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Shootings, Security, and Articulable Suspicion: Rethinking the Standard for National Security as a Special Factor Preventing Bivens Recovery
American Criminal Law Review  (IF3.455),  Pub Date : 2020-09-01, DOI:
MaeAnn Dunker

On the night of October 10, 2012, sixteen-year-old Mexican citizen Jose Antonio Elena Rodriguez walked alone and unarmed along the sidewalk of Calle Internacional, a well-traveled road that runs parallel to the United States-Mexico border fence. Jose had just finished an evening of playing basketball with his friends and was traveling his usual route home along Calle Internacional when, without warning, U.S. Border Patrol Agent Lonnie Swartz opened fire directly at Jose. Agent Swartz fired a range of fourteen to thirty shots, hitting Jose approximately ten times from behind. According to eyewitnesses, Jose was fully visible and non-threatening. He did not throw rocks, verbally or physically threaten the U.S. Border Patrol agents, or direct any activity at the United States side of the border at all. After being shot from behind, Jose collapsed on the spot. He died seconds later in a pool of his own blood, just blocks away from his own home.