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Court: No Constitutional Immunity for Border Agents Who Shoot Across the Border

By William Vogeler, Esq. on August 08, 2018 | Last updated on March 21, 2019

A Border Patrol agent shot across the U.S.-Mexico border and killed a 16-year-old teenager as he walked the streets of Nogales, Sonora.

In Rodriguez v. Swartz, the U.S. Ninth Circuit Court of Appeals said the Mexican boy's family can sue the agent for violating his civil rights. There is no constitutional protection for agents to shoot people across the border, the appeals court said.

As President Trump's border campaign heats up, it is a lightening rod decision with advocates on both sides of the issue. The unrest is escalating to a point that one court decision could tip the scales.

Across the Border

According to reports, Jose Antonio Elena Rodriguez was walking down a street parallel to the border in 2012. Agent Lonnie Swartz said the youth was throwing rocks.

In response, Swartz fired 16 times through a border fence. Two bullets hit Rodriguez in the head; eight in the body --most in the back.

His mother sued, and Swartz claimed qualified immunity. A trial judge rejected the immunity defense, and the Ninth Circuit affirmed.

"We recognize that Border Patrol agents protect the United States from unlawful entries and terrorist threats," Judge Andrew J. Kleinfeld wrote for the majority in the 2-1 ruling. "Those activities help guarantee our national security.

"But no one suggests that national security involves shooting people who are just walking down a street in Mexico."

Dividing the Circuits

The appeals court sent the case back to the trial court, but it also set up a potential Supreme Court case by dividing the circuits on the issue. In a dissent, Judge Milan D. Smith, Jr., said the majority created a split with the Fifth Circuit.

In a Fifth Circuit case, an agent shot across the Rio Grand River and struck a 15-year-old boy. The Supreme Court sent the case back down without making a decision, and the trial judge dismissed it.

Brandon Judd, president of the National Border Patrol Council, called the Ninth Circuit ruling "more judicial political activism." Lee Gelernt, an ACLU attorney, praised the appeals court.

"The ruling could not have come at a more important time, when this administration is seeking to further militarize the border," he said.

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