A portrait of 16-year-old Mexican youth Jose Antonio Elena Rodriguez, who was shot and killed in Nogales, Sonora, Mexico, is displayed on the street where he was killed that runs parallel with the U.S. border. | Anita Snow/AP Photo Court rules Mexican mother can sue over cross-border Border Patrol shooting

A woman whose son was killed on Mexican soil by a U.S. Border Patrol agent in Arizona can sue for damages, a federal court ruled Tuesday.

The U.S. Ninth Circuit Court of Appeals ruled that Border Patrol agent Lonnie Swartz is not entitled to qualified immunity, saying that the Fourth Amendment — which prohibits unreasonable searches and seizures — applies in this case.


"Based on the facts alleged in the complaint, Swartz violated the Fourth Amendment. It is inconceivable that any reasonable officer could have thought that he or she could kill J.A. for no reason," Judge Andrew J. Kleinfeld wrote in the majority opinion. "Thus, Swartz lacks qualified immunity."

Swartz, who was found not guilty in April of second-degree murder for the 2012 shooting, has said he shot at people throwing rocks through the border fence in Nogales, Arizona. A retrial in the case will take place in October.

Jose Antonio Elena Rodríguez, 16, was hit mostly in the back by about 10 bullets, according to the court ruling. Swartz fired between 14 to 30 bullets at Rodríguez.

In the lawsuit filed by Araceli Rodriguez, mother of Jose Antonio Elena Rodríguez, she says her son was "peacefully walking down the Calle Internacional, a street in Nogales, Mexico," according to the opinion. She said the 16-year-old was not throwing rocks and was not engaging in any illegal behavior.

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Kleinfeld also wrote that if the facts presented in the case "turn out to be unsupported," then it may be exposed that the shooting could have been excusable or justified.

"There is and can be no general rule against the use of deadly force by Border Patrol agents," he wrote. "But in the procedural context of this case, we must take the facts as alleged in the complaint. Those allegations entitle J.A.’s mother to proceed with her case."

Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project who argued in the case, said that the court's decision "could not have come at a more important time."

“The court made clear that the Constitution does not stop at the border and that agents should not have constitutional immunity to fatally shoot Mexican teenagers on the other side of the border fence," he said in a statement. "The ruling could not have come at a more important time, when this administration is seeking to further militarize the border."

