ACLU praises appellate court rejection of border patrol officer’s immunity claim

ACLU praises appellate court rejection of border patrol officer’s immunity claim

Protesters in one of more than 700 "Keep Families Together" rallies demonstrate in San Francisco June 30. (Photo courtesy of Fabrice Florin)

WASHINGTON – The American Civil Liberties Union (ACLU) praised a federal appellate ruling Tuesday that upheld a lower court decision denying qualified immunity to a border patrol agent who killed a Mexican teenager in a cross-border shooting.

“The court made clear that the Constitution does not stop at the border and that agents should not have constitutional immunity to fatally shoot Mexican teenagers on the other side of the border fence,” ACLU attorney Lee Gelernt said in a statement. “The ruling could not have come at a more important time, when this administration is seeking to further militarize the border.”

Gelernt argued the case on behalf of the family of Jose Antonio Elena Rodriguez before the U.S. Court of Appeals for the Ninth Circuit.

“It is inconceivable that any reasonable officer could have thought that he or she could kill [Rodriguez] for no reason. Thus, Swartz lacks qualified immunity,” Judge Andrew Kleinfeld wrote in the opinion for the panel.

Rodriguez was shot several times by U.S. Border Patrol Agent Lonnie Swartz on the evening of Oct. 10. 2012. Rodriguez was walking down a street in Nogales, Mexico. The street runs parallel to a fence that marks the U.S. border. Schwartz fired though the fence. Rodriguez died almost instantly.

Qualified immunity protects government officials from being sued for actions undertaken within their official duties. Qualified immunity does not protect those who intentionally violate underlying law or act in an incompetent manner.

The Ninth Circuit opinion upheld the rejection of Swartz’s qualified immunity claim in part because Rodriguez did not appear to represent a threat to Swartz or other border patrol agents.

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