Border agent’s re­trial gets un­der­way

A civil law­suit, mean­while, heads to Supreme Court

The Arizona Republic - - Valley & State - Rafael Car­ranza

NO­GALES — Araceli Ro­driguez joined hands to pray with nearly three dozen peo­ple who had gath­ered at the street fac­ing the U.S.-Mex­ico border fence where six years ear­lier her son, Jose An­to­nio, died from 10 gun­shot wounds to his back and head.

Araceli is feel­ing op­ti­mistic about the lat­est chap­ters in her years-long quest for jus­tice for her son’s mur­der. A new crim­i­nal trial is un­der­way in a Tuc­son fed­eral court for U.S. Border Pa­trol Agent Lon­nie Swartz, who faces charges on vol­un­tary and in­vol­un­tary man­slaugh­ter.

“I’m hop­ing the jury will be peo­ple that are on the side of jus­tice,” she said in Span­ish. “That they’re peo­ple with hum­ble hearts that won’t look at color, that won’t see whether he’s Mex­i­can, that they’re on the side of jus­tice be­cause in these six years that’s what we’ve fought for.”

Swartz is the first Border Pa­trol agent to face crim­i­nal charges in a cross-border shoot­ing. And this is the sec­ond crim­i­nal trial against him. In April, a jury ac­quit­ted Swartz of sec­ond-de­gree mur­der. But they couldn’t agree on ver­dicts on the two lesser


As the start of the re­trial neared, Araceli re­ceived news about a sec­ond case filed after her son’s death. In Au­gust, a panel of fed­eral judges in San Fran­cisco had ruled that she had the le­gal stand­ing to file a civil law­suit against Swartz for vi­o­lat­ing her son’s civil rights.

Swartz’s at­tor­neys ap­pealed that de­ci­sion, and it’s now be­fore the U.S. Supreme Court.

“I hope that ev­ery­thing goes well for us there, too,” she said in Span­ish. “Since the jury found him not guilty in the first crim­i­nal trial, we hope that in this civil case there will be jus­tice, too.”

The civil case will likely take much longer to set­tle than the crim­i­nal case un­der­way right now in Tuc­son.

At the same time as Araceli’s case, known as Ro­driguez v. Swartz, made its way through the le­gal sys­tem in Ari­zona and the 9th U.S. Cir­cuit Court of Ap­peals, an­other law­suit re­sult­ing from a cross-border shoot­ing in El Paso moved far­ther along, but with dif­fer­ent re­sults.

That case, Mesa v. Her­nan­dez, stemmed from the 2010 shoot­ing of Ser­gio Adrian Her­nan­dez Güereca by Border Pa­trol Agent Je­sus Mesa Jr. That case also in­volved ac­cu­sa­tions of a Mex­i­can teen throw­ing rocks over the border fence and the agent fir­ing shots through the fence in re­sponse, killing Her­nan­dez.

In 2017, that case reached the Supreme Court, but with only eight sit­ting judges then, the 4-4 split rul­ing sent it back to the Fifth Cir­cuit Court of Ap­peals in New Or­leans. The full panel of fed­eral judges ruled Her­nan­dez’s fam­ily did not have the right to sue Mesa for dam­ages.

With two very sim­i­lar cases, but with op­pos­ing rul­ings from sep­a­rate cir­cuit courts, the Supreme Court is likely to step in once again, ac­cord­ing to le­gal ex­perts. But un­like the first time around, there is now a full bench and the key, and likely de­cid­ing, vote on the mat­ter will be new­est as­so­ciate jus­tice, Brett Ka­vanaugh.

Even though both cases have been ap­pealed to the Supreme Court, it could be sev­eral months be­fore the jus­tices de­cide whether to take up ei­ther, if any, of the two cases.

In both cases, the high court has asked the so­lic­i­tor gen­eral to weigh in on the gov­ern­ment’s po­si­tion on whether a fed­eral agent and there­fore the fed­eral gov­ern­ment, should be held li­able for cross-border shoot­ings in­volv­ing for­eign na­tion­als.

