Nogales Border: Mother of rock throwing son killed by border agent can sue, rules judge

Chivis Martinez Borderland Beat -from Arizona Star

A federal appeals court this morning ruled the mother of a teen shot by a Border Patrol agent through the fence has a legal right to sue him and the federal government in U.S. courts for damages.

In a 2-1 opinion, the majority of the panel for the 9th Circuit Court of Appeals said the fact that Jose Antonio Elena Rodriguez was shot and died in Mexico does not overcome the fact that the action started in this country with the bullets fired by Lonnie Swartz.

"We have a compelling interest in regulating our own government agents' conduct on our own soil,'' wrote Judge Andrew Kleinfeld for himself and Edward Korman.

Swartz

Kleinfeld also suggested the U.S. Department of Justice was being inconsistent in arguing against civil liability in this case. He pointed out that the same agency is using its criminal laws to prosecute Swartz in federal court on charges related to the exact same incident.

But Judge Milan Smith Jr., in his dissent, said there is no authority of federal courts to hear claims for actions outside the United States. And he pointed out that another federal appeals court, hearing a case with virtually identical facts, reached the opposite conclusion and found there is no remedy for victims and their families in federal courts in these cases.

That split virtually guarantees that this case will end up at the U.S. Supreme Court. And even if the justices there say Araceli Rodriguez, the mother of the 16-year-old victim, has a right to sue, that does not guarantee a jury in Tucson will see things her way.

Elena Rodriguez was in Mexico, near the international border fence in Nogales, when Swartz shot him from the Arizona side on Oct. 10, 2012.

The Border Patrol has argued — as has Swartz in his criminal case — that the agent was defending himself against rock throwers. Elena Rodriguez was shot 10 times in his back.

In the criminal case, a jury acquitted Swartz of charges of second degree murder but deadlocked on the lesser charges of manslaughter. A new trial on those charges is set for later this year, though Sean Chapman, Swartz's attorney, is trying to get those dismissed.