Border Patrol agent subject of criminal and civil cases

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Dani Jardine
A memorial plaque of Jose Antonio Elena Rodriquez is displayed on the corner of Calle Internacional (International Street) in Nogales, Mexico, where Rodriguez was allegedly shot and killed by a U.S. Border Patrol agent in 2012. (Dani Jardine)

Editor’s note: Immigration has been a political boondoggle for at least two decades in the United States. Congress has yet to come up with a system that will successfully address the complexities, and President Trump has taken some decisions into his own hands. This is the second in a series of stories examining how real people are affected.

Fourth in a series

Border Patrol Agent Lonnie Swartz allegedly shot and killed Mexican national Jose Antonio Elena Rodriguez Oct. 12, 2012. Rodriguez was 16 years old. Now, nearly six years after Rodriguez’s death, Swartz is being tried for second-degree murder in an Arizona U.S. District Court.

This case represents the first time a Border Patrol agent will be prosecuted by the U.S. Department of Justice.

The criminal case

According to court documents, Swartz was assigned to work at the port of entry and was not expected to be at the border fence on the night of the incident.

That night, two individuals believed to be smuggling drugs were reported climbing the border fence back into Mexico and got stuck at the top of the fence. Two other individuals began throwing rocks at the border fence from Calle International in Mexico as a distraction.

In video surveillance footage shown in court, Rodriguez cannot be seen throwing rocks but approaches the two men who were. Swartz is then seen approaching the border fence, and proceeds to fire his weapon.

Swartz fired three times. Rodriguez then fell to the ground and Swartz continued to fire 13 more times as the teenage boy lay on the ground.

Rodriguez was shot 10 times from behind.

According to court documents, after Swartz stopped firing he vomited and then reported to his supervisor. The documents record Swartz explaining how individuals were throwing rocks and hit a K-9 dog.

“I shot and there’s someone dead in Mexico,” Swartz said, according to court records.

The Border Patrol Use of Force Handbook contains clear guidelines for the use of lethal force.

“Law enforcement officers and agents of the Department of Homeland Security may use deadly force only when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury,” the handbook says.

BYU Law Professor Eric Jensen said this issue of use of force and the necessity to prove “imminent danger” are crucial aspects in this case.

Professor Eric Jensen comments on the civil and criminal cases against Border Patrol agent Lonnie Swartz. Jensen has a background in federal prosecution and national security law and now teaches at BYU Law School. (Dani Jardine)

“A rock can certainly represent deadly force,” Jensen said. “There was a time when we used to stone people; the question is, does this represent deadly force in this case?”

Jensen worked as a federal prosecutor prior to teaching at the BYU Law School and specializes in international criminal law and national security law.

He said in this particular case, in which the rocks were being thrown from quite a distance, the use of lethal force “seems to be a hard thing to justify, particularly if Swartz was in a position of safety.”

Jensen also pointed out that a possible tie to drug smuggling is unlikely to be an authorized reasoning to use deadly force.

The Use of Force Handbook makes no distinction in regards to lethal force in instances involving drug smuggling, stating only that the “totality of facts and circumstances” should be considered when determining use of force.

A possibly systemic issue

The incident between Rodriguez and Swartz is not the first time a Border Patrol agent’s use of force has been called into question. It’s also not the only incident of an agent killing a Mexican national.

Dani Jardine
A metal sculpture on the Mexican side of the Nogales border wall depicts a U.S. Border Patrol agent chasing immigrants. The small sticker on his bat reads “U.S. Murder Patrol.” (Dani Jardine)

The area surrounding the border fence in Nogales, Mexico — including the fence itself — is covered with colorful vigils and street art honoring people who were killed by Border Patrol agents.

Graffiti along the border expresses anger, frustration and a demand for justice. One piece of art at the border fence features a metal sheet sculpture depicting a Border Patrol agent with a sticker that reads, “murder patrol.”

Between January 2010 and September 2017, 46 people died as a result of an encounter with a Border Patrol agent, according to the Southern Border Communities Coalition.

Of those 46 deaths, 30 were fatal shootings. Some of the shootings involved struggles between agents and the victims, domestic disputes and shootouts. Three accounts involved off-duty agents killing individuals.

Eight of those shootings involved Mexican nationals who were killed after reportedly throwing rocks — often referred to as “rocking.”

In regards to cases involving people throwing rocks, Jensen pointed out while Border Patrol agents are expected to act lawfully, people also should not throw rocks or otherwise provoke agents.

“It’s clear that Mexican nationals shouldn’t be throwing rocks at Border Patrol agents,” Jensen said. “It’s also clear that Border Patrol agents shouldn’t be using deadly force when it’s not authorized, so this case will hopefully give some fidelity to where those lines lie.”

All new Border Patrol agents participate in a training program at the CBP Border Patrol Academy in Artesia, New Mexico. The training program lasts 58 days and includes extensive firearm training.

