Ninth Circuit rules Mexican mother can sue over cross-border Border Patrol shooting

Rebecca Morin on Politico reports that a federal court ruled yesterday that a woman whose son was killed on Mexican soil by a U.S. Border Patrol agent in Arizona can sue for damages.  The U.S. Court of Appeals for the Ninth Circuit ruled that Border Patrol agent Lonnie Swartz is not entitled to qualified immunity, saying that the Fourth Amendment — which prohibits unreasonable searches and seizures — applies in this case.

“Based on the facts alleged in the complaint, Swartz violated the Fourth Amendment. It is inconceivable that any reasonable officer could have thought that he or she could kill J.A. for no reason,” Judge Andrew J. Kleinfeld wrote in the majority opinion. “Thus, Swartz lacks qualified immunity.”

Judge Milan Smith dissented, finding that a constitutional remedy did not apply to this cross-border incident.  He notes a circuit split, with the Fifth Circuit finding no remedy in the similar case of Hernandez v. Mesa,  on the question emerging with the majority’s ruling.  

The majority summarized the facts alleged in the complaint as follows:

Swartz was an on-duty U.S. Border Patrol agent stationed on the American side of the border fence. J.A. was a Mexican citizen walking down a street in Mexico. Swartz fired his pistol through the border fence into Mexico. He intentionally killed J.A. without any justification. Swartz acted entirely from within the United States, but J.A. was in Mexico when Swartz’s bullets struck and killed him. Swartz did not know J.A.’s citizenship or whether he had substantial connectionsto the United States, so for all Swartz knew, J.A. could have been an American citizen.

KJ