Bor­der po­lice must act like po­lice

The Arizona Republic - - Opinions -

The mur­der trial of a Bor­der Pa­trol agent is not just about a Mex­i­can teen and his griev­ing fam­ily. It’s about whether our muchcel­e­brated na­tional com­mit­ment to hu­man rights is more than skin deep. It’s about de­mand­ing ac­count­abil­ity from one of the largest fed­eral law-en­force­ment agen­cies in the coun­try.

The facts are heart­break­ing enough for one fam­ily. Five years ago, 16-yearold Jose An­to­nio Elena Ro­driguez was shot mul­ti­ple times by a Bor­der Pa­trol agent fir­ing across the fence into Mex­ico.

Agent Lon­nie Swartz was charged with sec­ond-de­gree mur­der, but his longde­layed trial, pre­vi­ously sched­uled to be­gin this month, was put off un­til March.

On Oct. 10, 2012, Swartz fired 16 shots from Ari­zona into No­gales, Sonora. The teen was hit 10 times. An au­topsy showed sev­eral of the bul­lets hit him in the back when he was on the ground.

Elena Ro­driguez was not just an in­no­cent by­stander.

The pros­e­cu­tion con­cedes in court fil­ings that he was one of three peo­ple throw­ing rocks at the agents to dis­tract them from “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.”

Let’s be clear: Rocks thrown at agents can be dan­ger­ous. Agents de­serve to pro­tect them­selves.

But it is un­likely rocks thrown from the lo­ca­tion where this teen was killed would pose much of a threat. On the Mex­i­can side, there is a 25-foot cliff. It is topped by an 18-foot fence. