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Trump admin asks Supreme Court to rule families can't sue in cross-border shooting cases

Following a request from the U.S. Supreme Court, lawyers for the Trump administration argued that the families of two boys shot and killed in cross-border shootings — including one in Nogales — by U.S. Border Patrol agents should not be able to sue in U.S. courts. 

The pair of cross-border shootings occurred under similar circumstances in a two-year period, but were appealed to the Supreme Court with divergent decisions. The justices ordered Solicitor General Noel J. Francisco to submit a brief explaining the Trump administration's views on the two cases, and whether or not the families of two teenaged boys had the standing to sue the U.S. government and the border agents who shot from U.S. soil and killed the boys in Mexico.

In his 27-page analysis, Francisco said that "imposing a damages remedy on aliens injured abroad would implicate foreign-policy considerations that are committed to the political branches," and 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." 

Franciso 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." 

The Solicitor General argued that the court should take up Hernández v. Mesa next term and affirm a 5th Circuit Court decision that blocked the family's lawsuit, and by consequence, reach a decision on Rodriguez v. Swartz, a case that was heard in a Tucson court before going to the 9th Circuit Court. 

If the Supreme Court agrees, it would rule soon on two cases that 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, 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 Jose Antonio Elena Rodrigeuz, 16, in the back and head.

Swartz faced two jury trials for the killing last year, but was ultimately acquitted. 

Before Swartz was indicted, 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, arguing that Swartz violated the boy's Fourth Amendment rights, but dismissed a claim on the boy's Fifth Amendment rights, arguing that Swartz's conduct was better understood under the Fourth Amendment because he shot Elena Rodriguez he "seized" the boy in Mexico. 

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 Bivens, a court case from the 1970s, could allow the family to sue because the agents were acting in the color fo federal authority when they violated the boys' constitutional rights. 

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 Swartz." 

Francisco argument refers to the 1971 case, Bivens v. Six Unknown Named Agents, which allows people to sue for damages if federal officers are found to have violate the Fourth Amendment's stricture on searches and seizures. 

"The former case cleanly presents the threshold Bivens issue," and the Fifth Circuit's decision "considered whether a Bivens remedy is available for both Fourth and Fifth Amendment claims," he wrote. "By contrast, the Ninth Circuit addressed Bivens only in the Fourth Amendment context, and its decision presents an additional complex question about qualified immunity, including the scope of the Fourth Amendment." 

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Paul Ingram/TucsonSentinel.com

Family members of Jose Antonio Elena Rodriguez hold a vigil on the spot where he was killed in Nogales, Sonora.