Border Patrol Agents Sued for Cross-Border Killing

TUCSON (CN) - Border Patrol agents shot a Mexican teenager 10 times through a border fence, killing him without cause as he walked home, the boy's mother claims in a federal lawsuit.

Jose Antonio Elena Rodriguez, 16, died at the scene on the night of Oct. 10, 2012.

He collapsed in a pool of blood on Calle Internacional, a street in Nogales, Sonora that runs parallel to the border fence.

Agents fired multiple rounds through the fence for reasons unknown, according to a lawsuit filed Tuesday in Tucson by his mother, Araceli Rodriguez.

"At approximately 11:30 p.m., one or more U.S. Border Patrol agents and/or CBP officers standing on the U.S. side of the fence opened fire," the lawsuit states. "An autopsy report shows that Jose Antonio was fatally hit with ten bullets. At the time of the shooting, the agents and/or officers were not under threat by Jose Antonio or anyone else standing near him - much less in immediate danger of deadly or serious bodily harm. Jose Antonio's death was senseless and unjustified."

Araceli Rodriguez, a Mexican citizen, says that Jose Antonio was not trying to hide and did not pose a threat to the agents on the other side of the fence. He was merely returning home through his neighborhood.

"He was doing nothing but peacefully walking down the street by himself when he was gunned down," the lawsuit states. "He was not committing a crime, nor was he throwing rocks, using a weapon, or in any way threatening U.S. Border Patrol agents or anyone else. Furthermore, no one near Jose Antonio at the time of the shooting was throwing rocks or threatening U.S. Border Patrol agents in any manner (or threatening anyone else)." (Parentheses in complaint.)

ACLU attorney Lee Gelernt called the lawsuit a "last resort" during a press conference in Tucson on Tuesday.

"The U.S. government has not taken any action against the agents who killed Jose Antonio almost two years ago," Gelernt said. "What we hope to get out of this lawsuit is justice for the family, but to begin with we hope to get the names of the agents who were responsible. The government has refused to even release the names of the agent or agents who are responsible for killing Jose Antonio."

Gelernt said he will seek a court order to find out the names, possibly as soon as next week.

"We see absolutely no justification for the government refusing to release the names and to defend this case on the merits," he said.

Gelernt said it will be difficult to hold agents responsible for killing a Mexican citizen from the United States, and called the lawsuit a possible "test precedent for whether the U.S. Constitution applies abroad."

"We anticipate that the government will not want to defend this case on the merits and will seek to have it thrown out by claiming that the United States Constitution does not apply to Mexican nationals on foreign soil," he said. "That is an extraordinary position with far-reaching implications, and we do not think it is correct.

"It simply cannot be that a U.S. Border Patrol agent can stand on U.S. soil with impunity and shoot through the fence, and kill a young man 30 feet away, and then claim that he has no right to our Constitution."

One possible counterargument to the anticipated government response is that the Border Patrol effectively controls the border region by force, the lawsuit states.

"U.S. Border Patrol agents make seizures on the Mexican side of the fence," according to the complaint. "U.S. Bureau of Customs and Border Protection officials are authorized to be on Mexican soil to conduct pre-inspection of those seeking admission to the United States. U.S. Border Patrol helicopters fly in Mexican airspace near the border and swoop down on individuals, inundating those individuals with dust and debris. Thus, as the Chief of the U.S. Border Patrol has acknowledged, U.S. border security policy 'extends [the nation's] zone of security outward, ensuring that our physical border is not the first or last line of defense, but one of many.'

"By shooting at individuals on the Mexican side, and using weapons and devices with a range extending to the Mexican side of the border area, the United States, through the Border Patrol, controls the area immediately adjacent to the international border fence on the Mexican side. This control extended to the street, Calle Internacional, where Jose Antonio was killed." (Brackets in complaint.)

A Border Patrol spokesman declined to comment.

Rodriguez is represented by the ALCU and by Luis Parra, of Nogales, Ariz.

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