Border Patrol Agent Must Face Claim Over Cross-Border Killing

In this Dec. 4, 2017 photo, a slogan asking for justice for 16-year-old Mexican youth Jose Antonio Elena Rodriguez, who was shot and killed on a street in Nogales, Sonora, Mexico, is displayed on the streets’ border wall where he was killed. (AP Photo/Anita Snow)

TUCSON, Ariz. (CN) – A Border Patrol agent acquitted in the 2012 cross-border shooting death of a Mexican teen can still be sued over the incident, and the teen he killed was entitled to constitutional protections despite being in Mexico, a Ninth Circuit panel ruled Monday.

Agent Lonnie Swartz was on duty on Oct. 10, 2012, in Nogales, Arizona, when he went to assist other agents trying to catch suspected smugglers. As a group of people on the Mexican side of the fence lobbed rocks over the barrier to distract agents, Swartz opened fire through gaps in the wall and killed 16-year-old Jose Antonio Elena Rodriguez.

A federal jury acquitted Swartz of second-degree murder in April, but deadlocked on manslaughter charges. He is set to be retried on manslaughter charges in October.

Monday’s ruling is in a civil lawsuit filed in 2016 by Ariceli Rodriguez, Elena Rodriguez’s mother. Swartz’s lawyers claimed he was immune to lawsuits in the shooting, because he was acting as a federal law enforcement officer. The Ninth Circuit rejected that argument.

“Based on the facts alleged in the complaint, we hold that the agent violated a clearly established constitutional right and is thus not immune from suit,” Senior U.S. Circuit Judge Andrew Kleinfeld wrote for the three-judge panel. “We also hold that the mother of the boy who was killed has a cause of action against the agent for money damages.”

The American Civil Liberties Union, which helped with Rodriquez’s legal team, called Monday’s ruling a landmark that goes well beyond this one case.

“The court made clear that the Constitution does not stop at the border and that agents should not have constitutional immunity to fatally shoot Mexican teenagers on the other side of the border fence,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said in a statement

The ruling notes the appellate judges must assume the facts as presented by Rodriguez, who claims in the lawsuit that her son was merely walking down the street and was not part of the smuggling crew, are true. Based on that, the panel found “no reasonable officer could have thought that he could shoot J.A. dead if, as pleaded, J.A. was innocently walking down a street in Mexico.”

Kleinfeld added, “Based on the facts alleged in the complaint, Swartz violated the Fourth Amendment. It is inconceivable that any reasonable officer could have thought that he or she could kill J.A. for no reason. Thus, Swartz lacks qualified immunity.”

And while the trial judge dismissed Rodriguez’s Fifth Amendment claim because the Fourth Amendment applied, the panel said the “shocks the conscience” test may still apply for the Fifth Amendment claim.

“Swartz’s conduct would fail that test. We cannot imagine anyone whose conscience would not be shocked by the cold-blooded murder of an innocent person walking down the street in Mexico or Canada by a U.S. Border Patrol agent on the American side of the border,” Kleinfeld wrote for the panel.

U.S. Circuit Judge Milan Smith dissented, pointing out the right to sue on a civil rights claim belongs only to “any citizen of the United States or other person within the jurisdiction thereof,” and not to Mexican citizens like Rodriguez.

“This express limitation strongly suggests that Congress did not intend to create a damages remedy for aliens injured abroad as the result of federal officials’ unconstitutional conduct – assuming arguendo that the relevant constitutional provisions apply extraterritorially,” Smith wrote. “To infer otherwise, as the majority does, produces a bizarre result. A federal official who commits a cross-border violation of an alien’s constitutional rights must stand suit for damages – without any congressional authorization, no less. However, a state official who commits the same cross-border violation is statutorily exempt from a suit for damages.”

The majority’s holding, Smith said, creates a circuit split and “tees up our court for a new ‘chastening’ by the Supreme Court.”

Swartz’s attorney Sean Chapman, did not immediately return a phone call seeking comment.


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