Mother's wrongful-death suit faces legal obstacles

NOGALES, Sonora – Araceli Rodriguez wanted to be in Tucson on Tuesday when attorneys filed a wrongful-death lawsuit against the Border Patrol agent or agents who killed her son.

But the U.S. Consulate denied her request for a visa, she said.

So she remained in Nogales, Sonora, where she has been stuck since her son was killed 21 months ago. In that time, mourning has turned into mounting anger as U.S. officials have denied or ignored her requests demanding to know who shot her son and why.

On Tuesday, though, she said she felt something new: hope.

"Now, there are attorneys behind me," she said. "There are people who are helping me; and that gives me hope that there will be justice."

The suit, which does not ask for specific damages, faces high legal hurdles. Resolution "could take many years," acknowledged one of her attorneys, Lee Gelernt, of the American Civil Liberties Union.

The case, which involves shots fired from U.S. soil that killed a youth in another country, raises questions about whether and when U.S. constitutional protections extend beyond U.S. borders.

Those questions in the end may have to be settled by the U.S. Supreme Court, Gelernt said.

The family of Jose Antonio Elena Rodriguez has worked hard to keep his death from fading away.

Helped by civil-rights groups on both sides of the border, they have held vigils and marches and painted candles on the border fence in his memory.

On Tuesday, a dozen family members flanked Jose Antonio's grandmother, Taide Elena, a U.S. citizen, as she spoke outside the courthouse in Tucson, clutching a photo of a smiling Jose Antonio in one hand, and a picture of his coffin in the other.

Like many Nogales-area families, the Elenas have members on both sides of the border.

"In our hearts, for all our lives, there will be an empty space," Taide Elena said.

She said the agents had no justification for shooting Jose Antonio.

"We want the names of those people; we want to see their faces, we want to see them in court," she said.

Jose Antonio, 16, died the night of Oct. 10, 2012. According to the civil complaint, he was walking down Calle Internacional, which runs alongside the border fence, in Nogales, Sonora, when one or more Border Patrol agents firing through the fence shot him 10 times in the back and head.

The agents were responding, along with Nogales, Ariz., police officers, to a 911 call. The caller said two men carrying what appeared to be bundles of marijuana had climbed over the fence from Mexico. Agents spotted two men who dashed out from behind a house and were trying to climb back into Mexico; as the agents tried to arrest them, rocks were thrown over the fence at them, according to a Nogales Police Department report.

Customs and Border Protection officials said that one or more agents fired at the rock-throwers in self-defense.

But questions about the CBP account arose quickly. At that spot, the border fence runs along a bluff. The street level on the Mexico side is about 25 feet lower than on the U.S. side. To shoot down at the spot where Jose Antonio was felled, an agent would have to be standing right next to the fence, pointing the gun through the 3.5-inch gap between the 18-foot-high steel posts.

But any rock thrown over the fence from the Mexico side, as the police report described, would have landed at least 15 or 20 feet past the fence on the U.S. side, and could not hit an agent standing at the fence. As a result, an agent firing through the fence would not be in direct physical danger of being hit by a rock thrown over the fence from down below on the Mexican side.

An eyewitness on the Mexican side, Isidro Alvarado, said he was walking down the street behind Jose Antonio when two youths ran past them. Moments later, shots rang out and Jose Antonio fell dead, he said.

CBP has declined requests to release videos of the incident that may have been shot by security cameras mounted on the border fence, or even to confirm their existence. The agency has declined to identify the agent or agents involved, say whether any disciplinary procedures have been taken in this case, or reveal the outcome of any internal investigation.

Contacted Tuesday about the civil suit, a CBP spokesman declined to comment, saying the agency does not discuss pending litigation.

Attorney James Duff Lyall, with the ACLU's Tucson office, said attorneys representing the family will seek a court order within the next two weeks for CBP to release the agents' names, if CBP does not provide them voluntarily.

Given that it is a routine matter for such names to be disclosed in wrongful-death suits, Gelernt said he expects that question to be resolved quickly. Resolving the rest of the case may not be as straightforward.

The suit claims that agents violated Jose Antonio's Fourth Amendment rights "against seizure with excessive and unreasonable force" and his Fifth Amendment rights of substantive due process. The suit does not name the Border Patrol, CBP or their umbrella agency, the Department of Homeland Security, as defendants, only the agents.

Last month, the 5th U.S. Circuit Court of Appeals in New Orleans issued an opinion in another cross-border wrongful-death suit brought by the family of a Juarez teenager, Sergio Hernandez Guereca. A year and a half ago, in that case, a U.S. District Court judge in Texas dismissed the claims, saying that because Hernandez Guereca, 15, was a Mexican citizen who died in Mexico, his death was outside the court's jurisdiction.

But a three-judge panel of the 5th Circuit Court found otherwise. The panel agreed that the Hernandez Guereca family could not pursue claims against the government, and dismissed a Fourth Amendment claim against a Border Patrol agent. But it upheld the family's right to sue under the Fifth Amendment.

Luis Parra, a Nogales attorney who is among the 11 named attorneys representing Araceli Rodriguez, said he believes the facts in Jose Antonio's death are even more compelling and therefore attorneys for Rodriguez are pursuing Fourth and Fifth amendment claims against the agents.

"Our view is that both apply," Gelernt said.

The U.S. District Court in Tucson is part of the 9th Circuit, meaning that the 5th Circuit Court's ruling isn't binding. Department of Justice officials haven't said whether they will appeal the ruling in the Hernandez Guereca case to the full 5th Circuit Court.