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Jose Antonio Elena Rodriguez, 16, was shot 10 times in the back and head the night of Oct. 10, 2012, by one or more agents firing through the border fence into Nogales, Sonora. Agents said they were assaulted by rock throwers. The Republic

A Texas case going before the U.S. Supreme Court on Feb. 21, 2017, could determine whether the family of a teenager killed in Nogales, Mexico, will be able to sue the Border Patrol agent who fired the fatal shot through the border fence. Here, two of many bullet holes are circled on the emergency medical office building in Nogales, Sonora, where Jose Antonio Elena Rodriguez, 16, died after being shot by a. Border Patrol agent on the other side of the fence.(Photo: Charlie Leight/The Republic)

A Texas case going beforethe U.S. Supreme Court on Tuesdaycould determinewhether the family of a teenager killed in Nogales, Mexico, will be able to sue the Border Patrol agent who fired the fatal shot through the border fence.

The high court will hear oral arguments in Hernandez vs.Mesa, a case involving the 2010 killing of Sergio Adrian Hernandez Guereca, 15, in Juarez, Mexico. A Border Patrol agent firing from the U.S. side of the border killedthe teen as he peered out from behind a train trestle on the Mexican side.

A definitive rulingby the Supreme Court would determine whether people standing inMexico and killed by U.S. Border Patrol agents have a constitutional right to sue for damagesin the U.S.

The circumstances of the Texas case are similar to a 2012 shooting in Nogales, Mexico, where Jose Antonio Elena Rodriguez, 16, was shot 10 times in the back and head by Border Patrol Agent Lonnie Swartz. Swartzfired through the slats in the border fence from Nogales, Arizona. Swartz saidrocks were being thrown, prompting him to fire numerous times,reload his gun and fire again.

After the shooting, Swartz began to vomit and said, "I shot and there's someone dead in Mexico," according to court filings. Witnesses said no rocks were thrown.Theformerassistant commissionerof Customs and Border Protection'sOffice of Internal Affairs said the same in a deposition, also noting that it wasimplausible for rocks thrown from Mexico to hit someone on the U.S. side of the fence becausethe Mexican side is about 25 feet lower in the area where the shooting took place.

Swartz has been charged with second degree murder in federal court.

Elena Rodriguez's family also filed a civil suit against Swartz in U.S. District Court in Tucson. In July2015, U.S. District Court Judge Raner Collins ruledElena Rodriguezwas entitled to protections of the Fourth Amendment "even as a non-citizen standing on foreign soil."The Fourth Amendment of the U.S. Constitution prohibits unreasonable search and seizure.

An appeal of that decisionwas heard in October by a three-judge panel of the 9thU.S. Circuit Court of Appeals.

Appellate Judge Milan Smithsaid that because of the similar legal issuesin the Nogales and Juarez cases, the 9th Circuit ordinarily would have waited for the Supreme Court to rule in the Juarez case. However, Smith saidit was necessary for the 9th Circuit to move ahead with oral arguments in the Nogales case in casethe Supreme Court'sdecision in the Texas caseresults ina 4-4 tie.

The Supreme Court has had just eight justicessince the death last yearof Justice Antonin Scalia.

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The cases "involve almost identical legal issues," said attorney Sean Chapman, who represents Swartz in both the criminal and civil cases." That's what is interesting about it. ... It's incredibility similar to the Rodriguez case in Arizona. I'm waiting to see what theydo."

If the Supreme Court deadlocks,the 5th U.S.Circuit Court of Appealsruling that Guereca's family cannotsue the Border Patrol agent in the U.S. would stand in the 5th Circuit.Then the 9th Circuit could rule on the Elena Rodriguez case, Chapmansaid.

"I think the 9th Circuit is waiting to see what happens on Hernandez," he added.

If the Supreme Court were to deadlockand the 9th Circuit rulesthat Elena Rodriguez's family does have the right to sue, then the issue likely would head back to the Supreme Court because two appellatecourts would have divergent rulings, Chapman said.

However, if the Supreme Court does not deadlock and rules definitively for or against, it "presumably is going to set the law for these cross-border shootings for at least several generations," said Steve Shadowen, an attorney for the Guereca family, whosecase is before the Supreme Court.

The parents of Sergio Adrian Guereca, a Mexican teenager killed in Juarez in 2010 by a Border Patrol agent shooting across the U.S.-Mexico border, speak out about their son's death in a 2014 interview. Nick Oza/azcentral.com

There have been at least six such cross-border shooting cases since 2010, including the cases in Juarez and Nogales.

Once the Supreme Court rules, "it takes a long time, if ever, for the law to change," Shadowen said.

Both the 5th and 9th Circuit courtshave argued over whether the case should be brought under the Fourth or Fifth amendments to the Constitution.

In the Texas case,a 5th Circuit panel ruled the family had a right to sue the agent under the Fifth Amendment but not under the Fourth Amendment. That ruling was later reversed.

The 9th Circuit judges asked questions alongsimilar lines as the5th Circuit panel. They said theFourth Amendment refers to the right of the people, which is interpretedas rights of U.S. citizens. Butthe Fifth Amendment refers more broadly to any person,making it easier toapply to a non-citizen standing in Mexico.

Shadowen said he feels confident in the Juarez case that will be argued Tuesday before the Supreme Court.

"From the beginning we knew we were in the right legally and morally and we still feel that way," Shadowen said.

Border fence in Nogales, Arizona.(Photo: Nick Oza/azcentral)

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Supreme Court: Can Mexican citizens sue Border Patrol agents in cross-border killings? - AZCentral.com