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Judge OKs suit by family of Mexican teen fatally shot by border agent

A federal judge ruled Thursday that a Mexican teenager was entitled to civil rights under the Fourth Amendment of the U.S. Constitution when he was killed in a 2012 cross-border shooting by a U.S. Border Patrol agent standing in Nogales, Ariz. 

In the 21-page decision, U.S. District Court Judge Raner C. Collins wrote that under the facts alleged in the case, 16-year-old Jose Antonio Elena Rodriguez was covered under the Fourth Amendment when he was shot approximately 10 times while walking home from a basketball game in Nogales, Son.

The ruling means a civil rights suit filed by Rodriguez's family will continue to trial.

The government has claimed that Agent Lonnie Swartz was responding to rock-throwing that broke out in the wake of an attempt to smuggle marijuana over the fence that separates the two cities. 

The decision follows a hearing in May, in which Swartz's lawyer, Sean Chapman, argued that the lawsuit should be dismissed. 

While the circumstances surrounding the 2012 shooting in Nogales are "horrible and tragic," defense attorney Sean Chapman said an earlier decision by a federal appeals court required Collins to dismiss the case. 

Chapman's motion hinged on a April 24 decision by a full five-judge panel at the Fifth Circuit Court of Appeals that a foreign citizen outside of U.S. soil cannot be covered by the Fourth and Fifth amendments. The decision rejected an earlier court's ruling that U.S. Border Patrol Agent Jesus Mesa Jr. could be sued for shooting and killing 15-year-old Sergio Adrian Hernandez Guereca in June 2010. 

However, Collins wrote that he respectfully disagreed with the Fifth Circuit, arguing that because Swartz was inside the United States when he fired as many as 13 rounds into Mexico, the act constituted a "seizure" on American soil.

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Collins did reject a claim that Rodriguez was covered under the Fifth Amendment's guarantee of substantive due process, writing that Swartz's conduct was "more properly analyzed" under the Fourth Amendment. 

The judge also rejected a claim by Chapman that Swartz should have qualified immunity from civil lawsuits because he is a law enforcement officer. 

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

Instead, Collins wrote that 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 receive the protection of qualified immunity. 

This decision will allow the lawsuit to go forward, however, it is likely that both sides will appeal the decision and ultimately the case could reach the U.S. Supreme Court. 

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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 in July 2014, announcing a civil rights lawsuit against the U.S. government for the slaying of her grandson in Nogales, Son..

 Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.