Court: Agent in cross-border killing can be sued

ACLU: Ruling notes that the Constitution ‘does not have a hard stop at the border’

PHOENIX — A federal appeals court has ruled that a Border Patrol agent who fatally shot a Mexican teen on the other side of the border doesn’t have immunity and can be sued by the boy’s family for violating his civil rights.

The ruling Tuesday has wide implications and came almost two years after the agent’s attorney argued he was immune from a civil lawsuit because the U.S. Constitution didn’t extend to 16-year-old Jose Antonio Elena Rodriguez, who was in Mexico when agent Lonnie Swartz shot him about 10 times through a border fence.

The Border Patrol has said Elena Rodriguez was throwing rocks at Swartz, endangering his life.

The central question in the case is whether Elena Rodriguez was protected by the U.S. Constitution as a Mexican citizen on Mexican soil.

In a very similar case out of Texas, a different appeals court has ruled that a teen boy who was also fatally shot by an agent in a rock-throwing incident was not protected by the Constitution. That case made its way to the U.S. Supreme Court, which appeared divided and which sent it back to the lower court without a decision. The lower court then reaffirmed its decision that the boy wasn’t constitutionally protected.

The 9th U.S. Circuit Court of Appeals said in its decision that the agent “violated a clearly established constitutional right and is thus not immune from suit.”

The conflicting opinions in the appeals courts, both of which cover cases on the U.S.-Mexico border, could mean the Elena Rodriguez case ends up back in the Supreme Court.

“This ruling is important both as to border shootings specifically, but more generally that the Constitution does not have a hard stop at the border,” said ACLU attorney Lee Gelernt, representing Elena Rodriguez’s mother in the civil lawsuit. “It’s an enormous victory for the family and … for the rule of law at the border.”