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Posted May 13, 2015, 10:58 am

Paul Ingram TucsonSentinel.com

A federal judge in Tucson will hear arguments this month in response to a motion by the government to dismiss a lawsuit filed against a U.S. Border Patrol agent over the 2012 cross-border shooting death of a Mexican teenager.

Last July, the family of Jose Antonio Elena Rodriguez sued the federal government, arguing that the Border Patrol violated the 16-year-old boy’s civil rights when one agent fired through the border fence in Nogales and shot Rodriguez approximately 10 times, killing him.  The government has claimed that the agent was responding to rock-throwing that broke out in the wake of a report of suspected drug smuggling. 

In September, U.S. District Court Judge Raner C. Collins agreed to let the lawsuit go forward and in November, he ordered the release of the name of the agent, Lonnie Swartz, who shot Rodriguez in 2012. 

The government had originally asked that the agent's name be kept under seal, however, the family and lawyers with the American Civil Liberties Union demanded the release of his name. 

However, the family’s constitutional claims could be in doubt after a decision by the Fifth Circuit Court in New Orleans.

In April, the court ruled that another U.S. Border Patrol agent who also killed a teenager during a cross-border shooting  in Texas could not be sued in U.S. courts by the Mexican teen’s family. 

The court reversed an earlier court’s decision that Border Patrol agent Jesus Mesa Jr. could be sued for shooting and killing 15-year-old Sergio Adrian Hernandez Guereca in June 2010. 

On April 29, Sean Chapman, attorney for the agent in the Nogales shooting, submitted a motion based on the Fifth Circuit Court’s decision. Chapman wrote that because Rodriguez was in Mexico and the Border Patrol agent was on the U.S. side, the lawsuit should be dismissed because Rodriguez's family lacks constitutional claims. 

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Lawyers will present their arguments on May 26 at the Evo A. DeConcini United States Courthouse, 405 W. Congress St.