- Associated Press - Tuesday, May 26, 2015

TUCSON, Ariz. (AP) - A federal judge is considering throwing out a civil rights lawsuit against a U.S. Border Patrol agent who fatally shot a teenager across the U.S.-Mexico border on grounds that the boy was in Mexico at the time and therefore wasn’t protected by the U.S. Constitution.

U.S. District Court Judge Raner C. Collins heard arguments in the motion-to-dismiss hearing on Tuesday in Tucson.

The ACLU filed a lawsuit in Tucson against agent Lonnie Swartz. It sued on behalf of Araceli Rodriguez, the mother of 16-year-old Jose Antonio Elena Rodriguez.

The teen was in Nogales, Sonora, near the tall, steel fence that divides the United States and Mexico when Swartz shot him from Nogales, Arizona, on Oct. 10, 2012. An autopsy showed Elena Rodriguez was shot about 10 times.

The Border Patrol has said Elena Rodriguez was among a group of people throwing rocks at agents across the border, endangering their lives.

The ACLU says the shooting was another example of border agents using excessive force without consequences. Araceli Rodriguez says her son was walking home from playing basketball with friends and never had a rock or any other weapon.

Swartz has not been charged, and an investigation by the FBI is ongoing. He is still an agent with the Border Patrol, his attorney, Sean Chapman, said.

Chapman declined to comment after the Tuesday hearing. He told Collins during oral arguments that constitutional protections did not extend to Elena Rodriguez.

“Even if Agent Swartz’s alleged conduct plausibly violated the Fifth Amendment, (Elena Rodriguez) was not entitled to substantive due process because he neither came within the territory of the United States nor developed substantial connections with this country to justify its extraterritorial application,” Chapman wrote in his motion to dismiss.

In a similar case out of Texas, a federal appeals court found the family of another Mexican teen killed by an agent cannot sue in the United States. U.S. Border Patrol agent Jesus Mesa Jr. shot 15-year-old Sergio Adrian Hernandez Guereca in June 2010 near a bridge between El Paso, Texas, and Ciudad Juarez, Chihuahua. Authorities said Mesa was trying to arrest immigrants who had illegally crossed into the country when rock-throwers attacked him. Mesa fired his weapon across the Rio Grande, striking Hernandez Guereca twice.

A three-judge panel of the 5th U.S. Circuit Court of Appeals originally said Hernandez Guereca’s family could sue Mesa. But the full court overturned that ruling in April.

ACLU attorney Lee Gelernt told Collins that the Texas case shouldn’t bear too much weight on his decision. “There’s no black hole where our agents can escape liability,” Gelernt said.

Collins did not issue a ruling on Tuesday and said he would take arguments into consideration. “I have a feeling no matter how I rule, it will not be the last word,” the judge said.

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