Border agent wants suit tossed
The family of a teen killed in Mexico by shots from Arizona say they have a right to sue in the U.S.
TUCSON— Thefamily of a Mexican boy shot to death by a U.S. Border Patrol agent has gone to federal court to make an argument previously raised by an Abu Ghraib detainee and the family of another Mexican teenager killed along the border: The U.S. Constitution protects foreigners on foreign soil.
But that argument failed Arkan Mohammed Ali, an Iraqi held in the notorious U.S. military prison outside Baghdad. And it failed relatives of Sergio Adrian Hernandez Guereca, a 15-yearold killed by a Border Patrol agent in 2010.
The family of Jose Antonio Elena Rodriguez hopes the circumstances of his case will result in a different outcome.
Their argument, as laid out in U.S. District Court last week, centers on the actions of a Border Patrol agent on the night of Oct. 10, 2012. From enduring a flurry of stones thrown across the border to firing his .40-caliber pistol and reloading and firing again, everything the agent did was on American soil.
But the shots crossed the border and killed16-year-old Jose, who was walking home from a basketball game in Nogales, Sonora. According to arguments by Border Patrol Agent Lonnie Swartz’s attorneys, that means the boy’s family has no legal means by which to sue.
The family counters that Judge Raner C. Collins need not make a broad ruling concerning all cross-border shootings. But they say that because all actions leading to Jose’s death happened on the U.S. side of the border, the Constitution does apply to the case.
“The most fundamental right is the right to not be arbitrarily killed,” said American Civil Liberties Union attorney Lee Gelernt, who is representing the family. He added that the border agent was only fortunate that he didn’t happen to kill a U.S. citizen living across the border.
Acknowledging that the shooting was “horrible and tragic,” attorney Sean Chapman said that, nevertheless, his client, Swartz, did not deprive Jose of his rights under the U.S. Constitution, because in this case, he has none.
“We may like it, we may not like it, but it is the law,” Chapman said.
Collins, who heard arguments Tuesday, did not say when hewould issue a ruling on the matter.
Swartz isn’t arguing that Jose posed a deadly threat, but rather that the agent didn’t know he might be firing on someone with constitutional rights.
The U.S. Department of Justice recused itself from the case because Swartz could face federal criminal charges.
The hearing comes as investigations of several fatal police shootings across the U.S. scrutinize one central question: Didan officer truly feel a threat to his life?
In Ferguson, Mo.; Staten Island, N.Y.; and Cleveland, officers’ actions just before the use of deadly force are compared with the perceived threat posed by a suspect.
Border Patrol agents also are facing scrutiny over the use of deadly force in several cases.
A scathing internal report obtained by the Los Angeles Times last year criticized the Border Patrol for lack of diligence in shooting investigations and found that agents sometimes used questionable tactics when implementing deadly force, such as intentionally standing in the path of a car to justify shooting at drivers.
Border Patrol agents fear the projectiles thrown at them from Mexico, referring to the experience as getting “rocked.”
So when the report suggested that agents refrain from responding to rocks with deadly force, the Border Patrol pushed back hard.
The agency rejected two major recommendations in the report: barring border agents from shooting at vehicles unless its occupants are trying to kill them, and barring agents from shooting people who throw things that can’t cause serious physical injury.
A report by Homeland Security’s Office of Inspector General in September found that border agents opened fire on rock throwers 22 times in fiscal year 2012. It did not say how many people were injured by the “rock assaults” or by the gunfire.
Forming a backdrop to Tuesday’s arguments was a ruling from the U.S. 5th Circuit Court of Appeals, which foundin April that the family of Sergio Adrian Hernandez Guereca couldn’t sue over his death because the shooting’s effects were “felt in Mexico.”
Sergio was on Mexican soil when the agent, Jesus Mena Jr., fired his weapon from the El Paso side of the border after youths began throwing rocks at him.
On Tuesday, attorneys on both sides brought up the 5th Circuit case — Swartz’s attorney to argue that the matter was decided, the legal team of Jose’s family to say that the ruling had no impact on the Arizona case.
Collins joked from the bench on Tuesday that, no matter how he rules, the case is likely to be appealed.
If it is, it will go to the 9th Circuit Court of Appeals, which is more liberal than the 5th Circuit. Disputes between federal appellate courts are settled by the Supreme Court.