The Trump administration wants the U.S. Supreme Court to conclude that the mother of a Mexican teen shot by a Border Patrol agent through the fence at Nogales has no right to sue.
In a legal brief filed Thursday, Solicitor General Noel Francisco told the justices that the 9th U.S. Circuit Court of Appeals got it wrong when it found that Araceli Rodriguez has a right to bring her claim in federal courts even though her son Jose Antonio Elena Rodriguez was shot and died in Mexico.
Francisco said there is a presumption against federal courts exercising jurisdiction over events that did not occur in this country. The factors cited by the 9th Circuit in giving the mother the right to sue do not override that presumption, he said.
The high court will decide the issue because the 5th Circuit, hearing a similar case out of Texas, concluded there was no right of the survivors to sue — a ruling Francisco said the court there got right.
Elena Rodriguez, 16 at the time, was in Mexico, near the international border fence in Nogales, when Lonnie Swartz fatally shot him from the Arizona side on Oct. 10, 2012.
Swartz’s attorney, Sean Chapman, has argued here — as he did in a parallel criminal case —that the agent was defending himself against rock throwers when he fired his service revolver.
Evidence presented in that case shows that Elena Rodriguez was hit 10 times in the back. Swartz reloaded, firing a total of 16 shots.
In that criminal case, federal prosecutors decided that they could bring charges against Swartz for the actions he took on this side of the border. He eventually was acquitted of charges of second-degree murder and manslaughter.
But the civil case is different, with the government essentially a defendant and potentially financially responsible because of Swartz’s status as a federal employee.
Last year, in a 2-1 ruling, the 9th Circuit sided with the family.
“We have a compelling interest in regulating our own government agents’ conduct on our own soil,” wrote Judge Andrew Kleinfeld for himself and Edward Korman. He said that gives federal courts jurisdiction here.
“Applying the Constitution in this case would simply say that American officers must not shoot innocent, non-threatening people for no reason,” the judge wrote.
“Enforcing that rule would not unduly restrict what the United States could do either here or abroad.”
Francisco, in his new legal brief, does not mention the criminal case or the fact that the government prosecuted Swartz. Instead, he told the justices that they should consider — and agree with — the dissent filed in the 9th Circuit ruling by Judge Milan Smith.
Smith said cross-border incidents implicate foreign relations and border security, both of which are the prerogatives of the political branches of government, not the judicial branch.
Smith did not necessarily dispute that, absent being able to sue in federal court, the teen’s mother would have no legal recourse. But he said that lack of a legal remedy “cannot, on its own, compel judicial creation of a damages remedy.”
