Originally Published: August 7, 2018 8:07 p.m.
PHOENIX — A federal appeals court ruled Tuesday the mother of a teen shot by a Border Patrol agent through the fence has a legal right to sue him — and, by extension, the federal government as his employer — in U.S. courts for wrongful death.
In a 2-1 opinion, the majority of the panel for the 9th Circuit Court of Appeals said the fact that Jose Antonio Elena Rodriguez was shot and died in Mexico does not overcome the clear evidence that the action started in this country with the bullets fired by Lonnie Swartz while on duty.
“We have a compelling interest in regulating our own government agents’ conduct on our own soil,’’ wrote Judge Andrew Kleinfeld for himself and Edward Korman. He said that gives federal courts jurisdiction here.
“Applying the Constitution in this case would simply say that American officers must not shoot innocent, non-threatening people for no reason,’’ the judge wrote.
“Enforcing that rule would not unduly restrict what the United States could do either here or abroad.’’
Kleinfeld also suggested the U.S. Department of Justice was being inconsistent in filing its own legal briefs on Swartz’s behalf arguing against civil liability in this case. The judge pointed out that the same agency is using its criminal laws to prosecute Swartz in federal court on charges related to the exact same cross-border shooting incident.
But appellate Judge Milan Smith Jr., in his dissent, said federal courts have no authority to hear claims for actions outside the United States.
He also pointed out that another federal appeals court, hearing a case out of Texas where a Border Patrol agent shot a teen in Mexico, reached the opposite conclusion and found there is no right for the family to sue.
That split virtually guarantees this case will end up at the U.S. Supreme Court. And even if the justices there say Araceli Rodriguez, the teen’s mother, has a right to pursue her claim, that does not guarantee a jury in Tucson will see things her way.
“The ruling could not have come at a more important time, when this administration is seeking to further militarize the border,’’ said Lee Gelernt of the American Civil Liberties Union in a prepared statement. He is representing Rodriguez in the civil case.
Elena Rodriguez, 16 at the time, was in Mexico, near the international border fence in Nogales, when Swartz shot him from the Arizona side on Oct. 10, 2012.
Swartz’s attorney, Sean Chapman, has argued here — as he has in the criminal case — that the agent was defending himself against rock throwers when he fired his service revolver.
Evidence presented in that case shows that Elena Rodriguez was hit 10 times in the back. And Swartz reloaded, firing a total of 16 shots.
In that criminal case, a jury acquitted Swartz of charges of second degree murder but deadlocked on the lesser charges of manslaughter. A new trial on those charges is set for October, though Chapman is trying to get those dismissed.
The civil case presents two issues.
First is the agent’s claim that he is entitled to “qualified immunity’’ for his actions.
Kleinfeld acknowledged that the wrongful death claim by Rodriguez is based on her contention that her son was doing nothing more than walking on the street. And that, he said, is her burden to prove in court. But Kleinfeld said that he and his colleagues are required at this stage of the case to decide the legal questions based solely on those allegations. And based on those facts, he wrote, “it is inconceivable that any reasonable officer could have thought that he or she could kill Jose Antonio for no reason.’’
There was no mention in Tuesday’s ruling that federal prosecutors, in pursing Swartz in the criminal case, did not dispute that the teen was one of three individuals who was throwing rocks over the fence. Prosecutors also did not contest that the rock throwing was done to help two people on top of the fence who were trying to get back to Mexico after smuggling marijuana into the United States.
The thornier legal question is whether federal courts have the right to hear Fourth Amendment claims of illegal seizure — in this case, a life — when the incident occurs outside the country.
The teen was a Mexican national who was shot while in Mexico. And Kleinfeld acknowledged the limits on the reach of federal courts in incidents that occur in other countries.
But he said that, given the facts in this case, there is no reason to bar a Fourth Amendment claim, what with the lawsuit is based on actions taken by Swartz in the United States.
Anyway, the judge said, there is no way that Swartz could have known that the teen was not a U.S. citizen, calling the agent’s claim of immunity on that basis “bizarre.’’
“For all Swartz knew, Jose Antonio was an American citizen with families and activities on both side of the border,’’ he said.
Kleinfeld dismissed claims that allowing Rodriguez to sue could undermine “national security concerns.’’
“We recognize that Border Patrol agents protect the United States from unlawful entries and terrorist threats,’’ he wrote.
“Those activities help guarantee our national security,’’ Kleinfeld continued. “But no one suggests that national security involves shooting people who are just walking down a street in Mexico.’’
Kleinfeld also said Rodriguez would be left without a meaningful remedy if she cannot sue for wrongful death in federal courts, citing federal laws that preclude other claims.
Nor was he persuaded by the arguments by attorneys for the federal government that if Swartz is found guilty of manslaughter that federal law will require him to pay restitution to the family.
“A criminal charge is the government’s remedy, not the victim’s.’’ Kleinfeld said. He also pointed out that a criminal conviction requires proof “beyond a reasonable doubt’’ while jurors in a civil case need only conclude it is “more likely than not’’ that Swartz used objectively unreasonable force to award damages to Rodriguez.