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| Justice for José? Border shooting of Mexican teen raises constitutional issue | Justice for José? Border shooting of Mexican teen raises constitutional issue |
| (about 1 hour later) | |
| Anger, pain and disbelief rang in the voice of Araceli Rodríguez as she talked about her son’s killing by an American agent, whose 10 rounds shot through a border fence have raised questions over policing and whether the US constitution can apply to a Mexican teenager on foreign soil. | Anger, pain and disbelief rang in the voice of Araceli Rodríguez as she talked about her son’s killing by an American agent, whose 10 rounds shot through a border fence have raised questions over policing and whether the US constitution can apply to a Mexican teenager on foreign soil. |
| “He’s still a part of me,” Rodríguez said of her son, José Antonio Elena Rodríguez, who was 16 when border patrol agent Lonnie Swartz shot him dead in October 2012. “Even though he’s not here he’s still my son in spirit, in soul, in thoughts, in words. My son, my son, my son.” | “He’s still a part of me,” Rodríguez said of her son, José Antonio Elena Rodríguez, who was 16 when border patrol agent Lonnie Swartz shot him dead in October 2012. “Even though he’s not here he’s still my son in spirit, in soul, in thoughts, in words. My son, my son, my son.” |
| She remembered him in terms any mother would find familiar, through his hopes and everyday joys. | She remembered him in terms any mother would find familiar, through his hopes and everyday joys. |
| “He liked cloudy days, chocolate cookies, spending time with his sisters,” she said. “He was a 16-year-old boy who would today be 19, full of passion for life [and] love. He wanted to be a soldier, to serve his country, to know what life is. | “He liked cloudy days, chocolate cookies, spending time with his sisters,” she said. “He was a 16-year-old boy who would today be 19, full of passion for life [and] love. He wanted to be a soldier, to serve his country, to know what life is. |
| “He was a wonderful son, and they snatched that away from in a moment. It’s unforgivable.” | “He was a wonderful son, and they snatched that away from in a moment. It’s unforgivable.” |
| Rodríguez’s grief has turned to anger and bafflement over the delays and twists of the American justice system. | Rodríguez’s grief has turned to anger and bafflement over the delays and twists of the American justice system. |
| “I don’t see the case to have a trial, or why there are so many questions when it’s clear that he was murdered,” she said. “I’m not just saying that – it’s a reality. They threw away his life.” | “I don’t see the case to have a trial, or why there are so many questions when it’s clear that he was murdered,” she said. “I’m not just saying that – it’s a reality. They threw away his life.” |
| But to the US, José Antonio’s killing raises serious and knotty questions about the role of the border patrol and the potential impunity of its agents when acting on one side of the border with effects on the other. | But to the US, José Antonio’s killing raises serious and knotty questions about the role of the border patrol and the potential impunity of its agents when acting on one side of the border with effects on the other. |
| Last year, with a federal investigation dragging on and the statute of limitations for a civil suit drawing near, Rodríguez sued in federal court. She aims to bring evidence against Swartz before a judge and jury. | Last year, with a federal investigation dragging on and the statute of limitations for a civil suit drawing near, Rodríguez sued in federal court. She aims to bring evidence against Swartz before a judge and jury. |
| “The whole world knows what justice would be,” she said. “To have my son’s killers pay for what they did, that would be justice.” | “The whole world knows what justice would be,” she said. “To have my son’s killers pay for what they did, that would be justice.” |
| Agents rushed in | Agents rushed in |
| Although the Justice Department has refused to release its video of what happened at the border on the night of 10 October 2012, Rodríguez’s attorneys have pieced together events from witness accounts. Neither the government nor Swartz’s attorney have disputed this version of the facts. | |
| José Antonio was walking down a road along the border fence in Nogales, Mexico, the attorneys say, as border patrol agents and local police officers swarmed in response to a 911 call about men scrambling across the border. As those men climbed the 18ft fence back into Mexico, agents rushed in. The police report on the incident says that people began to throw rocks. | |
| As the suspects ran past Rodríguez, Swartz reached the fence, pointed his gun through a small gap between posts, and fired his weapon 12 times. He hit the teenager with 10 rounds, an autopsy showed – eight of them in the back. Rodríguez died about 30ft from the bluff on which the fence stands. | As the suspects ran past Rodríguez, Swartz reached the fence, pointed his gun through a small gap between posts, and fired his weapon 12 times. He hit the teenager with 10 rounds, an autopsy showed – eight of them in the back. Rodríguez died about 30ft from the bluff on which the fence stands. |
| The border patrol initially suggested that Rodríguez was among those throwing rocks. Witnesses said the teen was only walking home from playing basketball. | The border patrol initially suggested that Rodríguez was among those throwing rocks. Witnesses said the teen was only walking home from playing basketball. |
| The federal government quickly announced it would investigate whether Swartz had used excessive force. An investigation continues and was cited in the government’s choice not to comment for this story. When Rodríguez’s mother sued, the Justice Department recused itself from defending Swartz, saying he could still face criminal charges. | The federal government quickly announced it would investigate whether Swartz had used excessive force. An investigation continues and was cited in the government’s choice not to comment for this story. When Rodríguez’s mother sued, the Justice Department recused itself from defending Swartz, saying he could still face criminal charges. |
