This is a part of Disorder in the Court, a weeklong series on the legal press and the most explosive Supreme Court in generations: how we cover it, how we’ve failed, and how we can do better.
José Antonio Elena Rodríguez was 16 years old in 2012 when he was killed by a U.S. Customs and Border Protection agent off the U.S.–Mexico border. After the agent was tried but found not guilty of second-degree murder, the boy’s family responded by suing the agent responsible to try to find some sense of justice. In June 2020, though, the family’s lawsuit ended anticlimactically in dismissal before a jury even had the chance to see any evidence. Why? Because that spring, the Supreme Court ruled in a separate case that federal agents could not be sued in cross-border disputes.
The Rodríguez family’s story is emblematic of the profound follow-on effects that occur when the Supreme Court rules in any single given case, a reality that has historically been missing from typical press coverage of the court. It also demonstrates the devastating impact the court’s ever-rightward drift has had on the lives of real people.
Though it’s been more than a decade since José Antonio died, the Rodríguez family still struggles to find closure over the teenager’s death.
“It has been very painful, and finding justice has been very slow,” Taide Elena, Rodríguez’s grandmother, told me. “I want this to be resolved. I want justice in this case because this is a way that José Antonio can rest.”
The Rodríguez family still hopes to find legal grounds to pursue some type of litigation with the U.S. over José Antonio’s death. The court’s 2020 ruling in Hernández v. Mesa, though, makes that a virtual impossibility. In that case, Justice Samuel Alito was joined by the other Republican-appointed justices to rule 5–4 that cross-border shootings had “foreign relations and national security implications” that raised separation of powers concerns and made the judiciary an inappropriate venue in which to determine liability. All four Democratic-appointed justices at the time dissented, with Justice Ruth Bader Ginsburg writing that whether or not the victim of a shooting by an officer can sue shouldn’t depend “on where a bullet happens to land”; in this case, on the Mexican side of the border. “I resist the conclusion that ‘nothing’ is the answer required in this case,” Ginsburg wrote. Unfortunately for the Rodríguez family, the court ruled otherwise, and their avenues for redress are virtually closed.
The family recently started the process of attempting to get some justice through the Mexican government, but it’s too early to tell what real options they have, and the U.S. will certainly not extradite the officer who killed José Antonio. The teenager’s death is still deeply felt within his family and in the Nogales, Mexico, border-town community. Last year was the 10-year anniversary of Rodríguez’s death and a citywide memorial was held to honor him. Speeches were given by members of the teenager’s family, prayer circles were held, and there were musical performances, all steps away from the spot where Rodríguez was killed.
What happened to Rodríguez is not uncommon; an investigation by The Guardian found that 97 people—U.S. citizens and noncitizens—were killed from 2003 to 2018 in shootings by CBP. A similar investigation by the Arizona Republic found that of the 20 agents or officers who killed people while on duty from 2008 to 2011, none were disciplined internally or fired.
Rodríguez’s case also resulted in limited accountability thanks in large part to the Supreme Court. During the event in October 2012, two men scaled the U.S.–Mexico border fence off Arizona with large bundles of marijuana in tow. CBP agents confronted the men, and they claim that rocks were thrown at them from the other side of the border. CBP responded by firing gunshots, and 10 bullets struck Rodríguez while he was on Mexican soil. CBP alleged that the teenager was among the rock-throwers, while his family and witness accounts argued that Rodríguez wasn’t involved, but was in fact walking home from playing basketball and was caught in the crossfire.
Lonnie Swartz is the CBP officer who was accused of killing Rodríguez, which he claimed was out of self-defense, and the case was closely followed for six years as it worked its way through the court system; Swartz was eventually acquitted. But in 2018, a judge ruled that Araceli Rodríguez, José Antonio’s mother, had legal grounds to sue Swartz because he lacked qualified immunity.
That win for the Rodríguez family was short-lived because of the Supreme Court’s decision in Hernández v. Mesa. In its decision, the court determined that federal agents are entitled to blanket immunity and cannot be sued in cross-border disputes. That led to Araceli’s own lawsuit being halted.
“We felt a lot of anger, because even though the body, yes, was in Mexico, the bullet came from the United States.” said Taide Elena. “The person shot through the border into Mexico. The crime was committed from the United States.”
The Supreme Court believes differently. In Hernández v. Mesa, the court established a new precedent specifically for federal law enforcement officers that allows them to act with impunity at the border. In the years since the ruling, that has only continued. In December 2021, for instance, a Border Patrol officer fired upon a pair of cars on the Mexican side of the border that were carrying seven children, including some below the age of 5. (There were no injuries reported.) And in 2020, the year the court ruled in Mesa, the Border Patrol’s National Use of Force Review Board cleared all eight lethal use-of-force incidents it reviewed for that fiscal year. Data analyzed by the American Civil Liberties Union has shown there haven’t been any reported cross-border shootings since 2020, when the public health order Title 42 was implemented by the Trump administration, allowing CBP to expel migrants from the border and force them to await asylum adjudication in Mexico. However, with Title 42 having officially ended this month, the new situation is unpredictable. The unfortunate reality, as demonstrated by the car-shooting incident two years ago, is that violence at the U.S. southern border is likely to continue, and it’s only a matter of time until another cross-border shooting is recorded.
Maria Guadalupe Güereca, the mother of Sergio Adrián Hernández Güereca—the subject of Hernández v. Mesa—told me the Supreme Court’s decision made it seem like the officer who killed her son “had done nothing, like he had not killed anybody.” She believes the court made a grave mistake in its ruling.
The Rodríguez family feels similarly. “It’s like the United States is a mafia,” said Taide Elena. She feels the court’s decision has created fear so that other families who experience situations like her grandson’s death simply won’t take any action to seek justice or accountability—giving CBP free rein, without any consequences.
Ana Maria Vasquez knows both families well. She’s been an active volunteer with the Border Patrol Victims Network for about eight years and also lives in Mexico. José Antonio Elena Rodríguez’s tragic death inspired her to get involved. She feels the high court’s ruling in Hernández v. Mesa “practically gives permission for people to be killed across the border” and that the U.S. has established a way to shield itself by removing any legal recourse for anyone shot by CBP.
Advocacy groups like Human Rights Watch and the American Civil Liberties Union also took issue with the high court’s decision, issuing statements that argued that “there is no Constitution-free zone where border patrol agents can kill civilians.”
Former high-ranking CBP officials also said there have been rampant problems within the agency, detailing in a joint amicus brief for Hernández v. Mesa that 10 percent of incidents involving rock-throwing across the border were handled with the use of a firearm in fiscal year 2011. One year later, in FY 2012, that went up to 12 percent. They also said that the CBP workforce “has been plagued by corruption, misconduct and excessive force incidents” for years.
The Supreme Court’s decision effectively removed any legal remedy for cross-border victims who suffer at the hands of CBP, and the Rodríguez family is just one of many who have been left feeling frustrated and abandoned by the U.S. justice system. Trayce Peterson, another volunteer with the Border Patrol Victims Network, says that the court essentially decided that Mexican citizens, and migrants too, are “no longer human.”
“The tragedy is that this ruling doesn’t protect innocent people who have not done anything, but were harmed by people who represent our government,” said Peterson.
Ultimately, the court’s decision essentially gave CBP a license to kill. “The U.S. government is very wrong to allow these killings to happen, to allow the Supreme Court to make this ruling,” said Taide Elena. “If this is allowed, anything is possible.”
