Border agent’s retrial gets underway
A civil lawsuit, meanwhile, heads to Supreme Court
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
charges.
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.