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Court stays out of case of deadly shooting by U.S. agent across border

In this file photo from Friday, Nov. 30, 2018, the justices of the U.S. Supreme Court gather for a formal group portrait to include new Associate Justice, top row, far right, at the Supreme Court Building in Washington, Friday, Nov. 30, 2018. Justice Ginsburg, 85, is missing arguments for the first time in more than 25 years as she recuperates from cancer surgery last month but is recuperating and working from home. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh. (AP Photo/J. Scott Applewhite, file)

In this file photo from Friday, Nov. 30, 2018, the justices of the U.S. Supreme Court gather for a formal group portrait. Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh. (AP Photo/J. Scott Applewhite, file)

A new U.S. Supreme Court ruling likely slams the door on the ability of the family of a teen killed by a Border Patrol agent in Nogales to sue him and, by extension, the federal government.

In a 5-4 decision Tuesday, the justices threw out claims filed by the family of 15-year-old Sergio Adrian Hernandez against Jesus Mesa Jr., a border patrol agent who, while standing on the United States side of the border in El Paso, shot and killed Hernandez on the other side of a culvert in Mexico.

Justice Samuel Alito, writing for the majority, said courts in this country cannot adjudicate what effectively is an international dispute.

But Justice Ruth Bader Ginsburg, in her dissent, said there is no reason that U.S. courts cannot rule on the conduct of U.S. Border Patrol agents who deploy their weapons while standing on the United States side of the border. She said where the shots land is irrelevant.

 In this March 21, 2018, file photo, Border Patrol agent Lonnie Swartz, left, arrives at U.S. District Court in downtown Tucson, Ariz., where opening arguments began in his murder trial in Tucson. Swartz will face a second trial Tuesday, Oct. 23, 2018, in the killing of a 16-year-old Mexican teen across the international border. Swartz was acquitted of second-degree murder in Tucson earlier in the year and now will be tried on voluntary and involuntary manslaughter charges. (Ron Medvescek/Arizona Daily Star via AP, File)

In this March 21, 2018, file photo, Border Patrol agent Lonnie Swartz, left, arrives at U.S. District Court in downtown Tucson, Ariz., where he stood trial in connection with the shooting death of Jose Antonio Elena Rodriguez, 16. A jury acquitted Swartz of a charge of second-degree murder and deadlocked on a manslaughter charge.  (Ron Medvescek/Arizona Daily Star via AP, File)

And Ginsburg said the effect of Tuesday’s ruling will be to leave those who are killed by Border Patrol agents in cross-border shootings without a legal remedy, effectively giving them immunity.

Tuesday’s ruling is virtually certain to quash a nearly identical lawsuit filed by Araceli Rodriguez 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.

The majority of the 9th Circuit Court of Appeals upheld Rodriguez’ right to sue, saying that U.S. courts “have a compelling interest in regulating its own government agents’ conduct on our own soil.”

But Lee Gelernt, an attorney with the American Civil Liberties Union who is representing Rodriguez, told Capitol Media Services that Tuesday’s Supreme Court decision likely means that his client no longer has a valid claim.

“It appears to leave not very much daylight between our case and Hernandez,” he said.

Gelernt said Tuesday’s ruling will send the Rodriguez case back to the 9th Circuit. He said that, in the interim, he and the other attorneys working the case will look for any differences that might keep this case alive.

“But I think it’s going to be a difficult battle,” Gelernt said.

The federal government separately charged Swartz with second degree murder. A jury acquitted him of that charge but deadlocked on the lesser charge of manslaughter.

Federal prosecutors eventually dismissed the case.

 In this July 29, 2014, file photo, Araceli Rodriguez handles a rosary during a news conference in Nogales, Mexico, that belonged to her son Jose Antonio Elena Rodriguez, pictured behind her, who was shot and killed by a U.S. Border Patrol agent in October 2012. Border Patrol agent Lonnie Swartz will face a second trial Tuesday, Oct. 23, 2018, in the killing of 16-year-old Elena Rodriguez across the international border. Swartz was acquitted of second-degree murder in Tucson earlier in 2018 and now will be tried on voluntary and involuntary manslaughter charges. (Kelly Presnell/Arizona Daily Star via AP, File)

In this July 29, 2014, file photo, Araceli Rodriguez handles a rosary during a news conference in Nogales, Mexico, that belonged to her son Jose Antonio Elena Rodriguez, pictured behind her, who was shot and killed by a U.S. Border Patrol agent in October 2012.  (Kelly Presnell/Arizona Daily Star via AP, File)

In Tuesday’s ruling, Alito said there are lots of reasons to keep U.S. courts from interceding in cross-border incidents.

“The first is the potential effect on foreign relations,” he wrote. “Matters relating to the conduct of foreign relations are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or inference.”

This issue, the justice said, creates a conflict.

“The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale,” Alito said.

“Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals,” he continued. “It is not our tax to arbitrate between them.”

Alito said that, in the absence of judicial intervention, the two countries would attempt to reconcile their interests through diplomacy.

Samuel Alito

Samuel Alito

“And that has occurred,” he said, citing the 2014 creation of a joint Border Violence Prevention Council.

But Ginsburg, writing for herself and three other dissenters, said the majority ruling ignores the crucial facts of the geography of this incident — the same geography that applies in the Nogales case.

She said it is true that the victim was on the Mexican side of the border.

“But Hernandez’s location as the precise moment the bullet landed should not matter one whit,” Ginsburg said, saying the purpose of allowing lawsuits in this kind of situation “is to deter the officer.”

She said that the allegations about the deployment of deadly forces occurred on United States soil.

“It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct – a bullet landing in one half of a culvert, not the other,” Ginsburg wrote.

If nothing else, she said, the United States “unquestionably has jurisdiction to prescribe law governing Border Patrol agent’s conduct.”

Ginsburg also brushed aside the majority’s claim that these kind of lawsuits have a potential impact on foreign relations which, in turn, would require courts to step aside.

“Plaintiffs, however, have brought a civil damages action, no different from one a federal court would entertain had the fatal shot hit Hernandez before he reached the Mexican side of the border,” she said. And while Ginsburg said cross-border shootings can spark bilateral discussion, “but so too does a range  of smuggling and other border-related issues that courts routinely address concurrently with whatever diplomacy may also be addressing them.”

And specifically addressing the Nogales case, Ginsburg said the government cited no negative effects on diplomatic relations after the 9th Circuit gave the go-ahead for Rodriguez to pursue her lawsuit.

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