Border Patrol agents who shoot into Mexico and kill aren't above the law, court says

U.S. border patrol agents were looking for drug smugglers on the U.S.-Mexico border in Arizona in 2012 when one of the agents fired through the border fence at 16-year-old José Antonio Elena Rodríguez, who was walking down the street in Nogales, Mexico The agent, Lonnie Ray Swartz, shot Elena at least 10 times, mostly in the back, killing him.

When Elena’s mother sued Swartz in U.S. court, she joined four other families of loved ones killed by border patrol agents in cross-border shootings who have filed similar lawsuits trying to hold the officers accountable. So far, none of those lawsuits has been allowed to move forward because the U.S. Constitution does not apply to people outside the border.

But a Tuesday ruling from the 9th Circuit calls that into question.

The 9th Circuit ruled that Elena’s family’s right to sue is clear, and Swartz does not have qualified immunity — the rule that shields public employees from liability in civil rights lawsuits unless the plaintiff can prove the employee knew they were violating the plaintiff’s rights.

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“Any reasonable officer would have known, even without a judicial decision to tell him so, that it was unlawful to kill someone — anyone — for no reason,” wrote Judge Andrew Kleinfeld, who was appointed by George W. Bush, joined by Judge Edward Korman, a Reagan appointee. "We are unable to imagine a serious argument that a federal agent might not have known that it was unlawful to shoot people in Mexico for no reason."

The third judge on the panel, Judge Milan Smith, appointed by Bush, dissented saying the cross-border shooting issue should be decided by Congress, not the judiciary.

“This is an enormous victory for the family and a common sense interpretation of the constitution,” said Lee Gelernt, the lead ACLU attorney representing Elena’s mother. “No tenable understanding of the constitution would allow a U.S. border patrol agent to stand at the fence and shoot a Mexican teenager 20 feet over the border and have complete immunity.”

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The decision from the 9th Circuit, which covers California and Arizona, means the biggest federal appeals courts on the southwest border are now split about whether families of Mexicans shot and killed by U.S. border patrol officers in cross-border shootings can sue the officers who killed their loved ones.

The 5th Circuit Court of Appeals, which covers Texas, ruled the opposite way in a similar 2010 cross-border shooting case, deciding the constitution doesn’t apply to another Mexican teenager, 15-year-old Sergio Adrian Hernández Guereca.

This split means the cross-border shooting issue is almost certainly headed back to the Supreme Court, which heard arguments in the Hernández case last year, but sent the case back to the 5th Circuit without a ruling. The legal questions surrounding cross-border shootings persist as the Trump administration tries to hire thousands more Customs and Border Protection officers to work on the Southern border.

A VICE News investigation identified seven cross-border shootings since CBP was founded in 2003 — cases in which Mexican citizens who were in Mexico were killed by CBP officers who were in the U.S. Three of the victims, including Elena and Hernández, were teenagers. If these people had been standing on the U.S. side — in some cases just feet from where they were shot — their families’ right to sue the officers would be clear. But because the killings straddle the border, courts have so far ruled that these families are out of luck.

Chief Justice John Roberts expressed concern about allowing the Constitution to apply to cross-border shooting victims at oral arguments in the Hernández case last year. The lawyer representing the Justice Department cautioned that ruling in the family’s favor would have a harmful impact on how the U.S. military operates overseas.

“How do you analyze the case of a drone strike in Iraq where the plane is piloted from Nevada?” Roberts asked. “Why wouldn’t the same analysis apply in that case?”

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The 9th Circuit this week said it wouldn’t: “Applying the Constitution in this case would simply say that American officers must not shoot innocent, non-threatening people for no reason. Enforcing that rule would not unduly restrict what the United States could do either here or abroad.”

Swartz, the border patrol agent who killed Elena, is also facing federal charges in the first criminal prosecution of an officer for a cross-border shooting. In April, an Arizona jury cleared Swartz of second-degree murder, but deadlocked on manslaughter charges. Prosecutors are re-trying the case again in October on the manslaughter charges.

Gelernt plans to relay the news of the 9th Circuit decision to Elena’s family in Mexico this week. Last year Elena’s grandmother, Taide Elena, told our colleagues at VICE she was hopeful the case would move forward.

“Getting justice for José Antonio would mean that many others could get justice as well,” she said. “The agents would think twice before killing another innocent person.”

Cover image: Demonstrators gather in Nogales, Sonora, Mexico at a vigil on May 10, 2018 for Jose Antonio Elena Rodriguez, the Mexican teenager who was shot and killed through the border wall by U.S. Border Patrol agent Lonnie Swartz in 2012 in Nogales. (Photo by Max Herman/NurPhoto/Sipa USA)(Sipa via AP Images)