Can US Agents Be Held Liable For Cross-Border Killings? It Depends On The State.

At the heart of the United States Constitution is a question as old as time: “quis custodiet ipsos custodes?”  For decades, this was the Latin phrase for any worthwhile skeptic, unwilling to grant a select few individuals unlimited oversight powers without the proper safeguards in place. Although this language eventually died, the translation lived on as a valid truth throughout judicial history: “who will be there to watch the watchmen?”

On the 10th of October 2012, a 16-year-old boy by the name of Jose Antonio Elena Rodriguez was a victim of such unchecked watchmen. According to a new report from The New York Times, Rodriguez was walking home alone at night when he was shot approximately 10 times through the U.S. border fence by one of the nation’s Border Patrol agents. He was murdered, drowning in a pool of blood with bullets in his back, only a few blocks away from his family’s house in Nogales, Mexico.

The border agent, Lonnie Swartz, made the argument that it was self-defense. He claims he mistook multiple teenagers, who were allegedly throwing rocks at the law enforcement agents, for random drug smugglers who tried crossing over the border using childish antics.

Elena Rodríguez, the boy’s mother, doesn’t believe the watchman’s narrative.

Working with attorneys tied to the ACLU, the team argued that Rodríguez’s body was over 25 feet away from the sheer cliff where the border fence resides. They continue that the fence, built on the opposite side of the street, has watchtowers that are approximately 40–50 feet above street level, giving credence to her narrative that the boy was “peaceful” and posed no legitimate threat to the officers before they shot.

This case, which has since spanned several years, should have already been resolved. In early August, the U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, ruled that Mrs. Rodríguez could sue Swartz for a violation of her son’s fourth amendment right to be free of excessive force by the state. Judge Andrew Kleinfeld wrote for the majority saying, based on all the presented evidence, “this is simple and straightforward murder.”

The dissent, represented in Judge Milan Smith, argued it’s ridiculous to have differing constitutional interpretations and selective enforcement across the states. He cited the similar Texas case of Sergio Hernández Guereca, another Mexican boy of 15-years-old who was shot in the back of the head by a U.S. border patrol officer for the same crime of throwing rocks.

“This is not a close case,” Judge Edith Jones wrote for the majority ruling in March. She argued that “aliens injured abroad” could only sue if Congress passed a law allowing such compensation. Without such a law, she wrote, federal courts should not “interfere with the political branches’ oversight of national security and foreign affairs.”

The Guereca family was not allowed to sue, but the same can’t be said off Rodríguez. “This is an untenable result,” wrote Judge Smith in his recent dissenting opinion, urging the Supreme Court to resolve this contradiction for cross-country murder and the scale of constitutional protections.

As these conflicting state rulings continue to spawn, the question as to whether the constitution guarantees all people this freedom from excessive force is now stuck in limbo. Now it’s upon the justices of the majority-conservative U.S. Supreme Court to decide this newly divided fundamental: Is a Mexican citizen murdered on Mexican soil by U.S. border agents protected by the United States Constitution? Or is it open season for those who dare throw stones at gun-toting border guards?

This will be the framework of Hernandez v. Mesa and Rodriguez v. Swartz when they’re reviewed among the deciding SCOTUS justices. Whether these boys will get their justice under this Trump controlled court, however, is anything but certain.

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