Teen killed by agent was throwing rocks:
A Mexican teenager killed by a Border Patrol agent in Nogales five years ago was throwing rocks at agents before he was shot to death, prosecutors have conceded in recently filed court documents.
A Mexican teenager killed by a Border Patrol agent in Nogales five years ago was throwing rocks at agents before he was shot to death, prosecutors concede in recently filed court documents.
Documents filed by the U.S. Attorney’s Office prosecuting Agent Lonnie Swartz for second-degree murder confirm for the first time that 16-year-old Jose Antonio Elena Rodriguez was throwing rocks from Nogales, Mexico, onto the Arizona side of the border before he was shot.
“The government will not dispute at trial, that (Elena Rodriguez) was one of apparently three individuals who, based on the video, were throwing rocks over the fence,” the motion by the U.S. Attorney’s Office states. “Likewise, the government will not dispute that this conduct was apparently an effort to assist the two subjects on top of the fence who were trying to successfully drop down onto the Mexican side of the border after smuggling two bundles of marijuana into the United States.”
Swartz’s lawyer, Sean Chapman, did not return calls for comment. The spokesman for the Border Patrol agent’s union could not be reached..
Luis Parra, lawyer for Elena Rodriguez’s family, said the teen’s mother, Araceli Rodriguez, declined comment because she did not want to interfere with the case’s prosecution.
“She will not comment on procedural or evidentiary matters pertaining to this criminal matter out of respect to the jury,” Parra said.
Whether Elena Rodriguez was throwing rocks has been a contentious issue. Border Patrol officials have argued since the shooting that the teenager was part of a drug organization and had been throwing rocks at agents on the U.S. side of the border. Elena Rodriguez’s family members and some witnesses have in- sisted the teenager was simply walking down the street when he was shot by Swartz, who fired through the border fence from the U.S. side.
The U.S. Attorney’s Office makes its concession in a motion seeking to preclude video evidence of other rock assaults from being shown at trial by Swartz’s defense.
Prosecutors argue that the rockthrowing is irrelevant.
“Whether the victim was employed by and acting on behalf of a drug cartel, as the defense expert wants to suggest, is simply unknown to either party,” the motion said. “But it does not matter. This is not a drug trafficking case.”
A partial video of the incident, shown for the first time last month in a Tucson courtroom, showed that Swartz fired 13 of his 16 shots at Elena Rodriguez while the teenager was lying face down on the ground.
Elena Rodriguez couldn’t be seen throwing rocks in the video shown in the courtroom —others nearby could be seen throwing rocks — but prosecutors played only a portion of the surveillance video that captured the incident.
Josiah Heyman, director of the Center for Inter-American and Border Studies at the University of Texas at El Paso, said the fact that Elena Rodriguez was throwing rocks complicates the case for prosecutors because they must prove that the rocks thrown by the teenager were not a deadly threat.
“Is that a harder case? I guess it’s always a harder case if you have do go through those arguments,” Heyman said.
Rocks can be deadly threats to the Border Patrol, Heyman noted, but they often are not. It all depends on the conditions.
The officer or agent needs to have a reasonable perception that the threat could lead to imminent injury or death, Heyman said.
“The whole question of rocks as justification for legal force at the border has really sort of revolved around this,” Heyman said. “There are cases where rocks absolutely could be a threat to a reasonable officer and there are other cases where they are definitely not a threat.”
In Elena Rodriguez’s case, the teenager was standing in Mexico some 25 feet below Swartz. The Border Patrol agent was standing above Elena Rodriguez on the U.S. side behind the international boundary fence, making it unlikely the rocks would hit Swartz. Other officers at the scene took cover rather than heading to the fence or firing their weapons.
Heyman has filed a friend-of-the-court brief in a civil case in which Elena Rodriguez’s family is suing Swartz for damages.
While the family and justice advocates may have wanted to believe the idealized scenario in which the teenager was just walking down the street, Heyman said, the Elena Rodriguez case demonstrates what those who live near the border already know: That these types of cases are complicated.