U.S. Border Patrol and ACLU to Argue Dismissing Cross-Border Shooting Case

Oral arguments will begin this afternoon over a motion to dismiss in Rodriguez v Swartz, a widely-publicized lawsuit concerning the shooting of 16-year-old Mexican national Jose Antonio Elena Rodriguez by U.S. Border Patrol agents on October 10, 2012. In question is whether, and under what circumstances, U.S. Constitutional protections and laws extend beyond the border.

The outcome of today’s decision has the potential to set a great deal of precedence because the extraterritoriality of the Constitution in cross-border shooting situations like this “is not an issue that has been in front of a lot of courts,” says James Lyall, an attorney with the Arizona chapter of the ACLU, and co-counsel for the case. He expects whichever party loses to file an appeal, and adds that “the issues of the motion will be litigated thoroughly,” even if that means going to the U.S. Supreme Court.

According to the plaintiffs, two witnesses saw Jose Antonio “peacefully walking” home at 11:30 p.m. on Calle Internacional—a street in Nogales, Mexico, that runs parallel to the border fence—when one or more U.S. Border Patrol agents opened fire from the U.S. side and killed him. An autopsy report reveals he was shot 10 times in the back. Border Patrol agents say they were responding to illicit cross-border activity, and that the boy threw rocks at them, but no proof of that has ever been presented because the agency will not release the security-camera video footage

Jose Antonio’s mother, Araceli Rodriguez, filed a lawsuit in July 2014 against the agents who killed her son for violating his Fourth and Fifth Amendment rights. Court documents explain that defendants—which include at least one of the shooting agents, Lonnie Swartz — believe the U.S. laws in question “do not apply extraterritorially and that the entire suit must be dismissed, because [Jose Antonio] was standing on Mexican soil when he was shot and was later determined to be a Mexican citizen.”

The plaintiffs oppose this motion, and counter that because the officer was on U.S. soil, American laws about the excessive use of force apply. “To have any other result would mean agents like Swartz have impunity,” Lyall explains.

A 2008 Supreme Court decision, Boumediene v Bush, reaffirmed that the Constitution extends extraterritorially unless it would be “impractical or anomalous” to do so in a particular situation. “[In the case of Rodriguez v Swartz], there is nothing impracticable or anomalous about requiring [the] Defendant to comply with the constitutional limits on the use of deadly force when he fires through the fence at an unarmed civilian,” states court documents submitted by the plaintiff.

“What would be anomalous is a legal rule that allows border agents to fatally shoot someone on the other side of the border—even intentionally—with constitutional impunity.”

While courts in the U.S. 9th Circuit Court of Appeals, which include Arizona, have yet to hear a case like this, just last month the 5th Circuit Court of Appeals ruled that the family of a 15-year-old Mexican teen who was fatally shot by a U.S. Border Patrol agent standing on American soil could not sue in a U.S. Court. Lyall calls the outcome of today’s arguments “hard to predict.”

Cross-border shootings are not an uncommon occurrence along the U.S.-Mexico border. A December 2013 investigation by The Arizona Republic found that Border Patrol agents and Customs and Border Protection officers had been involved in at least 42 use-of-force deaths since 2005. And “in none of the 42 deaths is any agent or officer publicly known to have faced consequences — not from the Border Patrol, not from Customs and Border Protection or Homeland Security, not from the Department of Justice, and not, ultimately, from criminal or civil courts.”

What’s more, the public is not usually privy to any sort of play-by-play breakdown of events. “The government said Swartz was the only [agent] to fire” at Jose Antonio, Lyall tells New Times, “but they haven’t released the video footage.” This secrecy is part of the reason why, even two-and-a-half years after Jose Antonio was shot, the public still does not have a totally “clear picture of what happened,” he adds. “This has not been a transparent investigation.”

“Agent Swartz, standing on U.S. soil, killed an unarmed teenage boy innocently walking along the street on the other side of the border. If he believes the shooting was justified, he will have the opportunity to make that showing,” states the plaintiff’s opposition to the motion to dismiss. “But there is no support for [the] Defendant’s contention that he need not even answer the allegations because [Jose Antonio] was on Mexican soil and subsequently determined to be a Mexican national.”

At a time when local law enforcement agencies around the country are under a microscope for their use-of-force protocols and practices, the plaintiffs in this case feel that the unwillingness of the federal government to hold the Border Patrol to the same standards is hypocritical. “Any other force would be under a lot of scrutiny,” Lyall says, “but the largest federal law enforcement agency gets a free pass?”


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