Court Rules on Killing People across the Border

By David Hausman

On Oct. 10, 2012, José Antonio Elena Rodriguez, a 16-year-old boy, was shot and killed on Calle Internacional, a street in his hometown of Nogales, Sonora, Mexico by a U.S. Border Patrol Agent.

The agent, Lonnie Swartz, fired his gun through the U.S.-Mexico border fence, striking José Antonio approximately 10 times, with virtually all of the bullets entering from his back.

The unjustified death devastated the Rodriguez family, and raised serious legal questions: If a U.S. Border Patrol agent uses excessive and unnecessary force to kill a noncitizen in a foreign country, are there consequences under the U.S. Constitution?

On Wednesday, almost six years after José Antonio was killed, the Ninth Circuit Court of Appeals held that his mother can sue Swartz for damages. The Ninth Circuit’s decision involves several constitutional doctrines, but as the court recognized, at its core is a simple principle: “It is inconceivable that any reasonable officer could have thought that he or she could kill [José Antonio Elena Rodriguez] for no reason.”

The opinion is not only a milestone in the fight for justice for José Antonio’s family, it is the first time that a court of appeals has confirmed that the Constitution, and in particular the Fourth Amendment, applies in the context of a cross-border shooting. Indeed, this marks the first appellate case ever to apply the Fourth Amendment internationally. The ruling sets a critical precedent that Border Patrol agents cannot kill without constitutional repercussions just because the victim was across the border in Canada or Mexico.

The American Civil Liberties Union first filed a federal lawsuit in 2014 on behalf of Araceli Rodriguez, José Antonio’s mother, to vindicate her son’s constitutional rights. The Fourth Amendment clearly “prohibits law enforcement officers from using ‘objectively unreasonable’ force to ‘seize’ a person.”

Swartz — and the federal government, which took his side in this case at the same time as it is separately prosecuting him for the killing — asked for the case to be dismissed, arguing that José Antonio was not deprived of any constitutional rights because as a Mexican national killed in Mexico, he doesn’t have any. In July 2015, the U.S. District Court of Arizona denied that request, finding that José Antonio “was entitled to protection pursuant to the Fourth Amendment.”

Swartz then chose to appeal, doubling down on the arguments that the Constitution stops at the border, that he is immune from suit, and that José Antonio’s mother should not be able to sue him for damages, even if her son’s shooting did violate the Constitution.

It’s that last argument — that the court should not allow a constitutional suit against a federal officer for damages, also called a Bivens suit — that became one of the critical issues in the case. Bivens suits got their name from a 1971 case called Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, where the plaintiff sued federal officers for violating the Fourth Amendment in searching and arresting him. The Supreme Court held that the Constitution allows plaintiffs to seek damages from federal officers for unlawful searches and seizures.

That’s exactly what José Antonio’s mother is doing in this case: She is suing Agent Swartz for violating the Fourth Amendment by killing her son. The Ninth Circuit recognized that. It also rightly rejected the government’s arguments that Araceli should not be able to seek damages because “the cross-border nature of the shooting implicates foreign policy.”

The court noted that the government had not explained how any policy would actually be implicated by allowing the suit to go forward, saying “just as national security cannot be used as a talisman to ward off inconvenient claims, neither does the ‘mere incantation’ of the magic words ‘foreign policy’ cause a Bivens remedy to disappear.”

Those words are especially important now at a moment when the Trump administration is doing all it can to militarize the border. The Ninth Circuit got it right: CBP officers are not above the law, even when they claim that national security is implicated and even when their victim is on the other side of the border.


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30 Comments

    1. David Greenwald

      Here is the court ruling: “A US Border Patrol agent standing on American soil shot and killed a teenage Mexican citizen who was walking down a street in Mexico.  We address whether that agent has qualified immunity and whether he can be sued for violating the Fourth Amendment. Based on the facts alleged in the complaint, we hold that the agent violated a clearly established constitutional right and is thus not immune from suit.”

      This is about the illegal actions of a Border Patrol agent, and frankly, murder, nothing to do with administrative policy.

      1. Keith O

        Of course not because it happened on Obama’s watch.

        David you know damn well that if this had happened recently that the press would be all over Trump.  If you don’t admit that then you’re being dishonest IMO.

        1. Howard P

          A rogue agent… anyone blaming higher ups, under any administration, for the criminally a-hole cretin’s actions, would be wrong… if it happened where the shooter’s position was in Texas, ten shots, most in the back, am leaning to death penalty, AFTER the victim’s family has extracted every cent from the agent and his/her estate…

          Blaming Obama for this would a cretin-like behavior… also, if Trump was blamed…

        2. Ken A

          Keith is pointing out that those on the left are more likely to blame the “higher ups” they don’t like (aka are not liberal enough) for a “cretin’s actions” but give the “higher ups” a pass if they like them (aka they consider them “liberal enough”).

