Immigration

In Civil Case, Supreme Court Sides With Border Agent Who Killed Mexican Teen

Yuma Migrant Holding Facility
Yuma Migrant Holding Facility Hannah Critchfield
click to enlarge The existing border wall in Arizona. - JONATHAN MCINTOSH VIA FLICKR
The existing border wall in Arizona.
Jonathan McIntosh via Flickr
In a 5-to-4 decision on Tuesday, the U.S. Supreme Court ruled in favor of a Border Patrol agent who shot and killed a teenager who was in Mexico, deciding that the family of the boy did not have a right to sue for damages under the Constitution.

The court ruled in the Hernández v. Mesa case that the family of Sergio Hernández Guereca could not use United States courts to sue Jesus Mesa Jr., a Border Patrol agent who killed their unarmed son.

Hernández Guereca, who was 15, had been playing a game with friends on the Mexican side of the border that separates El Paso, Texas, from Ciudad Juárez, Mexico, when the agent fired the shot that took his life in 2010.

The court ruling sets a precedent for family members seeking retribution for cross-border killings by U.S. agents — and will likely affect an Arizona case against another agent who killed an unarmed, 16-year-old boy across the border in Nogales in 2012. In that case, Border Patrol Agent Lonnie Swartz fired 16 shots at Jose Antonio Elena Rodriguez. Ten hit their mark, striking the Rodriguez in the back, head, and lungs as he was running away, killing him on the scene.

Swartz, in his criminal defense, said he shot the teenager because he "had been throwing rocks."

Swartz was initially charged with second-degree murder, but later acquitted during the criminal trial in 2018. After the jury couldn’t reach a decision on lesser charges, the judge declared a mistrial.

But Araceli Rodriguez, the mother of the killed teenager, is still pursuing a civil lawsuit, first filed in 2014, alongside the American Civil Liberties Union, in which she asks for financial compensation for his killing.

The February 25 Supreme Court decision may lead to the case’s dismissal: Swartz was on United States soil when he shot the boy, who was standing on a street in the Mexican city of Nogales that runs parallel to the border fence.

“The gravity of this ruling could not be clearer given the Trump administration’s militarized rhetoric and policies targeting people at the border,” said ACLU attorney Lee Gelernt, who argued on behalf of the parents in the Mesa case. “Border agents should not have immunity to fatally shoot Mexican teenagers on the other side of the border fence. The Constitution does not stop at the border.”

“All I can say at this point is that we will review the decision and assess its impact on the Swartz case,” said Sean Chapman, Swartz's attorney representing the defendant. “Since the Swartz case is ongoing, I really cannot comment any further.”

Araceli Rodriguez could not be reached for comment, and the ACLU declined to comment further on the Arizona case.
KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Hannah Critchfield was an editorial fellow for Phoenix New Times starting in 2019.