Judge Rules Family of Mexican Teen Shot By Border Patrol Can Sue

Jul 10, 2015, 14:50 ET from Hilliard Munoz Gonzales LLP

CORPUS CHRISTI, Texas, July 10, 2015 /PRNewswire/ -- Yesterday, a federal judge in Arizona, the Honorable Raner C. Collins, ruled that the mother of a Mexican teenager who was shot and killed across the border by a U.S. Border Patrol agent may maintain her lawsuit in federal court.

Araceli Rodriguez filed suit on behalf of her son, 16-year-old Jose Antonio Elena Rodriguez, after Agent Lonnie Swartz shot and killed the boy in the cross-border shooting.  Attorneys for Swartz contended that Elena Rodriguez was not entitled to constitutional protection because he was in Mexico at the time of the shooting.  In support, Swartz' attorneys cited Hernandez v. United States, 785 F.3d 117 (5th Cir. 2015) (en banc), where the Fifth Circuit ruled that a Mexican teen killed by a Border Patrol agent in El Paso was not protected by the Constitution.

Judge Collins disagreed with the ruling in Hernandez, "The Court finds that, under the facts alleged in this case, the Mexican national may avail himself to the protections of the Fourth Amendment and that the agent may not assert qualified immunity."

Robert C. Hilliard, attorney for the plaintiff in the Hernandez case, believes Judge Collins reached the correct decision. "Judge Collins' opinion underscores the legal loopiness of the Hernandez decision. The fundamental thought process allowing for the conclusion that border patrol agents are free to shoot across an international border with the intent of killing an innocent person, yet whether the agent will face civil consequences for their actions is dependent on the nationality of the person murdered is beyond the pale. As the agent has no way to know if he is shooting an American citizen or not, the Hernandez opinion allows for that determination to control the right to justice."

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