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A5
U.S. NEWS Wednesday 8 august 2018
Appeals court: No

immunity for agent in

cross-border killing

By ASTRID GALVAN cifically, but more gener-
Associated Press ally that the constitution
PHOENIX (AP) — A federal does not have a hard stop
appeals court has ruled at the border," said ACLU
that a Border Patrol agent attorney Lee Gelernt, who
who fatally shot a Mexican is representing Elena Ro-
teen on the other side of driguez's mother in the civil
the border doesn't have lawsuit. "It's an enormous
immunity and can be sued victory for the family and I
by the boy's family for vio- think for the rule of law at
lating his civil rights. the border."
The ruling on Tuesday has Swartz's attorney, Sean
wide implications and Chapman, did not imme-
came almost two years af- diately respond to requests
ter the agent's attorney ar- for comment. In this Oct. 10, 2014, file photo, a poster in the likeness of Jose
gued he was immune from Elena Rodriguez was in the Antonio Elena Rodriguez hangs next to a makeshift memorial,
a civil lawsuit because the Mexican border town of where he was fatally shot two years ago by U.S. Border Patrol
U.S. Constitution didn't ex- Nogales near the interna- near the Mexico- U.S border, in Nogales, Mexico.
tend to 16-year-old Jose tional border fence when Associated Press
Antonio Elena Rodriguez, Swartz shot him from No- fatally shot a teenager who The 5th U.S. Circuit Court of
who was in Mexico when gales, Arizona, on Oct. 10, was across the border in Ci- Appeals first ruled in favor
agent Lonnie Swartz shot 2012. udad Juarez, Mexico. of Hernandez Guereca's
him about 10 times through An autopsy conducted in Agent Jesus Mesa Jr. was family, then against them,
a border fence. Mexico showed that Elena trying to arrest immigrants before the case made its
The Border Patrol has said Rodriguez was hit about 10 who had illegally crossed way to the Supreme Court
Elena Rodriguez was throw- times in the back. into the country when last year. The high court
ing rocks at Swartz, endan- The ACLU filed a lawsuit on rock-throwers attacked sent the case back to the
gering his life. behalf of the boy's mother him, according to authori- appeals court, saying it
The central question in the in July 2014. ties. Mesa fired across the was best suited to make a
case is whether Elena Ro- The case is similar to a 2010 Rio Grande river, striking decision, but that court dis-
driguez was protected by incident when a Border Pa- 15-year-old Sergio Adrian missed the lawsuit for a sec-
the U.S. Constitution as a trol agent in El Paso, Texas, Hernandez Guereca twice. ond time in March.q
Mexican citizen on Mexi-
can soil.
In a very similar case out
of Texas, a different ap-
peals court has ruled that a
teen boy who was also fa-
tally shot by an agent in a
rock-throwing incident was
not protected by the con-
stitution. That case made
its way to the U.S. Supreme
Court, which appeared to
be divided on the issue and
which sent it back to the
lower court without making
a decision. The lower court
then reaffirmed its decision
that the boy wasn't consti-
tutionally protected.
The 9th U.S. Circuit Court of
Appeals said in its decision
that the agent "violated a
clearly established consti-
tutional right and is thus not
immune from suit."
The conflicting opinions
in the different appeals
courts, both of which cover
cases on the U.S.-Mexico
border, could mean the
Elena Rodriguez case ends
up back in the Supreme
Court.
"This ruling is important both
as to border shootings spe-