In a rare ruling, Border Patrol Agent Lonnie Swartz has been indicted for the murder of Jose Antonio Elena Rodriguez, the 16-year-old he shot across border lines.
By Julie Morse
The border between Nogales, Mexico, and Nogales, Arizona. (Photo: Wikimedia Commons)
On the evening of October 10, 2012, 16-year-old Jose Antonio Elena Rodriguez was walking home from a basketball game in Nogales, Mexico. He was just a few blocks from his home when Lonnie Ray Swartz, a United States Border Patrol agent standing on the other side of the border fence that divides Mexico and Arizona, fired a storm of bullets and killed him. The Arizona District Court ruled that, although Elena Rodriguez was standing on Mexican soil, he was entitled to the protections of the Fourth Amendment, and Swartz was indicted for murder. It was a landmark ruling, considering the fact that Border Patrol officers are seldom held accountable for violent behavior.
On July 9, 2015, the U.S. District Court denied Swartz’s request to throw out the case, ruling that the Fourth Amendment protected Elena Rodriguez. Last week, Swartz announced that he is appealing the decision (his criminal trial is set for November 7, 2016). In an effort to support Elena Rodriguez family’s claim during the appeal process, Human Rights Watch and Sarah P. Alexander and Mary Inman of Constantine Canon legal firm recently submitted an amicus brief to the Court of Appeals for the Ninth Circuit.
“The ultimate objective of the amicus brief is to provide to the court with information that we believe is going to be helpful for them in making their decision,” Alexander says. “This information suggests that the court should rule in favor of the plaintiff.”
The evening Elena Rodriguez was killed, Quinardo Garcia, a Border Patrol agent, spotted two men carrying bags with suspected drugs strapped to their backs hopping the fence from the U.S. into Mexico. Garcia called for back-up, and soon he and several other agents were calling out for the two men to stop running. After successfully scaling the fence, the men began throwing rocks at the agents. At that point, Lonnie Ray Swartz appeared. Without saying a word to his fellow agents, he fired between 14 and 30 bullets through the fence’s metal beams. Swartz missed both men, but shot Elena Rodriguez approximately 10 times in the back, according to court documents.
Between 2005 and 2012, a total of 144 current and former Border Patrol agents were arrested or indicted for smuggling drugs, people, and other corruption-related activities.
The timeline between Elena Rodriguez’s death and his civil rights trial is murky and poses still-unanswered questions. Only in November 2013 did a U.S. District Court Judge order Swartz’s name to be publicly released. It wasn’t until October 2015 that Swartz was even arraigned. According to Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, Elena Rodriguez’s family waited almost two years before filing the civil rights lawsuit because they were “waiting to see whether there would be any action by the U.S. government.”
Swartz argued that, since Elena Rodriguez was shot on Mexican soil, he shouldn’t be entitled to the protections of the Fourth and Fifth Amendments, according to court reports. His argument is reminiscent of the Hernandez vs. United States ruling in April 2015. Back in June 2010, Sergio Adrian Hernandez Guereca, a 15-year-old Mexican, was playing with some friends near the border fence in Ciudad Juarez. Jesus Mesa Jr., a Border Patrol agent, approached the group and detained one of Hernandez’s friends for allegedly throwing rocks. In a video of the incident, Hernandez dashes off, and attempts to hide behind a bridge pillar, but Mesa fires at him, killing him.
In the case of Hernandez, the Fifth Circuit Court of Appeals unanimously ruled in favor of the Border Patrol, stating that Hernandez’s Fifth Amendment rights were not “clearly established” when he was killed. Swartz hoped that the court would make a similar decision in his case.
According to an investigation by the Arizona Republic, since 2005, both Border Patrol agents and Customs and Border Protection officers have killed at least 42 people, including at least 13 U.S. citizens. An American Immigration Council investigation discovered that there were 809 complaints of abuse — from physical to sexual to verbal — filed against Border Patrol agents between January 2009 and January 2012. Of those complaints, 97 percent resulted in “No Action Taken,” two complaints resulted in court action, one in the suspension of an agent, and six ended in “counseling.” The U.S. Government Accountability Office in 2013 reported that, between 2005 and 2012, a total of 144 current and former Border Patrol agents were arrested or indicted for smuggling drugs, people, and other corruption-related activities.
“The U.S. Border Patrol’s history of violence makes it all the more important for the Court to consider the international norms at play in these horrific situations,” Alexander says.