From [HERE] Earlier this year, US Border Patrol agent Lonnie Swartz was acquitted of second degree murder for killing a 16-year-old Mexican resident by firing sixteen bullets across the border into a Nogales, Mexico street. Ten of those hit Jose Antonio Elena Rodriguez, killing him in Mexico, but with bullets fired from the United States.
The excuse for emptying a clip into another country (and another country's citizen) was that Rodriguez and others were "throwing rocks" at Border Patrol agents. Considering there's a fence separating the US and Mexico side of Nogales -- and a decently sized one at that -- and the BP officers were free to move out of range of the rocks, it would appear there was no physical threat to Swartz's safety. Nonetheless, he felt compelled to shoot across the border 16 times. He may have escaped jail time, but he's not going to escape a lawsuit. (h/t Kevin Gosztola of ShadowProof)
The Ninth Circuit Court of Appeals has upheld the lower court's stripping of Swartz's qualified immunity. The decision [PDF] points out several things about how far the Constitution expands into Mexico when it involves an American on American soil firing deadly projectiles into another country.
First off, the court notes J.A. (as he's referred to in the ruling) posed no threat to officers even if he was throwing rocks. (J.A.'s survivors claim he wasn't.) The Border Patrol had the high ground plus a fence to protect them from thrown rocks.
The ground on the American side is around 25 feet higher than the road, and a border fence rises another 20 or 25 feet above that… The fence is made of steel beams, each about 6½ inches in diameter, set about 3½ inches apart.
Here's a picture of the area from the Mexico side for reference. (Taken from the ruling.)
This would seem to be a pretty effective barricade against thrown rocks. However, it does nothing to stop bullets fired from above through the fence. The Fourth Amendment question is completely settled on matters like these:
These principles are clearly established. As we held in Harris, every reasonable law enforcement officer should know that “officers may not shoot to kill unless, at a minimum, the suspect presents an immediate threat to the officer or others, or is fleeing and his escape will result in a serious threat of injury to persons.”
The court holds the killing of J.A. was an impermissible "seizure" under the Fourth Amendment. Swartz argued no right was violated because J.A. was a Mexican resident and therefore had no Fourth Amendment protections. The court says this distinction doesn't matter. What really matters is how the shooting took place. Mexico's laws and rights apply on the Mexican side of the border, but US laws and rights are dragged into it when a government agent starts firing a gun from the US side of the border.
[U]nlike the American agents in Verdugo-Urquidez, who acted on Mexican soil, Swartz acted on American soil. Just as Mexican law controls what people do there, American law controls what people do here. Verdugo-Urquidez simply did not address the conduct of American agents on American soil.
Furthermore, despite Swartz's filed protestations, he could not have possibly known the nationality of the citizen he was firing at. Nogales is split at the border and residents of both sides cross the border frequently. Swartz could very easily have killed a US citizen. His assumption that J.A. was Mexican because he was on that side of the fence did not give him a better excuse to open fire. The only thing that assumption did was make him believe this violation of J.A.'s rights would somehow be more minimal because of his physical location. That assumption is just wrong.
J.A.’s citizenship and ties to the United States are similarly irrelevant here. When he shot J.A., Swartz could not have known whether the boy was an American citizen. Thus, Swartz is not entitled to qualified immunity on the bizarre ground that J.A. was not an American. For all Swartz knew, J.A. was an American citizen with family and activities on both sides of the border. Therefore, the question is not whether it was clearly established that aliens abroad have Fourth Amendment rights. Rather, it is whether it was clearly established that it was unconstitutional for an officer on American soil to use deadly force without justification against a person of unknown nationality on the other side of the border.
Swartz argued that extending this right to citizens on the other side of our border walls will somehow wreak havoc on the legal system and hamper the ability of border officers to do their jobs. The court says this concern is misplaced. If officers engage on this side of the border, the Constitution (and court precedent) is crystal clear.
The concerns in Verdugo-Urquidez were also specific to warrants and overseas operations. But this case is not about searches and seizures broadly speaking. Neither is it about warrants or overseas operations. It is about the unreasonable use of deadly force by a federal agent on American soil. Under those limited circumstances, there are no practical obstacles to extending the Fourth Amendment. Applying the Constitution in this case would simply say that American officers must not shoot innocent, non-threatening people for no reason. Enforcing that rule would not unduly restrict what the United States could do either here or abroad.
J.A.'s Fourth Amendment claim can continue to be brought against Agent Swartz. The court briefly notes that J.A.'s Fifth Amendment claim may have been dismissed when the Fourth A claim was upheld, but there's no reason it wouldn't have applied as well if it had been sustained. And it's this small note that really lays bare the court's feelings about this particular defendant and his actions.
The district court dismissed Rodriguez’s Fifth Amendment claim because the Fourth Amendment applied, and we do not analyze the Fifth Amendment claim here. But if the Fourth Amendment does not apply because J.A. was in Mexico, then the Fifth Amendment “shocks the conscience” test may still apply. Swartz’s conduct would fail that test. We cannot imagine anyone whose conscience would not be shocked by the cold-blooded murder of an innocent person walking down the street in Mexico or Canada by a U.S. Border Patrol agent on the American side of the border.
Swartz may have been acquitted of murder charges in court, but another court stills views his actions as murderous. When a court calls a government agent's actions "murder," there can be no doubt qualified immunity has been denied. Swartz will have to face the financial consequences of his actions, even if he has managed to dodge being jailed for killing the citizen of another country.