ACLU says border agent obligated to respond to wrongful death claim

PHOENIX -- Allowing a Border Patrol agent to escape civil liability for shooting a teen through the border fence and killing him would expose other area residents to the same danger, an attorney for the teen's mother told federal judges Friday.

Lee Gelernt of the American Civil Liberties Union contends Lonnie Swartz should be forced to answer the wrongful death claim filed by the mother of 16-year-old Jose Antonio Elena Rodriguez.

He acknowledged that the boy was not in the United States when shot in 2012 nor had he just fled over the fence. In fact, there was no evidence the boy had ever even been in this country or that he wanted to live in this country.

But Gelernt told the 9th U.S. Circuit Court of Appeals that's legally irrelevant.

"We don't think that you need to want to live in the U.S. to not be shot across the border,'' he said.

Potentially more significant, Gelernt warned the three-judge panel it would set a bad precedent to allow Swartz -- and anyone else who fires shots across the border -- to escape civil liability.

He pointed out the boy was walking along Calle Internacional, a major street in Nogales, Son., which runs parallel and adjacent to the border fence.

"This is a community that has to walk along this street all the time,'' Gelernt said. He said their right against being shot by a federal employee with a government weapon should not be dependent on having some contact with the United States, like asking for health care benefits.

"They're just saying that they don't want to be shot when they walk to the store or go to the doctor along the border which it's inescapable that they have to do,'' Gelernt said. "They cannot be asked to have to assume the risk of being shot every time they walk along the main thoroughfare.''

Swartz has separately been charged with second degree murder, with that case pending before a federal judge in Tucson.

But Swartz, who is on administrative leave, is trying to get the indictment dismissed. And Gelernt said even if Swartz is convicted, that is not the same as giving civil relief to the boy's family.

The judges are not expected to rule any time soon.

The U.S. Supreme Court earlier this month agreed to hear a similar case out of Texas where a Border Patrol agent in 2010 shot and killed a Mexican teen playing in a culvert that separates El Paso from Juarez. The 5th Circuit Court of Appeals ruled last year the parents cannot pursue their claim against Jesus Mesa Jr. because the boy, Sergio Hernandez, was a Mexican citizen "who was on Mexican soil at the time he was shot.''

Appellate Judge Milan Smith Jr. said the 9th Circuit court will be bound by whatever the Supreme Court rules.

But Smith pointed out that there are still only eight justices on the high court, what with the U.S. Senate refusing to consider the nomination of Merrick Garland by President Obama. And Smith said if the high court splits 4-4 on that Texas case, there will be no precedent set, freeing the 9th Circuit to reach its own conclusion.

The issue before the judges here is not whether Swartz fired the shots, 10 of which an autopsy showed entered from the back, which at this point is not being disputed. Swartz contends the boy was throwing rocks across the border, a contention his family denies.

What is at issue is whether there is a legal remedy for the boy's mother in U.S. courts.

Sean Chapman, Swartz's attorney, said the boy died in Mexico. And Chapman said he had no "significant ties'' to the United States, paid no taxes nor assumed no "societal obligations.''

He did acknowledged that the boy's grandmother, a U.S. resident, did go to Mexico -- the frequency of which is under dispute -- to take care of the boy from time to time.

But Chapman said that's not enough to extend the protections of the U.S. Constitution to the boy. And he said there is no U.S. Supreme Court case to the contrary.

Judge Andrew Kleinfeld said using that standard raises serious questions.

"Could any policeman of any type imagine that he has the right to kill people arbitrarily, whether they're in America or over the border?'' he asked. "I just can't imagine the Supreme Court saying, 'Well, since we didn't have a case directly on point yet, a policeman wouldn't have know he can't take arbitrary potshots at Mexicans.' ''

Swartz's contention he cannot be sued is being supported by the U.S. Department of Justice. Assistant Attorney General Henry Whitaker told the court the location of the shooting, coupled with the boy's lack of contact with this country, means federal courts have no jurisdiction.

Kleinfeld said, though, that ignores a critical fact.

"Every bit of the policeman's conduct took place within the United States,'' the judge said. Whitaker said that does not matter.

"I don't think the fact the shooting occurred on U.S. land means that all the conduct occurred within the United States,'' he responded.

The outcome could hinge on how the 9th Circuit -- and possibly the U.S. Supreme Court -- interprets two provisions of the U.S. Constitution.

U.S. District Court Judge Raner Collins previously ruled that the boy was entitled to protections under the Fourth Amendment which precludes illegal search and seizure, a category that in this context includes wrongful death. Collins also concluded Swartz is not entitled to 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.

But Kleinfeld said there may also be a claim under the Fifth Amendment which protects individuals against being deprived of life or liberty "without due process of law.'' And Kleinfeld noted that amendment refers to "any person'' with no mention of U.S. citizenship.

Gelernt has an alternate theory of why Swartz can be sued in federal court. He said the United States has practical control of the area immediately inside Mexico, not only because its cameras and helicopters look into the area but specifically because the gunfire of federal agents can reach that far.

Kleinfeld, however, said by that logic U.S. courts would have jurisdiction of "anything within artillery range.'' And he said that would give U.S. judges the power over most Canadians as the vast majority live along the border.

On Twitter: @azcapmedia

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