Kelly Presnell/ Arizona Daily Star by means of AP
In this July 29, 2014, file photo, Araceli Rodriguez deals with a rosary that came from her child Jose Antonio Elena Rodriguez, visualized behind her, who was shot and killed by U.S. Border Patrol representative in October 2012, during a press conference in Nogales, Mexico.
Thursday, July 9, 2015|10:55 p.m.
TUCSON, Ariz.– The mother of a Mexican teen killed by a U.S. Border Patrol agent in a cross-border shooting can continue a lawsuit in the case, a federal judge has ruled.
The civil liberties case versus Agent Lonnie Swartz over the death of 16-year-old Jose Antonio Elena Rodriguez will certainly move forward after U.S. District Court Judge Raner C. Collins denied a part of his motion to dismiss the case.
A lawyer for Swartz said that Elena Rodriguez was not secured by the U.S. Constitution due to the fact that he remained in Mexico at the time of the shooting.
In a similar case in Texas, a federal appeals court ruled that a teen eliminated in Mexico by a border agent in El Paso was not protected by the Constitution.
But Collins wrote he respectfully disagrees with that finding.
“The Court discovers that, under the realities alleged in this case, the Mexican national might avail himself to the protections of the 4th Change which the representative might not assert certified resistance,” Collins wrote.
The ACLU submitted a suit on behalf of the child’s mother. Elena Rodriguez remained in Nogales, Sonora, near a border fence when Swartz shot him from Nogales, Arizona, on Oct. 10, 2012.
The Border Patrol has actually stated Swartz was safeguarding himself versus rock-throwers. Elena Rodriguez’s family says he had not been involved in any misdeed.
Swartz has actually not been charged, and an investigation by the FBI is continuous. He is still a representative with the Border Patrol, his attorney, Sean Chapman, stated after a hearing in May.
In his motion to dismiss, Chapman composed that the teenager was not entitled to constitutional securities since Elena Rodriguez “neither came within the territory of the United States nor developed considerable connections with this country to justify its extraterritorial application.”
Chapman could not be grabbed comment late Thursday night. James Lyall, an ACLU attorney on the case, praised the ruling.
“The court was right to recognize that constitutional defenses don’t stop at the border which Border Patrol representatives can not shoot throughout the border with impunity,” Lyall stated.
In the Texas case, a federal appeals court found the family of another Mexican teen killed by an agent can not take legal action against in the United States. U.S. Border Patrol representative Jesus Mesa Jr. shot 15-year-old Sergio Adrian Hernandez Guereca in June 2010 near a bridge between El Paso, Texas, and Ciudad Juarez, Chihuahua. Authorities said Mesa was trying to jail immigrants who had illegally crossed into the country when rock-throwers attacked him. Mesa fired his weapon throughout the Rio Grande, striking Hernandez Guereca two times.
A three-judge panel of the Fifth U.S. Circuit Court of Appeals initially said Hernandez Guereca’s family could take legal action against Mesa. But the complete court reversed that judgment in April.