It's been almost six years since 16-year-old José Antonio Elena Rodríguez was shot and killed by a U.S. Border Patrol agent, and only now is his family getting a little bit of justice. On August 7, the U.S. Court of Appeals for the 9th Circuit ruled in a split decision that José's mother, Araceli Rodríguez, could sue the man who killed her son — Border Patrol agent Lonnie Swartz — and the federal government in U.S. courts for civil damages, the Arizona Daily Star reported.

The case has been long contested because José was a Mexican citizen and was standing on Mexican soil when he was shot 10 times by Swartz, who fired his gun through a section of border fence from the U.S. side. The shooting occurred late in the evening on Oct. 10, 2012, in the border town of Nogales, Arizona, and Nogales, Mexico. In a 2016 New York Times story, Nogales, Arizona, police officers Quinardo Garcia and John Zuñiga described the details of the night José was killed. That night, according to the article, the officers were called to the scene in Nogales, Arizona, due to suspicious activity at the border fence, possibly drug smugglers trying to cross over the fence illegally. One officer said people were throwing rocks over the fence, and both claimed they heard gunfire, but neither said they had witnessed the actual shooting that killed José.

James F. Tomsheck, head of U.S. Customs and Border Protection's Office of Internal Affairs and of this investigation, told the Times in 2016 what he says he saw in the surveillance footage gathered from border security. According to the Times report, Tomshenk said another Border Patrol agent got to the scene; he said that agent emerged from a vehicle, walked to the fence, and started firing.

"He fired the round in chamber, all 12 rounds in the magazine, reloaded and fired at least one additional round," Tomsheck told the Times.

He went on to say that what he witnessed in the footage "demonstrated that José Antonio was certainly not throwing rocks at the time he was shot." He also described the shooting, according to the Times, as "the most egregious" of the excessive-force cases he’d seen at Customs and Border Protection. Tomsheck also added that if charges weren't brought against Swartz, it would basically show that it's "open season at the border."

José's family has been in litigation for their son's death for quite some time. In April, a jury found Swartz not guilty of second-degree murder, however it was deadlocked on the lesser charges of voluntary and involuntary manslaughter. Swartz's defense has always been that he acted in self-defense, as The Guardian reported.

"This 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," Lee Gelernt, the deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project who also represented Araceli Rodríguez, said yesterday in a statement. "This ruling could not have come at a more important time, when this administration is seeking to further militarize the border."

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