- The Washington Times
Tuesday, August 7, 2018

A Mexican woman whose teenage son was killed in a cross-border shooting can sue a Border Patrol agent in American courts, a federal appeals panel ruled Tuesday in a decision that extends some constitutional rights to foreigners who have never set foot in the U.S.

Security analysts and immigrant rights groups had been watching the case as had Mexican officials, who saw it as a major test of its citizens’ ability to push back against increasingly stiff border security on the U.S. side.

In a strikingly blunt opinion, the western 9th U.S. Circuit Court of Appeals said Mexicans must have recourse in American courts to demand damages for violations of their civil rights, even when the violation occurs across an international boundary.

“We recognize that Border Patrol agents protect the United States from unlawful entries and terrorist threats. Those activities help guarantee our national security. But no one suggests that national security involves shooting people who are just walking down a street in Mexico,” Judge Andrew J. Kleinfeld wrote for the majority in the 2-1 ruling.

The case involves agent Lonnie Swartz, who in 2012 fired a number of shots across the border wall from Nogales, Arizona, into Nogales, Mexico. Ten of his shots hit Jose Antonio Rodriguez, killing him.

Beyond that, many of the facts are in doubt.

Jose’s mother, Araceli Rodriguez, says her son was “innocently” walking the street when he was slain. Mr. Swartz said Jose and others were throwing rocks over the border at him and he was responding with appropriate force.

The government prosecuted Mr. Swartz, saying his response of shooting into Mexico was out of bounds even if he was being hit with rocks.

A jury acquitted him of murder and deadlocked on a manslaughter charge. He will face a retrial on that charge in October.

Ms. Rodriguez, though, has sought her own justice. She argues that she has a right to file a civil rights claim for damages against the agent.

The issue before the appellate judges Tuesday was whether Ms. Rodriguez would be allowed to bring the case in a U.S. court.

The majority said she must have the chance and that she may have valid claims under the Fourth Amendment — the taking of a life is considered a seizure — and under the Fifth Amendment, because the shooting was so heinous.

“We cannot imagine anyone whose conscience would not be shocked by the cold-blooded murder of an innocent person walking down the street in Mexico or Canada by a U.S. Border Patrol agent on the American side of the border,” Judge Kleinfeld wrote.

Brandon Judd, president of the National Border Patrol Council, called the court’s ruling “judicial political activism.”

He pointed to Mr. Swartz’s acquittal for murder. Even prosecutors acknowledged he was being pelted with rocks.

“Unfortunately, we live in a time that even with judges, facts and the law are mere suggestions when they go contrary to one’s personal political ideology,” he said.

All sides expect the issue to reach the Supreme Court, and Mr. Judd expects Tuesday’s ruling to be overturned.

“I believe when all is said and done … the courts will find that persons in another country when an action takes place do not have the right to sue in the United States,” he said.

Another panel, the 5th Circuit, has already ruled that way, finding that a foreigner can’t bring a civil rights challenge against an officer of the U.S. government.

Judge Milan D. Smith Jr., who dissented from Tuesday’s ruling, said his colleagues should have taken a lesson from the 5th Circuit, which covers Texas, Louisiana and Mississippi. Instead, he said, the 2-1 ruling puts the court in “uncharted territory” and upsets the separation of powers between the courts and the other branches of government.

He said the split between the 5th and 9th circuits means the family of a Mexican killed by shots fired by an agent standing in California now has the power to sue, while relatives of a Mexican killed by shots fired by an agent in Texas cannot.

Mexico had pushed for the 9th Circuit’s ruling, saying its residents deserved the ability to sue for damages against overzealous enforcement along the border.

Immigration rights activists also cheered the ruling.

“The court made clear that the Constitution does not stop at the border and that agents should not have constitutional immunity to fatally shoot Mexican teenagers on the other side of the border fence,” said Lee Gelernt, a lawyer for the American Civil Liberties Union. “The ruling could not have come at a more important time, when this administration is seeking to further militarize the border.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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