Border agent shoots and kills 16-year-old across Mexican border and federal court tests family right to sue

In October 2012, Jose Antonio Elena Rodriguez, a 16-year-old Mexican boy, was walking on a road meters from the Arizona border when a U.S. Border Patrol agent on the U.S. side shot and killed him. A federal court will soon decide whether a foreign national bring claims under the U.S. Constitution for an incident that happened on foreign soil? There is an expanding effort by immigration advocates to define rights of aliens under our Constitution.

The U.S. government and Jose’s mother agree the shooting wasn’t justified and The Justice Department has charged the agent with second-degree murder. He has pleaded not guilty.

Justice Department lawyers argue extending the Fourth Amendment into sovereign Mexican territory “would cast a cloud of legal uncertainty over every action taken by the U.S. government abroad.” At minimum, the government argues, a foreign plaintiff must have a “significant voluntary connection” to the U.S.

 

A federal district judge in Tucson last year allowed Ms. Rodriguez’s suit to go forward, a decision the agent’s lawyers appealed to the Ninth Circuit in San Francisco.

The Mexican government agrees, stating in a friend-of-the court brief that “giving Mexican nationals an effective remedy for harm caused by arbitrary and unlawful conduct directed across the border by U.S. Border Patrol Agents would not conflict with Mexico’s laws and customs and could not possibly damage relations between our two countries.”

Jeffrey Newman represents whistleblowers