| Swartz’s attorney, Sean Chapman, also declined to comment on pending litigation. But he argued in court that although the shooting was “horrible and tragic”, his client could not be held liable. He urged the judge to dismiss the case outright, arguing the US constitution did not apply to foreign citizens on foreign soil, at least until the supreme court explicitly stated otherwise. | Swartz’s attorney, Sean Chapman, also declined to comment on pending litigation. But he argued in court that although the shooting was “horrible and tragic”, his client could not be held liable. He urged the judge to dismiss the case outright, arguing the US constitution did not apply to foreign citizens on foreign soil, at least until the supreme court explicitly stated otherwise. |
| Cross-border impunity | Cross-border impunity |
| “The attorney is saying that the day the agent shot José Antonio he was protected, because from a constitutional perspective there was no clearly established law,” said Luís Parra, a lawyer for the Rodríguez family. | “The attorney is saying that the day the agent shot José Antonio he was protected, because from a constitutional perspective there was no clearly established law,” said Luís Parra, a lawyer for the Rodríguez family. |
| “We’re of the opinion that that’s absurd. The agent would be acting with total impunity, and we reject that. The family rejects that. They want justice. They want the Department of Homeland Security to start being transparent about what their officers are doing.” | “We’re of the opinion that that’s absurd. The agent would be acting with total impunity, and we reject that. The family rejects that. They want justice. They want the Department of Homeland Security to start being transparent about what their officers are doing.” |
| The Rodríguez legal team alleges that Swartz violated both the fourth and fifth amendments of the constitution, because he shot Rodríguez without justification, and say that in the right circumstances, the US constitution protects foreigners abroad. | The Rodríguez legal team alleges that Swartz violated both the fourth and fifth amendments of the constitution, because he shot Rodríguez without justification, and say that in the right circumstances, the US constitution protects foreigners abroad. |
| What I want to ask the American authorities is: What is your law, then? What does justice mean to you? | |
| Lee Gelernt, a senior attorney with the American Civil Liberties Union and a professor at Fordham University, argued the case in court this week. | Lee Gelernt, a senior attorney with the American Civil Liberties Union and a professor at Fordham University, argued the case in court this week. |
| “The constitution applies because the border patrol agent was on US soil,” Gelernt told the Guardian. “The only thing that happened in Mexico was the bullet hitting the young man. The test the supreme court has set for determining when the constitution applies to an action across the border is a very practical test.” | “The constitution applies because the border patrol agent was on US soil,” Gelernt told the Guardian. “The only thing that happened in Mexico was the bullet hitting the young man. The test the supreme court has set for determining when the constitution applies to an action across the border is a very practical test.” |
| Gelernt asked the judge to weigh the facts of the case, and not to set a “bright line rule” saying the constitution does not apply “because José Antonio was a Mexican citizen on Mexican soil and that that’s the heart of it”. | Gelernt asked the judge to weigh the facts of the case, and not to set a “bright line rule” saying the constitution does not apply “because José Antonio was a Mexican citizen on Mexican soil and that that’s the heart of it”. |
| “A bright line rule would have enormous ramifications,” Gelernt said, before laying out Chapman’s argument. “He’s saying an agent can shoot on the US side but can’t be hit with constitutional liability – even though the actions may have been criminal, even on US soil, with the gun up to the fence, and shots through the fence that killed a civilian Mexican teenager for no reason.” | “A bright line rule would have enormous ramifications,” Gelernt said, before laying out Chapman’s argument. “He’s saying an agent can shoot on the US side but can’t be hit with constitutional liability – even though the actions may have been criminal, even on US soil, with the gun up to the fence, and shots through the fence that killed a civilian Mexican teenager for no reason.” |
| In the 2008 case Boumediene v Bush, the supreme court ruled that the constitution extends beyond US territory except in “impractical or anomalous” circumstances. Gelernt contrasted that case, which dealt with Guantánamo Bay, and this one: “This was not a military case. José Antonio was not accused of a crime, he was not sneaking over the border, and he had the right not to be arbitrarily killed.” | In the 2008 case Boumediene v Bush, the supreme court ruled that the constitution extends beyond US territory except in “impractical or anomalous” circumstances. Gelernt contrasted that case, which dealt with Guantánamo Bay, and this one: “This was not a military case. José Antonio was not accused of a crime, he was not sneaking over the border, and he had the right not to be arbitrarily killed.” |
| In court, Chapman brought up a more recent case: that of a 15-year-old boy, Sergio Adrian Hernández, who was shot dead in an altercation with the border patrol in 2010. In April a federal appeals court ruled that the teen’s family could not sue because the fourth amendment could not be asserted by a Mexican citizen on Mexican soil. | In court, Chapman brought up a more recent case: that of a 15-year-old boy, Sergio Adrian Hernández, who was shot dead in an altercation with the border patrol in 2010. In April a federal appeals court ruled that the teen’s family could not sue because the fourth amendment could not be asserted by a Mexican citizen on Mexican soil. |
