immunity. The Fourth Amendment applies here. No officer could have thought that he could shoot J.A. dead if, as pleaded, J.A. was innocently walking down the street in Mexico," he wrote.

"Based on the facts alleged in the complaint, Swartz violated the Fourth Amendment. It is inconceivable that any reasonable officer could have thought that he or she could kill J.A. for no reason. Thus, Swartz lacks qualified immunity," he wrote.

"Of course, the facts as pleaded may turn out to be unsupported. When all the facts have been exposed, the shooting may turn out to have been excusable or justified," Kleinfeld said. "There is and can be no general rule against the use of deadly force by Border Patrol agents. But, the procedural context of this case, we must take the facts as alleged in the compliant. Those allegations entitle J.A.'s mother to proceed with her case."

Sergio Adrian Hernandez Guereca

The Texas case involves the 2010 shooting of 15-year-old Sergio Adrian Hernandez Guereca, a Mexican citizen who was on the Mexico side of the border when he was shot by Border Patrol Agent Jesus Mesa Jr., who was standing in the U.S.

Court records said Hernandez and his friends were playing a game of running across a culvert between Ciudad Juarez and El Paso, tapping the fence on the U.S. side and running back when Mesa detained one of the youths. Hernandez and the others ran back to the Mexican side of the culvert and hid.

But Mesa said the youths were throwing rocks, according to court documents, and he fired. Hernandez, who was hiding behind a pillar, was shot in the face and killed.

A Department of Justice investigation said the shooting came while “smuggler attempting a border crossing hurled rocks,” and that Mesa did not “act inconsistently” with training or policy on use of force.

The Hernandez family sued, but the 5th U.S. Circuit Court of Appeals found that Sergio could not claim a violation of his Fourth Amendment rights because he “had no ‘significant voluntary connection’” to the U.S. and was “on Mexican soil at the time he was shot.” While he may have had a Fifth Amendment claim, the circuit court said Mesa enjoyed qualified immunity for his actions.

But the Supreme Court ruled that the circuit court was wrong to say Mesa had immunity, saying there was no way for Mesa to know before he fired that Hernandez was not a U.S. citizen or on U.S. soil when he was killed.

The Supreme Court also ordered the lower court to reconsider the Hernandez case in light of the high court’s ruling in Ziglar v. Abbasi, which said six foreign men detained after the 9/11 attacks could not sue government officials.

This March, the 5th Circuit ruled that the boy's family had no standing to sue, quoting a 2017 ruling from the 3rd Circuit that “Implying a private right of action in this transnational context increases the likelihood that border patrol agents will ‘hesitate in making split-second decision.’”

“Because Hernandez was a Mexican citizen with no ties to this country, and his death occurred on Mexican soil, the very existence of any ‘constitutional’ right benefiting him raises novel and disputed issues,” the appeals court judges said. “To date, the Supreme Court has refused to extend the protection of the Fourth Amendment to a foreign citizen.”

The lawyer for Hernandez's family is pursuing an appeal: “The 5th Circuit made it abundantly clear it will not be dissuaded in its view that Sergio and others who are standing in Mexico may be gunned down for any reason by anyone with a badge standing feet away in the united states—and, when this happens, the shooter, who wears a badge and has sworn to follow the constitution, will be unfettered by  the Fourth Amendment constraint on excessive force.”

“The Supreme Court must now decide if this is going to be the law of our land: That in the United States there will be no constitutional consequences when cops stand on the border and shoot across into Mexico at Mexico’s citizens, or even shoot American citizens standing in Mexico,” he said.

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TucsonSentinel.com’s Dylan Smith contributed to this report.


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

Jose Antonio Elena Rodriguez's cousins and nephews lighting candles at the boy's memorial in Nogales in October 2017.