The U.S. Supreme Court agreed Tuesday to decide whether Border Patrol agents can be sued by the survivors of those who they shoot and kill on the other side of the border.
In a brief order, the justices said they want to hear arguments about whether federal courts can wade in on cases where the death occurred outside the United States – cases in which courts generally have no jurisdiction – if there are allegations that a “rogue” federal law enforcement officer violated the victim’s rights and there is no other legal remedy available to the family.
Officially, the case the justices are using to decide the issue involves a 2010 incident where Jesus Mesa Jr., a Border Patrol agent, shot and killed 15-year-old Sergio Andrian Hernandez Guereca. Mesa was on the United States side of the border in El Paso; Hernandez was on the other side of a culvert in Mexico.
But whatever the justices rule also will determine whether Aracelli Rodriguez can pursue her claim in federal court in Arizona following the 2012 shooting death of her son, Jose Antonio Elena Rodriguez.
As in the Texas case, the teen, 16 at the time, was in Mexico when Border Patrol agent Lonnie Swartz shot him by firing through the fence at Nogales.
Evidence presented in that case shows that the teen was hit 10 times in the back. Swartz also reloaded, firing a total of 16 shots.
In the Texas case, a federal appeals court ruled against the survivors. But the majority of a three-judge panel at the 9th Circuit Court of Appeals, hearing the Arizona case, reached a different conclusion.
“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. He said that gives federal courts jurisdiction here.
“Applying the Constitution in this case would simply say that American officers must not shoot innocent, non-threatening people for no reason,” the judge wrote. “Enforcing that rule would not unduly restrict what the United States could do either here or abroad.”
Kleinfeld also suggested the U.S. Department of Justice was being inconsistent in filing its own legal briefs on Swartz’s behalf arguing against civil liability in this case. The judge pointed out that the same agency was at the time using its criminal laws to prosecute Swartz in federal court on charges related to the same cross-border shooting incident.
In that criminal case, a jury acquitted Swartz of charges of second degree murder but deadlocked on the lesser charges of manslaughter, eventually resulting in prosecutors dismissing the case.
But appellate Judge Milan Smith Jr., in his dissent on the right to sue in the civil case, said federal courts have no authority to hear a Fourth Amendment claim of illegal seizure – in this case, a life – when the incident occurs outside the country.
Kleinfeld, in his majority decision, acknowledged there are limits on the reach of federal courts in incidents that occur in other countries.
But he said that, given the facts in this case, there is no reason to bar a Fourth Amendment claim, what with the lawsuit is based on actions taken by Swartz in the United States.
Anyway, the judge said, there is no way that Swartz could have known that the teen was not a U.S. citizen, calling the agent’s claim of immunity on that basis “bizarre.”
“For all Swartz knew, Jose Antonio was an American citizen with families and activities on both side of the border,” he said.
Kleinfeld dismissed claims that allowing Rodriguez to sue could undermine “national security concerns.”
“We recognize that Border Patrol agents protect the United States from unlawful entries and terrorist threats,” he wrote.
“Those activities help guarantee our national security,” Kleinfeld continued. “But no one suggests that national security involves shooting people who are just walking down a street in Mexico.”
Kleinfeld also said Rodriguez would be left without a meaningful remedy if she cannot sue for wrongful death in federal courts, citing federal laws that preclude other claims.
No date has been set for the high court to hear arguments.