PHOENIX (AP) — A government attorney argued Friday that the mother of a 16-year-old Mexican boy killed by a U.S. Border Patrol agent in a cross border shooting should not be allowed to sue the agent because the boy lacked significant ties to the United States.
But a lawyer for the mother countered that the boy's grandmother cared for him while she was a legal permanent U.S. resident.
The arguments before a panel of the 9th U.S. Circuit Court of Appeals in San Francisco stem from the October 2012 shooting of Jose Antonio Elena Rodriguez by Border Patrol agent Lonnie Swartz, who opened fire from Arizona and hit Elena Rodriguez in Mexico.
A federal judge in Arizona decided that the lawsuit could go forward, but Swartz's attorney, Sean Chapman, appealed that decision.
The U.S. government is not part of the civil case but has filed court paperwork as an interested party and was allowed to argue before the three-judge appeals court panel.
In a separate case, Swartz is charged with second-degree murder, and has pleaded not guilty.
The appeals court said it will not make a decision until after the U.S. Supreme Court hears a similar case involving a Mexican teen shot by a Border Patrol agent at the Texas and Mexico border. The high court is scheduled to take up that case next year.
Elena Rodriguez was in the Mexican border town of Nogales, walking near the international border fence when Swartz shot him from Nogales, Arizona, on Oct. 10, 2012.
The Border Patrol has said Swartz was defending himself against rock-throwers. Elena Rodriguez's family says he was walking home after playing basketball with friends and did not throw anything.
An autopsy conducted in Mexico showed that Elena Rodriguez was hit about 10 times in the back. U.S. Customs and Border Protection has refused to release surveillance camera footage of the incident.
The ACLU filed a lawsuit on behalf of the boy's mother in July 2014 while the FBI continued to investigate the shooting.
Last year, Swartz was indicted for second-degree murder. He has pleaded not guilty, and his trial is scheduled for end of February.
Swartz is free pending trial and is on unpaid administrative leave from the agency. He was forced to surrender his Border Patrol pistol.
The case is similar to a 2010 incident when a Border Patrol agent in El Paso, Texas, fatally shot a teenager who was across the border in Ciudad Juarez, Mexico.
Authorities said agent Jesus Mesa Jr. was trying to arrest immigrants who had illegally crossed into the country when rock-throwers attacked him. Mesa fired across the Rio Grande river, striking 15-year-old Sergio Adrian Hernandez Guereca twice.
A three-judge panel of the 5th U.S. Circuit Court of Appeals originally said Hernandez Guereca's family could sue Mesa.
But the full court overturned that ruling, and the Supreme Court will review the case next year.
OBAMA ADMINISTRATION POSITION
The U.S. Justice Department brought forward the criminal case against Swartz but also opposes the civil suit filed against him.
In court documents submitted in February, government attorneys argued Elena Rodriguez's family did not have a constitutional right to sue in part because it lacked "significant voluntary connections" to the United States.
At Friday's hearing, Department of Justice attorney Henry Whitaker argued that Elena Rodriguez had no significant connection to the United States because he never lived in the country.
THE ACLU'S TAKE
Lee Gelernt, an ACLU lawyer argued that Nogales in Mexico's Sonora state and Nogales in Arizona are closely intertwined and that Elena Rodriguez was often cared for by his grandmother, who lives in the United States.
She was a permanent legal resident in the U.S. while she cared for him and is now an American citizen, he said.
Gelernt said in an interview with The Associated Press that the criminal prosecution of Swartz should not be a substitute for a civil rights case.
"The executive branch cannot police itself. That is not in the interest of the country and is contrary to the basic principles underlying our constitution," Gelernt said.