A federal appeals court is allowing a lawsuit over a Border Patrol agent's killing of a Mexican teenager to proceed, saying that if the plaintiff's version of events is correct, the agent "violated a clearly established constitutional right and is thus not immune from suit."
In her lawsuit, Araceli Rodriguez says U.S. Border Patrol agent Lonnie Swartz violated her son's Fourth Amendment rights against unreasonable search and seizure, as well as his Fifth Amendment rights — a claim that essentially accuses Swartz of executing her son without due process.
Ruling that Rodriguez's case should proceed, the majority of a panel for the 9th Circuit Court of Appeals stated: "We cannot imagine anyone whose conscience would not be shocked by the cold-blooded murder of an innocent person walking down the street in Mexico or Canada by a U.S. Border Patrol agent on the American side of the border."
The panel voted 2-1 to allow the suit against Swartz to move ahead. The civil case has raised complicated questions about law enforcement agents' legal immunity – and whether the U.S. Constitution might sometimes apply to a foreign citizen along the border. Amid a proliferation of similar incidents in recent years, the Supreme Court has not yet issued a blanket ruling to cover all the aspects of such cases.
Swartz fired at Jose Antonio Elena Rodriguez from the U.S. side of the border, but his bullets struck and killed Elena Rodriguez, 16, on the other side, in Nogales, Mexico. The killing took place late on the night of Oct. 12, 2012, when Swartz shot Elena Rodriguez around 10 times, including eight times in the back, according to the medical examiner in Sonora, Mexico.
The American agent said he had acted in self-defense after rocks were thrown over the border. Swartz fired from behind a tall metal fence on an embankment that runs parallel to — and some 20 feet above — International Street in Nogales, where Elena Rodriguez had been walking when he was killed.
The incident produced a legal first in 2015, when Swartz was indicted on murder charges for the cross-border shooting. That criminal trial ended in April, when a jury acquitted Swartz of murder and deadlocked on a count of manslaughter.
Swartz "has been on unpaid administrative leave since his indictment in 2015," his attorney, Sean Chapman, told NPR.
When asked about any plans to appeal Tuesday's ruling, Chapman said, "We will either file a motion for rehearing en banc" — referring to the full circuit court, rather than a three-judge panel — or ask the Supreme Court to take the case.
In allowing the civil lawsuit to proceed, the 9th Circuit judges also moved to give new context to a legal precedent the Supreme Court set in 1971, in its ruling in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The landmark Bivens case covered the actions of federal agents who were found to have violated constitutional protections, but it did not involve a cross-border action.
As they invoked Bivens in the current case, Judge Andrew Kleinfeld and Edward Korman said in the majority opinion written by Kleinfeld that they did so because "no other adequate remedy was available."
In his dissent, Judge Milan Smith Jr. said that it's up to Congress, not the courts, to provide a remedy for damages in such cases. The court was going too far in extending Bivens, he said.
"In holding to the contrary," Smith wrote, "the majority creates a circuit split, oversteps separation-of-powers principles, and disregards Supreme Court law. I therefore respectfully dissent."
The "circuit split" Smith mentioned refers to the 9th Circuit reaching a different conclusion than the 5th Circuit did in a recent similar case — a situation that likely bolsters the chance that the Supreme Court will eventually take up the issue.
The judges who ruled in Rodriguez's favor said that while federal law bars the U.S. from being accountable to foreign laws, the plaintiff in this case is seeking to hold Swartz accountable under the U.S. Constitution.
Kleinfeld wrote in his opinion, "We are applying the Constitution to afford a remedy to an alien under these circumstances."
The Rodriguez case had been put on hold in late 2016, as the Supreme Court was considering Hernandez v. Mesa, a case that revolved around a U.S. Border Patrol agent who shot and killed 15-year-old Sergio Hernandez, in a culvert between the U.S. and Mexico at the El Paso, Texas, border.
Last summer, the Supreme Court sent the Hernandez case back to the 5th Circuit Court of Appeals and gave the plaintiffs a partial victory by saying the lower court made a mistake when it found the U.S. border agent in that case, Jesus Mesa Jr., had qualified immunity. In part, the lower court had reasoned that Hernandez wasn't protected by the Constitution because he wasn't a U.S. citizen.
In its ruling, the Supreme Court said that because Mesa hadn't known "Hernandez's nationality and the extent of his ties to the United States" when he shot at him, those facts were irrelevant to deciding whether the agent's actions were legal.
Citing that aspect of the Supreme Court ruling, the 9th Circuit judges said the facts about Elena Rodriguez's citizenship were similarly irrelevant.
It would be "bizarre," the majority opinion stated, for Swartz to be granted qualified immunity on the grounds that the teenager was not a U.S. citizen.
Reacting to the ruling in Arizona, Art del Cueto, head of the local Border Patrol Union, warned that it could embolden people who want to carry out cross-border attacks on U.S. agents, as Arizona Public Media reports.
Rodriguez has pursued her lawsuit with the help of the American Civil Liberties Union. After Tuesday's appeals court ruling, Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project, said, "The ruling could not have come at a more important time, when this administration is seeking to further militarize the border."