By Jonathan Stempel
(Reuters) – A U.S. border patrol agent acquitted of murder for shooting a Mexican teenager to death across the Arizona-Mexico border is not immune from civil damages claims by the boy’s mother, a federal appeals court ruled on Tuesday.
The dissenting judge from the 9th U.S. Circuit Court of Appeals’ 2-1 decision accused the majority of ignoring legal precedent and said the Supreme Court may need to weigh in.
Tuesday’s decision allows Araceli Rodriguez to sue the agent Lonnie Swartz over the Oct. 10, 2012 shooting of 16-year-old Jose Antonio Elena Rodriguez.
The boy had been walking down a street in Nogales, Mexico when Swartz, then on duty and standing on an embankment on U.S. soil, fired through a border fence, striking him about 10 times.
Swartz said he acted in self-defense in response to a group of rock throwers, while Rodriguez said her son was walking peacefully.
A Tucson, Arizona federal jury in April acquitted Swartz of second-degree murder, and deadlocked on lesser manslaughter charges. A retrial on those charges was scheduled for Oct. 23.
In the civil case, a lower court judge rejected Swartz’s claim of qualified immunity, and said Rodriguez could seek damages for violations of her son’s constitutional rights.
During his appeal, Swartz adopted an argument offered by the U.S. Department of Justice that Rodriguez lacked a so-called “Bivens” claim against him for violating the Fourth Amendment.
But in Tuesday’s majority opinion, Circuit Judge Andrew Kleinfeld found it “inconceivable that any reasonable officer” to think he or she could kill Elena Rodriguez, as the mother suggested, “for no reason.”
Kleinfeld distinguished a 1990 Supreme Court precedent limiting the Fourth Amendment’s extraterritorial reach, saying Swartz “acted on American soil subject to American law” and it was “clearly established” he could not shoot across the border. He also said Swartz’s conduct might “shock the conscience.”
Swartz’s lawyer Sean Chapman did not immediately respond to requests for comment. A Justice Department spokesman declined to comment.
“The court made clear that the Constitution does not stop at the border,” said Lee Gelernt, an American Civil Liberties Union lawyer representing Rodriguez. “The ruling could not have come at a more important time, when [the Trump] administration is seeking to further militarize the border.”
Circuit Judge Milan Smith dissented, saying it was for Congress to extend Bivens, and that another federal appeals court reached the opposite result in a similar case.
He said the majority “tees up our court for a new ‘chastening'” by the Supreme Court, known for often reversing 9th Circuit decisions.
The case is Rodriguez v Swartz, 9th U.S. Circuit Court of Appeals, No. 15-16410.
(Reporting by Jonathan Stempel in New York; Editing by Susan Thomas)
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