A federal court on Tuesday ruled that the mother of a boy shot and killed in Mexico may proceed with a lawsuit against the Customs and Border Protection Agent who opened fire on the teen from the American side of the U.S.-Mexico border.
According to the 9th Circuit Court of Appeals, CBP agent Lonnie Swartz may have violated 16-year-old Jose Antonio Elena Rodríguez’s 4th Amendment rights when he shot through the border fence separating Nogales, Mexico, from Nogales, AZ in 2012. Accordingly, the court ruled that Swartz is not immune to a lawsuit in this instance.
Per the court’s ruling:
Shortly before midnight on October 10, 2012, defendant Lonnie Swartz was on duty as a U.S. Border Patrol agent on the American side of our border with Mexico. J.A., a sixteenyear-old boy, was peacefully walking down the Calle Internacional, a street in Nogales, Mexico, that runs parallel to the border. Without warning or provocation, Swartz shot J.A. dead. Swartz fired somewhere between 14 and 30 bullets across the border at J.A., and he hit the boy, mostly in the back, with about 10 bullets. J.A. was not committing a crime. He did not throw rocks or engage in any violence or threatening behavior against anyone or anything. And he did not otherwise pose a threat to Swartz or anyone else. He was just walking down a street in Mexico.
However, the court notes that while the narrative above is what it used to base its decision allowing any future lawsuit, the facts “have not been proven, and they may not be true.” As a result, it adds, evidence that the shooting may have been justified could come out over the course of the suit. Swartz has claimed he was shooting at a group of people throwing rocks at the border.
“Under the particular set of facts alleged in this case Swartz is not entitled to qualified immunity,” Judge Andrew Kleinfeld wrote in the court’s majority opinion. “The Fourth Amendment applies here. No reasonable officer could have thought that he could shoot J.A. dead if, as pleaded, J.A. was innocently walking down a street in Mexico.”
Earlier this year Swartz was tried on—and subsequently acquitted of—second degree murder charges stemming from Rodríguez’s death; he now faces a retrial on a lesser manslaughter charge. During that trail, jurors were shown a 3D recreation of the shooting compiled using photographs, autopsy data, geographical laser scanning, and nearby video cameras, which showed Swartz opening fire on Rodríguez and then moving to two separate vantage points along the border fence to continue shooting.
Speaking with The Guardian, Rodríguez’s mother Araceli called the murder case a “fraud,” a “disappointment,” and “an injustice.”
ACLU attorney Lee Gelernt, who argued the case before the 9th Circuit, hailed the decision, said in a press release that “the court made clear that the Constitution does not stop at the border and that agents should not have constitutional immunity to fatally shoot Mexican teenagers on the other side of the border fence.”
Gelernt also contextualized the ruling within the broader anti-immigration efforts of the Trump administration to, saying that it “could not have come at a more important time, when this administration is seeking to further militarize the border.”