Judge Andrew Kleinfeld of the U.S. Court of Appeals for the Ninth Circuit. Photo Credit: Jason Doiy.

The U.S. Court of Appeals for the Ninth Circuit has ruled in a split decision that a U.S. Border Patrol agent can be sued after he shot and killed a Mexican teenager while standing on American soil.

According to the court’s decision Tuesday in Rodriguez v. Swartz, U.S. Border Patrol agent Lonnie Swartz shot and killed 16-year-old Jose Antonio Elena Rodriguez as Rodriguez was walking down a street in Nogales, Mexico, a city which runs parallel with the United States border.

Rodriguez, the suit alleged, was not committing a crime or posing a threat to Swartz, who fired multiple rounds across the border, hitting the boy with about 10 bullets, mostly in the back. The boy’s mother, Araceli Rodriguez, later sued Swartz in Arizona U.S. district court alleging that Swartz violated her son’s Fourth Amendment right to be free of excessive force.

Swartz moved to dismiss Rodriguez’s claim based on qualified immunity. After the district court denied Swartz’s motion, he filed an interlocutory appeal with the Ninth Circuit.

In a split decision, the Ninth Circuit affirmed the trial court’s decision denying Swartz qualified immunity.

“Based on the facts alleged in the complaint, Swartz violated the Fourth Amendment,” wrote Senior Circuit Judge Andrew Kleinfeld in the majority opinion. “It is inconceivable that any reasonable officer could have thought that he or she could kill [Jose Antonio Elena Rodriguez] for no reason. Thus, Swartz lacks qualified immunity.”

Judge Milan Smith dissented to the decision, noting the courts do not have the authority to allow the Fourth Amendment claim to proceed because of the cross-border nature of the dispute. The majority decision, in allowing the case to proceed against Swartz, oversteps separation-of-powers principles and creates a circuit split on the issue, Smith said.

In March, the U.S. Court of Appeals for the Fifth Circuit issued a split decision finding that a Mexican family could not sue a U.S. Border Patrol agent who shot their 15-year-old son who was on the Mexican side of the border. The Fifth Circuit concluded that the Mexican family had no constitutional standing to sue the agent.

Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, who represented Rodriguez before the Ninth Circuit, is pleased with the decision.

“This court made clear that the Constitution does not stop at the border and that agents should not have constitutional immunity to fatally shoot Mexican teenagers on the other side of the border fence,” Gelernt said. “This ruling could not have come at a more important time, when this administration is seeking to further militarize the border.”

Sean Chapman, a Tucson, Arizona, lawyer who represents Swartz, did not immediately return a call for comment.