Court seeks gov’t input on border shooting

PHOENIX — The nation’s high court wants the views of the Trump administration on whether a Border Patrol agent can be held liable for shooting and killing a teen through the border fence in Nogales.

In a brief order Monday, the U.S. Supreme Court asked the federal solicitor general, an arm of the Department of Justice, for its views on whether Lonnie Swartz can be sued in civil court for the 2012 death of Jose Antonio Elena Rodriguez.

At least part of the argument presented by attorney Michael Bloom on behalf of Swartz is that his client, a federal employee, is entitled to qualified immunity. That concept shields officials from civil liability as long as their conduct does not violate clearly established rights which a reasonable person would know.

But the larger and potentially thornier question before the high court is the question of whether Araceli Rodriguez, the teen’s mother, even has the right to be in court.

Bloom points out that while Swartz was on the U.S. side of the border, the teen was in Mexico.

“No federal statute authorized a damages action by a foreign citizen injured on foreign soil by a federal law enforcement officer in the context of a cross-border shooting,’’ the attorney wrote in his legal briefs to the Supreme Court. That, Bloom said, is why the lawsuit filed by Rodriguez is based on a claim that Swartz violated the constitutional rights of her son.

But he said that it is for Congress — and not the courts that have so far given the go-ahead for Rodriguez to sue — to decide whether she is entitled to claim damages.

The decision of the justices to seek the input of the solicitor general, while relatively rare, is not unusual. In general, the justices want the views of the federal government on how any decision would affect its interests.

And there’s something else: A finding of liability against Swartz likely would have financial implications for the federal government, as employers generally are liable for the actions of their on-duty workers.

The Supreme Court order comes as Swartz is on trial in Tucson on criminal charges of manslaughter. That second trial comes after a jury acquitted him of charges of murder but deadlocked over the lesser charges.

In that case, it is the criminal division of Department of Justice that is prosecuting him.

Yet the civil division, at a 2016 hearing in federal appeals court, took the position that Swartz cannot be sued. Assistant Attorney General Henry Whitaker told the court the location of the shooting in a foreign country, coupled with the boy’s lack of contact with this country, means federal courts have no jurisdiction.

In a 2-1 ruling earlier this year the 9th Circuit Court of Appeals concluded otherwise, which is why the issue is now before the nation’s high court.

The basic facts in both the civil and criminal cases are undisputed. Swartz shot and killed Elena Rodriguez through the fence.

Swartz, who fired through the fence multiple times, has argued that the Elena Rodriguez was throwing rocks at him and said he likely was involved in drug smuggling, both contentions disputed by the youth’s family. An autopsy conducted in Mexico concluded he was hit 10 times in the back.

In seeking to overturn the appellate court ruling allowing the civil suit to proceed, Bloom told the justices that they have repeatedly ruled that the question of whether someone has a private right to sue “is one better left to the legislative branch in the great majority of cases.’’

“This court recognizes and heeds the strong deference owed to the separation of powers between Congress and the judiciary to create causes of actions that are not explicit to the statutory text itself,’’ Bloom wrote. And if nothing else, he said that it should be up to Congress to decide on issues that could affect foreign relations.

He also argues that border security is the prerogative of the political branches of government. And he said there is reason not to extend certain constitutional rights guaranteed to U.S. citizens and those in this country to people and situations outside the United States.

But Lee Gelernt of the American Civil Liberties Union, in urging the Supreme Court to uphold the 9th Circuit decision, said Rodriguez should be allow to sue because she has no other legal remedies. And he argued there is no evidence that Congress intended to bar this kind of lawsuit, especially as the woman is arguing that Swartz was acting as a federal employee when he shot the teen.

Gelernt also told the justices they should focus solely on the facts of this case and not seek to make it about things like national security or foreign policy considerations.