Morrison & Foerster, ACLU Win Groundbreaking Ruling on U.S.-Mexico Shooting Death

08/07/2018

Arturo J. González and Elizabeth Balassone

MoFo News Item

On Tuesday, August 7, a U.S. federal court delivered an unprecedented ruling for Morrison & Foerster and co-counsel ACLU that allows a lawsuit to continue against a U.S. border patrol agent who shot and killed a Mexican teenager on Mexican soil. Morrison & Foerster and the ACLU are representing Araceli Rodriguez—the mother of the teenager killed, Antonio Elena Rodriguez. This is the first appellate decision ever to hold that a border patrol officer can be held liable for shooting someone on foreign soil.

“We are pleased that Mrs. Rodriguez will finally get her day in court,” says Morrison & Foerster Commercial Litigation and Trial Practice Group chair Arturo González, who leads the firm’s work on the case pro bono. Senior litigation associate Elizabeth Balassone is also part of MoFo’s team on the matter.

The U.S. Court of Appeals for the Ninth Circuit, in a 2-1 ruling, held that though Antonio Elena Rodriguez had been on Mexican soil when shot through the border fence, border agent Lonnie Swartz “acted on American soil subject to American law.” In this case, said the court, a jury could find that the use of deadly force was unreasonable under the Fourth Amendment. The decision allows Araceli Rodriguez to pursue a civil lawsuit against Swartz.

In a separate criminal case against Swartz, he was acquitted of second-degree murder in April and a mistrial was declared on charges of manslaughter; he is scheduled for retrial in October.

The Ninth Circuit’s opinion in Rodriguez v Swartz can be found here. The ACLU’s statement on the ruling is available here.

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