Michael Ford, an Arizona local and former South Tucson police chief, said most basic firearm training is geared toward threat assessment and de-escalation and mitigation tactics. According to Ford, South Tucson police officers receive more than 500 hours of training and are required to maintain a certain level of performance and knowledge in regards to firearms.

Ford served in the Marine Corps for two years, worked on a Border Crimes Unit and served in law enforcement for 20 years.

When asked how he would react to a “rocking,” Ford said it would depend on his ability to evade harm and mitigate the situation.

“If I can’t get away or de-escalate, then drawing my weapon might be something I have to do,” Ford said.

Despite supposed extensive training, a New York Times article cited a 2010 internal study that shows 60 percent of a pool of Border Patrol agents and customs inspectors were deemed unsuitable for service. The article suggests the issue might be a result of increased hiring after Congress doubled the size of the Border Patrol.

Court records show Swartz enlisted in the military in 1995 and then deserted two months later. Swartz was arrested in 1997 and discharged from the military.

According to court records, Swartz failed to report his desertion and arrest when he applied to the Border Patrol.

News outlet Arizona Central reported a fellow Border Patrol agent who arrived at the scene after Swartz finished firing his weapon.

The witness said he had experienced “rockings” before but had never fired his weapon in response. The witness also said he was specifically struck by the number of shots fired by Swartz and indicated standard issue magazines only hold 12 rounds, meaning Swartz reloaded his weapon to continue firing.

Arizona Central reported the witness of another Border Patrol agent who said he and an officer with a K-9 dog retreated to take cover when the “rocking” began. The dog was hit by a rock and then reacted to being struck. The witness said he was scared and didn’t know where the rocks were coming from.

The video surveillance footage from the border that night could play a key role in helping to determine the reality of “imminent danger” in the case, according to Jensen.

“The fact that you have an objective view of what was going on will help the jury understand the reasonableness of agent Swartz’s claim of imminent danger and that he needed to use reasonable force,” Jensen said.

However, the fact that the Department of Justice has taken on the case could indicate they believe Swartz acted inappropriately, according to Jensen.

“The Department of Justice is very careful about what cases they take,” Jensen said. “They do a thorough review of the evidence, and so there must be things in the facts that make them think agent Swartz wasn’t acting within the proper role as a Border Patrol agent when he used such force.”

The civil case

In addition to the criminal case against Swartz, Araceli Rodriquez — Jose Anotonio’s mother — is suing Swartz in a civil case.

This civil case is not the first of its kind, but it could have significance in determining when foreign nationals have standing to sue a U.S. citizen in U.S. court.

The issue of standing does not apply in the criminal case because Swartz is being prosecuted by the U.S. Department of Justice and not an individual.

A parallel civil case in El Paso, Texas, also involving a Mexican national who was killed by a Border Patrol agent, Hernandez v. Mesa, could have a considerable influence on the decision made in the civil case against Swartz.

While there are some differences between the cases, both question whether an individual who is not a U.S. citizen has any protections under the Fourth and Fifth Amendment.

American Civil Liberties Union attorney Lee Gelerent is representing the Rodriguez family in the civil case and believes the case could be decided on either Fourth or Fifth Amendment grounds.

“We certainly don’t think there’s anything impractical about asking a U.S. Border Patrol agent on duty, standing on U.S. soil, with a government issued weapon, to comply with the Fourth Amendment,” Gelerent said in a hearing for the case.

Swartz has made a qualified immunity claim in response to the civil case against him. This claim shields public officials from damages for civil liability; however, in order to successfully claim immunity, Swartz has to show that the law he violated was not clear.

When asked about the clarity of constitutional and legal application, Gelerent said there are many factors that ought to be considered, including the relationship between Nogales, Mexico and Nogales, Arizona — often referred to as “Ambo Nogales.”

“We don’t have a bright line as to when the Constitution applies. You really need to, as courts, assess all of the factors in the case, the totality of the circumstances and be sensitive to the situation and the nature,” Gelerent said.

The judges hearing the civil case have decided to wait to rule until after a decision is reached on the Hernandez v. Mesa case.

Both the civil and criminal cases against Swartz could have profound impact on Border Patrol agents, Mexican nationals and future cases of a similar nature.

Jensen said a ruling in Rodriguez’ favor in the civil case could open that same kind of civil process to other Mexican nationals.

The criminal case, however, could create a chilling effect for Border Patrol agents, according to Jensen. He explained that if Swartz did have reasonable cause for use of lethal force but was still found guilty, then future agents might think, “Any actions I take might be deemed inappropriate.”

Jensen said the effect the case will have on Border Patrol agents is an aspect the judge and jury should consider throughout the trial.

Both the civil and criminal case against Swartz are still proceeding, and given the unique and unprecedented nature of the cases, it is difficult to predict any result.

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