PHOENIX (AP) — A federal appeals court has ruled that a Border Patrol agent who fatally shot a Mexican teen on the other side of the border doesn”t have immunity and can be sued by the boy”s family.

The ruling on Tuesday came almost two years after the agent”s attorney argued he was immune from a civil lawsuit because the U.S. constitution didn”t extend to 16-year-old Jose Antonio Elena Rodriguez.

The agent, Lonnie Swartz, was acquitted of second-degree murder in a criminal trial over the October 2012 shooting this year, but will be retried on different charges.

The 9th U.S. Circuit Court of Appeals says Swartz violated “a clearly established” constitutional right.

Lee Gelernt representing the boy”s mother called the decision a victory.

Swartz”s attorney has not responded to a request for comment.

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