9th Circuit Hears Cross-Border Shooting Case

     SAN FRANCISCO (CN) — Attorneys for a Border Patrol agent who shot and killed a Mexican teenager through a border fence told a Ninth Circuit panel Friday that the boy’s family does not have enough ties to the United States to sue on Fourth Amendment violations.
     In October 2012, 16-year-old Jose Antonio Elena Rodriguez was shot 10 times from behind while he was walking on Calle Internacional, a street in Nogales, Sonora, that runs parallel to the U.S.-Mexico border fence.
     His mother, Araceli Rodriguez, sued in July 2014, claiming her son’s death was “senseless and unjustified.” Lonnie Swartz, a U.S. Customs and Border Patrol agent, was later disclosed to be the agent who shot the teenager.
     Swartz was indicted in 2015 for second-degree murder in Rodriguez’s death. A trial date is scheduled for February in the matter.
     At the start of Friday’s hearing, Ninth Circuit Judge Milan Smith said that normally the court would not ask for oral arguments in a case so similar to one that the U.S. Supreme Court has agreed to hear.
     Last week, the Supreme Court granted a writ of certiorari in a lawsuit filed by the family of Sergio Hernandez Guereca, another Mexican teenager shot and killed by a Border Patrol agent aiming into Mexico from across the Rio Grande in Texas. The en banc Fifth Circuit found last year that there were no Fourth Amendment excessive force claims in that case because Hernandez had no “significant voluntary connection” to the United States.
     “There are some differences in the case and we also have a Supreme Court composed of eight justices. We have some recent cases where there is a 4-4 split and doesn’t grant a precedent, and we had some situations where [certiorari] has been withdrawn, so we don’t know what is going to happen,” Smith said. “If the Supreme Court rules and gives definitive instructions, of course, we will follow those, but in the meantime, we don’t know what’s going to happen.”
     Sean Chapman, an attorney for Swartz, argued there are no differences between the Hernandez and Rodriguez lawsuits.
     Smith countered that Rodriguez was close to his grandparents, then legal permanent residents of the United States who regularly would cross into Nogales to take care of the teenager.
     “The emphasis is on whether the decedent J.A. has developed significant ties or taken on societal obligations,” Chapman said. “There was no evidence that J.A. came to the U.S. I think that is where the focus needs to be.”
     U.S. District Judge Raner Collins found in July 2015 that Rodriguez was entitled to Fourth Amendment protections at the time of his death.
     “[W]hile J.A.’s nationality weighs against granting him protection pursuant to the Fourth Amendment, his status as a civilian engaged in peaceful activity weighs in favor of granting him protection despite the fact that J.A. was in the territory of another country,” Collins wrote.
     Collins considered Rodriguez’s relationship with his grandparents, and his residence in the border town of Nogales as substantial connections to the United States.
     Justice Department attorney Henry Whitaker agreed with Chapman’s argument that there is no difference between the two lawsuits.
     “On the constitutional issue, we don’t think that there is any material difference,” Whitaker said. “Here, there is no allegation that this individual had ever been inside the United States.”
     Lee Gelernt, an attorney for Rodriguez’s mother, said the teenager was closely connected with his grandmother, who is now a U.S. citizen.
     “She essentially was the caretaker because the mother unfortunately could not get a job in that town and was away a lot,” Gelernt said. “What we are hearing a lot from the other side about, well, he didn’t live in the U.S., he didn’t want to live in the U.S. We don’t think that you need to want to live in the U.S. to not be shot across the border.”
     Under Collins’s ruling, Swartz did not have qualified immunity for his actions.
     “[T]his is not a case involving circumstances where Swartz needed to make split-second judgment — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation,” Collins wrote. “Instead, the facts alleged in the first amended complaint, demonstrate an ‘obvious case’ where it is clear that Swartz had no reason to use deadly force against J.A.”
     Whitaker told the appellate panel that the circumstances surrounding the shooting remain unclear.
     “Is it clear what the circumstances of the shooting were?” asked Senior District Judge Edward Korman. Korman is sitting by designation from the Eastern District of New York.
     “We are at the pleading stage of this case and the court has to accept at this stage the allegation that the shooting was unjustified,” Whitaker replied.

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