The family of a Mexican teenager who was fatally shot by Border Patrol near Nogales, Ariz., filed a lawsuit in federal district court Tuesday alleging they boy’s Fourth and Fifth Amendments rights under the U.S. Constitution were violated.
The civil lawsuit was filed in the U.S. District Court for the District of Arizona in Tucson by the American Civil Liberties Union and attorneys Luis Parra and Roberto Montiel on behalf of Araceli Rodriguez, the boy’s mother.
“The U.S. border patrol agents who killed my son in a senseless act of violence are still out there and they need to be brought to justice,” Rodriguez said in a statement. “The U.S. government has not held the agents who shot my son accountable and that is why I am bringing this lawsuit.”
The lawsuit claims the agents’ actions in killing 16-year-old Jose Antonio Elena Rodriguez were “unreasonable” and “excessive,” and it asks for a trial by jury.
“The agents acted intentionally with the specific purpose of causing serious harm and/or death to Jose Antonio, without legal justification,” it says.
On the night of Oct. 10, 2012, Jose Antonio was walking on a street that runs parallel to the U.S. border fence, in Nogales, Mexico. Border Patrol agents in the U.S. fired anywhere between 14 to 30 shots through the fence into Mexico, striking Jose at least 10 times, according the the complaint filed Tuesday.
The circumstances of the incident remain unclear, but Border Patrol has said agents were chasing a group suspected of entering the country illegally and fired across the border in response to alleged rock throwing.
The complaint says eyewitness said agents were stationed behind a section of the fence that towers approximately 40 to 50 feet above the street on the Mexican side, putting into question whether agents could have taken cover instead of using deadly force.
The family maintains that Jose was walking home alone after playing basketball with friends and did not throw any rocks.
“He was doing nothing but peacefully walking down the street by himself when he was gunned down. He was not committing a crime, nor was he throwing rocks, using a weapon, or in any way threatening U.S. Border Patrol agents or anyone else,” the complaint says.
A surveillance camera that looks over the fence near the location where the shooting took place is believed to have captured the incident. The government has declined to release the footage pending an investigation by the Federal Bureau of Investigations.
U.S. Customs and Border Protection, the parent agency of U.S. Border Patrol, did not immediately respond to a request for comment for this story.
Luis Parra, the family’s attorney, told BuzzFeed the federal government denied a previous complaint filed by the family to try to resolve the incident through administrative means. He said the new lawsuit will likely come down to whether the 9th U.S. District Court of Appeals decides Elena Rodriguez was protected by the U.S. Constitution even though he was a Mexican citizen and was on Mexican soil when the incident occurred.
If the court decides to take the case, the government would be required to provide all evidence that it has in its possession regarding the shooting, Parra said.
“It will give the family answers,” Parra said. “A year and nine months after their son was killed, they have absolutely no answers at all as far as who might have been involved in the shooting.”
A federal appeals court last month ruled that a Mexican teenager killed in another cross-border shooting near El Paso, Texas, was protected by the Fifth Amendment of the U.S. Constitution, allowing the family in that case to pursue legal action against the agent who shot him.
A previous version of this story incorrectly stated the federal district court has 30 days to respond to the complaint.
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