“What’s at is­sue is whether the court can es­tab­lish a Con­sti­tu­tional cause of ac­tion, a con­sti­tu­tional law­suit,” said Joshua Black­man, a pro­fes­sor at the South Texas Col­lege of Law Hous­ton who spe­cial­izes in con­sti­tu­tional law and the Supreme Court.

“In re­cent years the Supreme Court has been very stingy and has sug­gested that courts should not be in the busi­ness of im­ply­ing new causes of ac­tion,” he added.

That may not bode well for the at­tor­neys rep­re­sent­ing the fam­i­lies of two slain teens, es­pe­cially with Ka­vanaugh.

Black­man said he’s in­clined to say that the new­est as­so­ciate jus­tice will likely join the other four con­ser­va­tive jus­tices who had pre­vi­ously voted against award­ing dam­ages to Her­nan­dez’s fam­ily.

“My guess is that court will sim­ply say that this is a new thing, it’s never been done be­fore and the courts shouldn’t do it,” he said. “It’s up to Congress to im­ply such a cause of ac­tion, that’s my pre­dic­tion.”

At­tor­neys for both Her­nan­dez’s case out of El Paso and Ro­driguez’s case out of No­gales seemed to ac­knowl­edge the chal­lenge that Ka­vanaugh’s ap­point­ment would present to their cases.

Luis Parra, the No­gales-based at­tor­ney for Araceli Ro­driguez, said that, should the Supreme Court take the case, he hoped Ka­vanaugh would ap­proach it in the same way as re­tired Jus­tice Anthony Kennedy, who Ka­vanaugh re­placed.

He pointed out that Ka­vanaugh clerked for Kennedy, the peren­nial swing vote on the Court, who he de­scribed as “very cau­tious and very thought­ful” when it came to in­ter­na­tional hu­man rights is­sues im­pli­cat­ing

the United States.

“De­spite his con­ser­va­tive stand on other is­sues, on this par­tic­u­lar is­sue, I’m hop­ing that he will be im­par­tial and that he will eval­u­ate cases that have an in­ter­na­tional hu­man rights com­po­nent in a man­ner very sim­i­lar to what Jus­tice Kennedy would do when he was on the bench,” Parra said.

Stephen Vladeck, a law pro­fes­sor at the Univer­sity of Texas and the coun­sel of record for the Her­nan­dez v. Mesa case, said he wasn’t “es­pe­cially op­ti­mistic” about Ka­vanaugh join­ing the more pro­gres­sive jus­tices.

“But you know, it’s an im­por­tant ques­tion. I think we have some pretty good ar­gu­ments about why there re­ally ought to be reme­dies and dam­ages in this con­text,” Vladeck ex­plained. “Whether it’s Jus­tice Ka­vanaugh or (Chief) Jus­tice (John) Roberts or some­body else, I think there’s go­ing to be some hard ques­tions for the jus­tices if they de­cide to take this case on the mer­its,” he added.

The de­fense at­tor­ney for Swartz, the Border Pa­trol agent from Ari­zona, de­clined to com­ment on the story be­cause the case is on­go­ing. The at­tor­ney for Mesa, the agent from El Paso, did not re­spond to a re­quest for com­ment.

Mike Pic­car­reta, the for­mer pres­i­dent of the Ari­zona Bar As­so­ci­a­tion and an ob­server in the case out of Ari­zona, said he was in­ter­ested in see­ing how Ka­vanaugh’s role would play out in the case, es­pe­cially given the deep po­lit­i­cal di­vi­sions his con­fir­ma­tion sowed na­tion­ally.

“Tra­di­tion­ally the Supreme Court has not been as politi­cized. So a lot of the po­lit­i­cal con­sid­er­a­tions aren’t in­volved,” he said. “But I’m sort of in­ter­ested in the way these new devel­op­ments, and it won’t be just this case, it’ll be other cases, whether that pre­vi­ous prac­tice con­tin­ues, and I hope it does.”

Black­man, the con­sti­tu­tional law pro­fes­sor, said that the in­put from the so­lic­i­tor gen­eral on both cases could take up to six months to sub­mit to the court. If so, that would ef­fec­tively shelve them un­til the court’s term next year, he added.


Border Pa­trol agent Lon­nie Swartz, left, makes his way to the U.S. Dis­trict Court build­ing in down­town Tuc­son in March.

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