The American agent said he had acted in self-defense after rocks were thrown over the border. Swartz fired from behind a tall metal fence on an embankment that runs parallel to — and some 20 feet above — International Street in Nogales, where Elena Rodriguez had been walking when he was killed.
The incident produced a legal first in 2015, when Swartz was indicted on murder charges for the cross-border shooting. That criminal trial ended in April, when a jury acquitted Swartz of murder and deadlocked on a count of manslaughter.
Swartz "has been on unpaid administrative leave since his indictment in 2015," his attorney, Sean Chapman, told NPR.
When asked about any plans to appeal Tuesday's ruling, Chapman said, "We will either file a motion for rehearing en banc" — referring to the full circuit court, rather than a three-judge panel — or ask the Supreme Court to take the case.
In allowing the civil lawsuit to proceed, the 9th Circuit judges also moved to give new context to a legal precedent the Supreme Court set in 1971, in its ruling in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The landmark Bivens case covered the actions of federal agents who were found to have violated constitutional protections, but it did not involve a cross-border action.
As they invoked Bivens in the current case, Judge Andrew Kleinfeld and Edward Korman said in the majority opinion written by Kleinfeld that they did so because "no other adequate remedy was available."
In his dissent, Judge Milan Smith Jr. said that it's up to Congress, not the courts, to provide a remedy for damages in such cases. The court was going too far in extending Bivens, he said.
"In holding to the contrary," Smith wrote, "the majority creates a circuit split, oversteps separation-of-powers principles, and disregards Supreme Court law. I therefore respectfully dissent."
The "circuit split" Smith mentioned refers to the 9th Circuit reaching a different conclusion than the 5th Circuit did in a recent similar case — a situation that likely bolsters the chance that the Supreme Court will eventually take up the issue.
The judges who ruled in Rodriguez's favor said that while federal law bars the U.S. from being accountable to foreign laws, the plaintiff in this case is seeking to hold Swartz accountable under the U.S. Constitution.
Kleinfeld wrote in his opinion, "We are applying the Constitution to afford a remedy to an alien under these circumstances."
The Rodriguez case had been put on hold in late 2016, as the Supreme Court was considering Hernandez v. Mesa, a case that revolved around a U.S. Border Patrol agent who shot and killed 15-year-old Sergio Hernandez, in a culvert between the U.S. and Mexico at the El Paso, Texas, border.
Last summer, the Supreme Court sent the Hernandez case back to the U.S. 5th Circuit Court of Appeals and gave the plaintiffs a partial victory by saying the lower court made a mistake when it found the U.S. border agent in that case, Jesus Mesa Jr., had qualified immunity. In part, the lower court had reasoned that Hernandez wasn't protected by the Constitution because he wasn't a U.S. citizen.
In its ruling, the Supreme Court said that because Mesa hadn't known "Hernandez's nationality and the extent of his ties to the United States" when he shot at him, those facts were irrelevant to deciding whether the agent's actions were legal.
Citing that aspect of the Supreme Court ruling, the 9th Circuit judges said the facts about Elena Rodriguez's citizenship were similarly irrelevant.
It would be "bizarre," the majority opinion stated, for Swartz to be granted qualified immunity on the grounds that the teenager was not a U.S. citizen.
Reacting to the ruling in Arizona, Art del Cueto, head of the local Border Patrol Union, warned that it could embolden people who want to carry out cross-border attacks on U.S. agents, as Arizona Public Media reports.