| On the fifth amendment, the five judges of the fifth circuit ruled: “No case law in 2010, when this episode occurred, reasonably warned [the agent] that his conduct violated the fifth amendment.” | On the fifth amendment, the five judges of the fifth circuit ruled: “No case law in 2010, when this episode occurred, reasonably warned [the agent] that his conduct violated the fifth amendment.” |
| “We may not like it, but the law is the law,” Chapman said. | “We may not like it, but the law is the law,” Chapman said. |
| The ambiguity in the law may yet come before the supreme court again, however, since the losing side in the Rodríguez case will likely appeal, raising the case to a higher court. | The ambiguity in the law may yet come before the supreme court again, however, since the losing side in the Rodríguez case will likely appeal, raising the case to a higher court. |
| Should the ninth circuit appeals court eventually rule in that the constitution applied to Rodríguez, contradicting the fifth circuit ruling, the case could force the supreme court to resolve questions of impunity and the constitutional rights of non-Americans abroad. | Should the ninth circuit appeals court eventually rule in that the constitution applied to Rodríguez, contradicting the fifth circuit ruling, the case could force the supreme court to resolve questions of impunity and the constitutional rights of non-Americans abroad. |
| Overlooked killings | Overlooked killings |
| Recent reports and investigations into the use of force by the border patrol have produced damning conclusions. In 2013 a Customs and Border Protection review found that between 67 reported abuses, including 19 that resulted in deaths, the border patrol showed a “lack of diligence” and that agents often shot at suspects in cars, endangering bystanders, passengers and each other. | Recent reports and investigations into the use of force by the border patrol have produced damning conclusions. In 2013 a Customs and Border Protection review found that between 67 reported abuses, including 19 that resulted in deaths, the border patrol showed a “lack of diligence” and that agents often shot at suspects in cars, endangering bystanders, passengers and each other. |
| An investigation by the Arizona Republic found that between 2005 and 2013 at least 42 people were killed by border patrol and customs officers, including 13 Americans. Officials said at the time that agents who used excessive force were disciplined, but the investigation noted that “in none of the 42 deaths is any agent or officer publicly known to have faced consequences”. | An investigation by the Arizona Republic found that between 2005 and 2013 at least 42 people were killed by border patrol and customs officers, including 13 Americans. Officials said at the time that agents who used excessive force were disciplined, but the investigation noted that “in none of the 42 deaths is any agent or officer publicly known to have faced consequences”. |
| The Mexican government has lodged complaints about several of the shootings, and in January backed the Hernández family in court. | The Mexican government has lodged complaints about several of the shootings, and in January backed the Hernández family in court. |
| Border patrol officials say their use-of-force policy mandates that agents not fire their weapons absent a “reasonable belief” of “imminent danger”. As in the cases of police officers accused of abuses, agents have cited this controversial grey area in the rule when explaining their actions in deadly incidents. | Border patrol officials say their use-of-force policy mandates that agents not fire their weapons absent a “reasonable belief” of “imminent danger”. As in the cases of police officers accused of abuses, agents have cited this controversial grey area in the rule when explaining their actions in deadly incidents. |
| Luís Parra drew comparisons between the federal agency and police departments, noting that with more than 21,000 agents, the border patrol amounts to one of the largest police forces in the nation, second only to the NYPD and nearly twice as large as the Chicago PD. | Luís Parra drew comparisons between the federal agency and police departments, noting that with more than 21,000 agents, the border patrol amounts to one of the largest police forces in the nation, second only to the NYPD and nearly twice as large as the Chicago PD. |
| “You look at the cases out of Missouri, New York and Baltimore, and the set of facts that occurred here, and you would believe that there would be a huge uproar about José Antonio,” Parra said, referring to recent, high-profile deaths of African American men at the hands of police. | “You look at the cases out of Missouri, New York and Baltimore, and the set of facts that occurred here, and you would believe that there would be a huge uproar about José Antonio,” Parra said, referring to recent, high-profile deaths of African American men at the hands of police. |
| “And in those cases there are at least answers, if not justice. It’s been a real frustration to the family not having an answers as to why this 16-year-old boy was shot 10 times, eight times in the back.” | “And in those cases there are at least answers, if not justice. It’s been a real frustration to the family not having an answers as to why this 16-year-old boy was shot 10 times, eight times in the back.” |
| Araceli Rodríguez vented that frustration at length, posing rhetorical questions that the US courts are taking literally. | Araceli Rodríguez vented that frustration at length, posing rhetorical questions that the US courts are taking literally. |
| “What I want to ask the American authorities is: ‘What is your law, then? What does justice mean to you? What could be more important than justice?’ | |
| “They know they have murderers working for them and they still pay and protect them.” | “They know they have murderers working for them and they still pay and protect them.” |
| She said she still felt hope, despite the long road through the courts ahead. | She said she still felt hope, despite the long road through the courts ahead. |
| “I don’t want my son to be forgotten,” she said. “I want people to keep talking.” | “I don’t want my son to be forgotten,” she said. “I want people to keep talking.” |