Cross-Border Shooting Unconstitutional After Agent Shot Mexican From US Soil

Neetu Chandak | Contributor

A federal court ruled Tuesday that Border Patrol agents do not have constitutional immunity for cross-border shootings after an official shot a Mexican citizen from U.S. soil, who allegedly was not causing harm or performing any illegal activities.

Border Patrol agent Lonnie Swartz shot 16-year-old Mexican citizen Jose Antonio Elena Rodriguez (J.A.) a little after midnight on Oct. 10, 2012. Swartz was found not guilty of second degree murder in April for the shooting, Politico reported.

Antonio was allegedly walking peacefully “down the Calle Internacional, a street in Nogales, Mexico, that runs parallel to the border” and was not throwing rocks or engaging “in any violence or threatening behavior against anyone or anything,” according to his mother and plaintiff Aracelli Rodriguez in the lawsuit.

The town of Nogales is said to be “in some respects one town” divided by the Arizona-Mexico border, according to the case.

“Families live on both sides of the border, and people go from one side to the other to visit and shop,” the court file said.

Swartz allegedly hit Antonio with 10 bullets in the back and fired between 14 and 30 bullets, according to the lawsuit. The Border Patrol agent did not know Antonio’s immigration status and argued that it was not clear whether he could shoot somebody across the border or not, the lawsuit stated.

The U.S. 9th Circuit Court of Appeals applied the Fourth Amendment, which does not allow unreasonable searches and seizures, and ruled that Swartz used unduly force against Antonio. The federal court, in addition, said Antonio’s status was not relevant to the situation. (RELATED: Border Patrol Shoots Man After He Threw A Rock At An Agent And Stole His ATV)

“For all Swartz knew, J.A. was an American citizen with family and activities on both sides of the border,” the case said. “Therefore, the question is not whether it was clearly established that aliens abroad have Fourth Amendment rights. Rather, it is whether it was clearly established that it was unconstitutional for an officer on American soil to use deadly force without justification against a person of unknown nationality on the other side of the border.”

This was not the first time the agent shot through the Nogales fence. Swartz has allegedly shot at people throwing rocks across the border, according to Politico.

A retrial will occur in October and if the facts from the case do not have sufficient evidence, the court might have to assume that Swartz had a justified reason to shoot, Judge Andrew Kleinfeld wrote in the lawsuit.

Rodriguez can pursue suing Swartz, according to the court ruling.

“Her complaint alleges no facts that could allow anyone to characterize the shooting as being negligent or justifiable,” the lawsuit said. “What is pleaded is simple and straightforward murder.”

The case was first argued in 2016 but was withdrawn. It was resubmitted July 31.

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