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U.S. Supreme Court weighs in on border shooting



A new ruling Monday from the U.S. Supreme Court could prove good news for the mother of a Mexican teen hoping to sue the Border Patrol agent who shot her son.

In an unsigned order, the justices directed the 5th Circuit Court of Appeals to take another look at its decision in a similar case where a Border Patrol agent in Texas shot and killed a teen who was in a culvert on the Mexican side of the border. The justices said the appellate court needs to consider certain new legal issues.

Potentially more significant, the Supreme Court said there was no basis for lower courts to conclude the Border Patrol agent is entitled to qualified immunity.

The ruling is a victory for the plaintiffs in that case: The appellate court had previously ruled that they had no right to sue in U.S. courts. It gives the parents of Sergio Hernandez a new opportunity to make their case that Border Patrol Jesus Mesa Jr. who fired across the border can be found liable.

But Robert Hilliard, attorney for the Hernandez family, told Capitol Media Services that what the justices wrote in connection with his case should also benefit Araceli Rodriguez, who is suing Border Patrol agent Lonnie Swartz over the 2010 shooting of her son.

“Reviving our case, and determining no qualified immunity (for the Border Patrol agent) is the first step in what I believe will ultimately be constitutional protections to those shot and killed (in Mexico) by Border Patrol agents standing in the United States,” he said.

Swartz shot Jose Antonio Elena Rodriguez who was standing on the Mexican side of the border at Nogales, through the border fence. Swartz has not denied the incident, but said the 16-year-old was throwing rocks at him.

After hearing oral arguments last year, the judges of the 9th Circuit decided not to rule whether her case could go forward. Instead they said they would wait to see what the Supreme Court ruled in the Texas case.

There are several issues that are key in both cases.

Potentially the most crucial is whether a Fourth Amendment claim of wrongful search and seizure – in this case, encompassing wrongful death – can be brought in federal courts when the victim was killed in a foreign country.

The full 5th Circuit said no because the victim was “a Mexican citizen who had no significant voluntary connection to the United States” and “was on Mexican soil at the time he was shot.”

But Hilliard noted the Supreme Court said it’s not that simple. He said the justices want the issue reconsidered, with the lower court considering things ranging from the rank of the officers involved to how disruptive it would be to have judges intruding into the function of other branches of government.

And Hilliard insisted those factors favor not only his client but also Rodriguez in her case against Swartz.

In Monday’s ruling, the justices also resurrected the claim that Hernandez’s Fifth Amendment rights were violated because he was deprived of life or liberty without “due process of law.”

That claim does not require someone be in the United States to bring. But the appellate court concluded that the Border Patrol agent was entitled to qualified immunity because Hernandez was “an alien who had no significant voluntary connection” to the United States.

The justices, however, said that assumption has no legal basis.

“It is undisputed, however, that Herandez’s nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting,” the high court wrote.

Swartz, through attorney Sean Chapman, has raised the same defense of qualified immunity. But U.S. District Court Judge Raner Collins, in an earlier ruling, reached the same conclusion as the Supreme Court in the Hernandez case, saying Collins cannot claim qualified immunity for his actions, particularly as the agent could not have known at the time of the shooting that the victim was not a citizen.

If nothing else, Monday’s court action means it will likely be at least October – if not later – before the justices rule in the Texas case. And that keeps the civil lawsuit against Swartz on the back burner, even as a criminal trial against him is set to begin Oct. 12.

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