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9th Circuit will hold off on Nogales cross-border shooting case, pending Supreme Court decision

The civil rights lawsuit by the family of a Mexican teenager killed in a 2012 cross-border shooting in Nogales remains in limbo after the 9th Circuit Court in San Francisco decided to wait for a decision from the U.S. Supreme Court on a similar case from Texas. 

In October 2012, 16-year old Jose Antonio Elena Rodriguez was walking along a street in Nogales, Sonora that runs parallel to the U.S.-Mexico when a Border Patrol agent fired through the fence and hit the boy nearly a dozen times, killing him. 

In 2014, the boy's filed suit against the federal government, and demanded the release of the agent's name, which U.S. Customs and Border Protection refused to release. However, in November 2014, Judge Raner Collins forced the agency to name Lonnie Ray Swartz as the agent, who fired through the border fence. 

The next year, Collins agreed that the family could sue Swartz and the federal government over the shooting, but that decision was appealed to the 9th Circuit Court, which agreed to hear the case. 

However, on Friday, the three-judge panel declined to submit the case for a decision because the U.S. Supreme Court agreed on Oct. 11 to hear the civil rights lawsuit from the family of Sergio Adrian Hernandez Guereca, a 15-year old boy who was shot and killed by Border Patrol Agent Jesus Mesa along the Rio Grande River in El Paso, Texas in 2010. 

The teen's family sued the United States government, including U.S. Customs and Border Protection, the Department of Homeland Security, and Mesa, alleging that the agent's actions violated the Hernandez's civil rights. However, an appellate court ruled in 2014 that while the federal agencies could not be sued, Mesa could be sued in an individual capacity. 

Judge Milan Smith opened the oral arguments by saying that the court was in an "unusual situation" because the U.S. Supreme Court was considering a similar case. Smith also noted that because the court was composed of eight justices following the death of Antonin Scalia in February, the court could split 4-4 and such a decision would not have precedence. 

"If the Supreme Court rules and gives us a definitive direction, we will know what we're doing," Smith said. 

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However, Smith along with Judges Edward Korman and A. Wallace Tashima listened to around 30 minutes of oral arguments on whether or not the Fourth Amendment should have protected Rodriguez. 

Sean Chapman, a lawyer representing Swartz, said that Rodriguez did not have substantial ties to the United States and thus, the Constitution could not be extended over the international boundary and protect a Mexican citizen. 

However, he was immediately interrupted by Miller, who asked about Rodriguez's grandmother Araceli Rodriguez, who is included in the lawsuit, along with the ACLU. 

"This this case, he had grandparents who, were in the United States and were lawful permanent residents, who has since become citizens, and by some frequency would go into Nogales and looked after him," Miller said. "What role should that play in our analysis?" 

Chapman said the emphasis should be on Jose Antonio's ties to the United States, of which he had very little. 

Tashima pointed out that while the lawsuit was focused on Jose Antonio's Fourth Amendment rights, the Fifth Amendment could apply since the "conduct of agent took place entirely in American side." 

Champan replied, noting other case law where the Supreme Court had refused to extend to cover foreign nationals outside of the United States with Constitutional protections, including a case filed by a man who argued that he was tortured by U.S. intelligence agencies. 

Along with Chapman, a lawyer for the U.S. government Henry Whitaker, said that there were no material differences between the Texas and Arizona cases and told Tashima that the Supreme Court had "expressly" rejected similar Fifth Amendment claims. 

Smith asked if the government had decided on qualified immunity, a special protection given to law enforcement officers that keeps them from being sued as individuals while performing their duties as part of the government. 

"Is there any question on the government's part that firing–I understand to be 40 shots at [Jose Antonio] by Mr. Swartz, 10 of which hit him and killed him—is absolutely clear that he had absolutely not right to do that?" Smith asked. 

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Whitaker responded by telling the judges that Swartz was currently facing an indictment and trial for the killing. Swartz is likely to face trial in February 2017. 

Lee Gelernt, a lawyer for the ACLU, noted that Rodriguez connection to the U.S. was more substantial because his grandmother Araceli Rodriguez had been a legal permanent resident of the United States, but had often taken care of Jose Antonio in Nogales, Sonora. 

Korman asked if there was any proof that she had brought Jose Antonio to the border "to give a hug or something" and Gelernt responded, saying, "We don’t think you need to want to live in the U.S. to not be shot across the border and he was also a minor and could not make independent decisions about whether he could come here or not." 

"He lived in a border town, four blocks, main throughfare that ran in Nogales," Gelernt said, noting that people in both cities routinely cross back and forth. "Demographically, the two towns are the same," Gelernt said. 

Smith asked if the surveillance or "power to monitor" people in "well into Mexico" plays any role. Gelernt said it did, but he later rejected an argument made by Tashima who asked if military power like artillery, which would reach 20 to 30 miles into either Canada or Mexico, would matter. 

Gelernt noted that military power was different than police power. 

"We certainly don’t think there’s anything impractical about asking a US Border patrol agent on duty, standing on us soil with a govnerment weapon to comply with Fourth Amendment," he said. 

Smith closed the oral arguments, and said that "We are not going to submit this case, we’re going to wait until Hernandez comes down." 

This is a very serious, very important issue for JA and his family, but also for U.S. and officer Swartz," Smith said, thanking the lawyers for their time. 

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Paul Ingram/TucsonSentinel.com

A year after the shooting death of 16-year-old Jose Antonio Elena Rodriguez in October 2012, the city of Nogales, Sonora held a protest marking the one-year anniversary, lighting candles at the spot where the boy died after being hit at least 11 times by bullets fired by a U.S. Border Patrol agent through the fence.