Originally Published: October 23, 2016 5:45 a.m.
PHOENIX – Allowing a Border Patrol agent to escape civil liability for shooting a teen through the border fence and killing him would expose other area residents to the same danger, an attorney for the teen’s mother told federal judges Friday.
Lee Gelernt of the American Civil Liberties Union contends Lonnie Swartz should be forced to answer the wrongful death claim filed by the mother of 16-year-old Jose Antonio Elena Rodriguez.
He acknowledged that the boy was not in the United States when shot in 2012 nor had he just fled over the fence. In fact, there was no evidence the boy had ever even been in this country or that he wanted to live in this country.
But Gelernt told the 9th U.S. Circuit Court of Appeals that’s legally irrelevant.
“We don’t think that you need to want to live in the U.S. to not be shot across the border,’’ he said.
Potentially more significant, Gelernt warned the three-judge panel it would set a bad precedent to allow Swartz -- and anyone else who fires shots across the border -- to escape civil liability.
He pointed out the boy was walking along Calle Internacional, a major street in Nogales, Son., which runs parallel and adjacent to the border fence.
“This is a community that has to walk along this street all the time,’’ Gelernt said. He said their right against being shot by a federal employee with a government weapon should not be dependent on having some contact with the United States, like asking for health care benefits.
“They’re just saying that they don’t want to be shot when they walk to the store or go to the doctor along the border which it’s inescapable that they have to do,’’ Gelernt said. “They cannot be asked to have to assume the risk of being shot every time they walk along the main thoroughfare.’’
Swartz has separately been charged with second degree murder, with that case pending before a federal judge in Tucson.
But Swartz, who is on administrative leave, is trying to get the indictment dismissed. And Gelernt said even if Swartz is convicted, that is not the same as giving civil relief to the boy’s family.
The judges are not expected to rule any time soon.
The U.S. Supreme Court earlier this month agreed to hear a similar case out of Texas where a Border Patrol agent in 2010 shot and killed a Mexican teen playing in a culvert that separates El Paso from Juarez. The 5th Circuit Court of Appeals ruled last year the parents cannot pursue their claim against Jesus Mesa Jr. because the boy, Sergio Hernandez, was a Mexican citizen “who was on Mexican soil at the time he was shot.’’
Appellate Judge Milan Smith Jr. said the 9th Circuit court will be bound by whatever the Supreme Court rules.
But Smith pointed out that there are still only eight justices on the high court, what with the U.S. Senate refusing to consider the nomination of Merrick Garland by President Obama. And Smith said if the high court splits 4-4 on that Texas case, there will be no precedent set, freeing the 9th Circuit to reach its own conclusion.
The issue before the judges here is not whether Swartz fired the shots, 10 of which an autopsy showed entered from the back, which at this point is not being disputed. Swartz contends the boy was throwing rocks across the border, a contention his family denies.
What is at issue is whether there is a legal remedy for the boy’s mother in U.S. courts.
Sean Chapman, Swartz’s attorney, said the boy died in Mexico. And Chapman said he had no “significant ties’’ to the United States, paid no taxes nor assumed no “societal obligations.’’
He did acknowledged that the boy’s grandmother, a U.S. resident, did go to Mexico -- the frequency of which is under dispute -- to take care of the boy from time to time.