A Border Patrol agent cannot claim immunity from a civil lawsuit by the mother of a Mexican teenager the agent shot while the agent was on US soil and the boy was walking down a street in Mexico at the border.
The 9th U.S. Circuit Court of Appeals Tuesday said the 16-year-old, identified only as J.A., was not suspected of any crime, was not fleeing or resisting arrest and did not pose a threat to anyone. The use of deadly for was unreasonable under the Constitution’s Fourth Amendment, the panel held in a 2-1 decision.
Although the allegations have not been proven in court, the lawsuit alleges than in 2012, agent Lonnie Swartz when he shot from the American side of the border into a street in Nogales, Mexico, hitting the teenager who was walking down Calle Internacional. Swartz is alleged to have fired between 14 and 30 bullets, hitting the boy 10 times in the back.
The lawsuit alleges that J.A. was not throwing rocks or engaged in any violence, but was walking down a main commercial and residential street in Nogales. Swartz was standing at a point on the U.S. side of the border that is atop a rock wall that rises 20 to 25 feet above the road in Nogales.
Judge Andrew Kleinfeld said that J.A.’s mother alleges no facts that would allow someone to characterize the shooting as negligent or justifiable. “What is pleaded is simple and straightforward murder,” Kleinfeld said.
The U.S. Justice Department filed an amicus brief in support of Swartz arguing that J.A.’s mother, Araceli Rodriguez, lacks a claim for fourth amendment violation. The panel rejected it.
In dissent, Judge Milan Smith said it was not for the courts, but for Congress, to decide if Rodriguez has a claim for damages as the mother of J.A.
The case goes back to Arizona for trial.
Case: Rodriguez v. Swartz, No. 15-16410