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Court Says Family of Boy Slain Across U.S.-Mexico Border Can Sue Government

— August 8, 2018

A federal judge ruled that a woman whose son was shot across the U.S-Mexico border can sue for damages.

The Ninth Circuit Court of Appeals determined that Border Patrol agent Lonnie Swartz isn’t entitled to qualified immunity. Judge Andrew J. Kleinfield penned the majority opinion, opining that the Fourth Amendment applies to the cross-border killing.

“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,” Kleinfield wrote. “Thus, Swartz lacks qualified immunity.”

‘J.A.’ refers to 16-year old Jose Antonio Elena Rodriguez, who was killed in 2012. The boy had been shot 10 times in the back. Swartz claims that Elena Rodriguez and his friends were playing a dangerous game of chicken along the Arizona border.

Border Patrol agents patrol a stretch of desert along the U.S.-Mexico frontier. Image via Pixabay/user:mademoddymad. (CCA-BY-0.0)

When Border Patrol agents approach J.A. and his friends, the boys purportedly fled and sought refuge beneath a bridge. They allegedly began throwing stones, prompting Swartz to open fire.

The agent was found not-guilty of second-degree murder in April. His attorneys successfully argued that Swartz was entitled to qualify immunity as a federal officer, and that the Constitution offers no protections to noncitizens with “no connections to the United States.”

POLITICO reports that a retrial is expected to take place in October.

J.A.’s mother, Araceli Rodriguez, claims her son was “peacefully walking down the Calle Internacional, a street in Nogales, Mexico,” right across the boundary with Arizona. Rodriguez says her son wasn’t throwing rocks or partaking in any other illegal activity.

Klenfield noted that if the mother’s accusations “turn out to be unsupported,” then Swartz’s claims could be either excused or justified.

“There is and can be no general rule against the use of deadly force by Border Patrol agents,” the judge wrote. “But in the procedural context of this case, we must take the fact as alleged in the complaint. Those allegations entitle J.A.’s mother to proceed with her case.”

Kleinfeld’s 72-page opinion, reprinted in part by The Washington Post, highlights the case’s unusual circumstances—Swartz, an American Border Patrol agent, shot and killed a foreign national in Nogales, Mexico, while standing on the U.S. side of the border.

“There are many reasons not to extend the Fourth Amendment willy-nilly to actions abroad,” Kleinfeld wrote. “But those reasons do not apply to Swartz. He acted on American soil subject to American law.”

The judge called Swartz’s qualified immunity argument ‘bizarre,’ noting that it would have been impossible for the agent to determine whether Elena Rodriguez was a Mexican national or American citizen.

The 9th Circuit Court’s ruling added that the Fifth Amendment’s due-process protections apply under a “shocks the conscience” test.

“Swartz’s conduct would fail that test,” Kleinfeld wrote on behalf of the majority. “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.”

The American Civil Liberties Union, which brought the suit on behalf of Araceli Rodriguez and J.A.’s surviving family, praised the decision as a “landmark ruling.”


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