9th Circuit: Family Of Slain Mexican Teen Can Sue Border Patrol Agent, U.S. Government

By Michel Marizco
Published: Tuesday, August 7, 2018 - 4:46pm
Updated: Thursday, August 9, 2018 - 8:54am

Jose Antonio Elena Rodriguez picture
Michel Marizco/KJZZ
Taide Elena holds a portrait of her dead grandson, Jose Antonio Elena Rodriguez, in 2012.

A federal appeals court ruled Tuesday morning that the family of a teenager shot dead in Mexico by a U.S. Border Patrol agent across the border in Arizona can sue the agent and the U.S. government.

The case stems from a 2012 shooting when Border Patrol Agent Lonnie Swartz placed his gun between the bars of the border fence in Nogales and shot and killed the teen, Jose Antonio Elena Rodriguez.

The majority judges ruled agents’ conduct must be regulated when they’re on U.S. soil.

"Presumably, that is why the United States was willing to apply its criminal law 'extraterritorially' in charging Swartz with homicide, even while simultaneously arguing that the presumption against extraterritoriality precludes the Bivens claim here because the injury happened a few feet onto the other side of the border," wrote Judge Andrew Kleinfeld. The Bivens claim is used in court cases to determine whether an American federal agent violated a constitutional right.

This 9th Circuit case mirrors a 2010 case where another teen was shot dead by a second border agent. In that case, Sergio Adrián Hernández Güereca, 15, was killed after a rock-throwing attack on a Border Patrol agent near downtown El Paso.

The 5th Circuit upheld an El Paso judge's decision that the family in that case could not sue.

"In March, the 5th Circuit said no, today, the 9th Circuit said yes. I think only the Supreme Court can really resolve this split," said Steve Vladeck, a law professor and lawyer for the family.

The ACLU is representing the Elena Rodriguez family in the civil case. "The ruling could not have come at a more important time, when this administration is seeking to further militarize the border,'' said ACLU attorney Lee Gelernt in a statement reacting to the court's decision.

The teen’s family will still have to convince a jury. A Tucson jury already acquitted Swartz of second-degree murder and deadlocked on a manslaughter charge.

Swartz's attorney argued successfully that Elena Rodriguez was aiding drug smugglers by climbing onto the border fence and throwing rocks at Swartz and at local police to help the smugglers escape back over the fence into Nogales, Sonora, when Swartz shot and killed him.

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