          Most people I know in Davis with left of center views wanted Linda Katehi to step down after the pepper spray incident while a couple of the small number of Davis locals with right of center views were happy to hear that the campus cop “gave the smelly hippies what they deserved”…

        3. Tia Will

          if this had happened recently that the press would be all over Trump.”

          Which “press” Keith? Some yes, but what about Fox, Sinclair, Breibart, InfoWars? I doubt they would have been criticizing Trump and not Obama.  I would not bring this up except for the fact that you implied David was being “dishonest” if he did not see things your way.

        4. Ken A

          If Tia is wondering “Which “press”” she can look to see who was blaming Trump for “putting kids in cages” (that did not have a problem with Obama “putting kids in cages”)…

    2. Jerry Waszczuk

      DV should interview Janet Napolitano about this case .  This is terrible but looks it is a custom in USA .  Shoot first , think and ask questions later .

        1. David Greenwald

          If I ask her by email, I’ll get a response from UCOP media staff telling me the appropriate chain of command by which to request an interview.

  1. Tia Will

    the Constitution stops at the border, that he is immune from suit, and that José Antonio’s mother should not be able to sue him for damages, even if her son’s shooting did violate the Constitution.”

    Even if the Constitution stopped at the border, basic human decency should not. There was no legitimate reason for this shooting. Even if the boy killed had been throwing rocks, the obvious solution is to back up, not to shoot him 10 times, mostly in the back. I am encouraged by this judgement. And my opinion would be the same regardless of the occupant of the WH.

    1. Howard P

      Maybe, after the civil suit (if any) is adjudicated, criminal charges should be brought to the Hague, as a crime against humanity… I’d have no problem with that…

      1. Jerry Waszczuk

        I understood from the 72 pages long Court Opinion that the criminal charges were brought against that  guy who pull the trigger and kill the Mexican boy .

        1. Jerry Waszczuk

          Base on this statement in the Court Opinion I assumed that Border Patrol Agent was charged .

           
          We explained in Hardwick v. County of Orange that “malicious criminal behavior is hardly conduct for which qualified immunity is either justified or appropriate.”55 Qualified immunity “exists to protect mistaken but reasonable decisions, not purposeful criminal conduct.”56 Rodriguez’s complaint makes a persuasive case for murder charges.57 Indeed, the United States has indicted and tried Swartz for murder.58
          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.
           
           
           

      1. Tia Will

        Everyone is at the mercy of the DV moderator. He has pulled a number of my comments. My hat is off to Don. I don’t know how he does it. I lasted less than 3 months before quitting due to public release of information I considered personal although readily accessible on line. Don has done this for years with much condemnation and little appreciation except for those of closely affiliated with the Vanguard who recognize the value of what he does.

        1. Ron

          Tia:  “I lasted less than 3 months before quitting due to public release of information I considered personal although readily accessible on line.”

          This has no relationship to being a moderator.

          Ultimately, I think that Don is a reasonable moderator, with the possible exception of his own comments at times.  In any case, no one else is apparently willing to do this volunteer, full-time, 24-hour/day job.

          The condemnation that Don might receive is primarily due to his own comments. If he wasn’t (also) a commenter/participant, no one would even know who he is.

  2. Alan Miller

    Aquitted?  Yet there was “no reason”?  Is some fact missing here?  Did the border agent even claim to have a reason?  He just shot at a boy in Mexico for fun?

    Also, trying to imagine if a Mexican border agent or police officer shot a boy in San Ysidro or Yuma from across the boder just for target practice how that would go down?

    1. Tia Will

      Alan

      The claim was not for “no reason”. According to articles I read on the issue was that boys had been throwing rocks at the officers. Hardly a reason for shooting someone 10 times when you could easily move out of range…..but also not “no reason”.

  3. Tia Will

    Ken

    (that did not have a problem with Obama “putting kids in cages”)…”

    You chose a singularly bad example. At the time when the movie Snowpiercer came out, when Obama was in office, I wrote a scathing piece about the policies at our border and how similar they were to the movie. The article I wrote is available in the Vanguard archives.

    1. Ken A

      It was actually a great example since left leaning mainstream media aka “the press” that went wall to wall coverage blaming Trump for “putting kids in cages” did not have much of a problem with Obama “putting kids in cages” (just like right wing rant radio and faux news that went crazy about Barney Frank’s boyfriend and hookers years ago don’t seem to care when a conservative Republican congressman is caught with a gay hooker).  I did not comment on Tia’s views (that are more honest and consistent than most liberal/progressives and the mainstream media)…

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