José Antonio Elena Rodríguez was under protection of US constitution when killed by agent Lonnie Swartz at Arizona border despite precedent, US judge says

This article is more than 5 years old

This article is more than 5 years old

The mother of a Mexican teen killed by a US border patrol agent in a cross-border shooting can continue a lawsuit in the case, a federal judge has ruled.

Justice for José? Border shooting of Mexican teen raises constitutional issue Read more

The civil rights case against Agent Lonnie Swartz over the death of 16-year-old José Antonio Elena Rodríguez will go forward after US district court judge Raner C Collins denied a part of his motion to dismiss the case.

An attorney for Swartz argued that Elena Rodríguez was not protected by the US constitution because he was in Mexico at the time of the shooting.

In a similar case in Texas, a federal appeals court ruled that a teen killed in Mexico by a border agent in El Paso was not protected by the constitution.

But Collins wrote he respectfully disagrees with that finding.

“The court finds that, under the facts alleged in this case, the Mexican national may avail himself to the protections of the fourth amendment and that the agent may not assert qualified immunity,” Collins wrote.

The ACLU filed a lawsuit on behalf of the boy’s mother. Elena Rodríguez was in Nogales, Sonora, near a border fence when Swartz shot him from Nogales, Arizona, on 10 October 2012.

The border patrol has said Swartz was defending himself against rock-throwers. Elena Rodríguez’s family says he wasn’t involved in any wrongdoing.

Swartz has not been charged, and an investigation by the FBI is ongoing. He is still an agent with the border patrol, his attorney, Sean Chapman, said after a hearing in May.

In his motion to dismiss, Chapman wrote that the teenager was not entitled to constitutional protections because Elena Rodríguez “neither came within the territory of the United States nor developed substantial connections with this country to justify its extraterritorial application”.

Chapman could not be reached for comment late on Thursday evening. James Lyall, an ACLU attorney on the case, applauded the ruling.

“The court was right to recognize that constitutional protections don’t stop at the border and that border patrol agents cannot shoot across the border with impunity,” Lyall said.

In the Texas case, a federal appeals court found the family of another Mexican teen killed by an agent cannot sue in the United States. US border patrol agent Jesus Mesa Jr shot 15-year-old Sergio Adrián Hernández Guereca in June 2010 near a bridge between El Paso, Texas, and Ciudad Juárez, Chihuahua. Authorities said Mesa was trying to arrest immigrants who had illegally crossed into the country when rock-throwers attacked him. Mesa fired his weapon across the Rio Grande, striking Hernández Guereca twice.

A three-judge panel of the fifth US circuit court of appeals originally said Hernández Guereca’s family could sue Mesa. But the full court overturned that ruling in April.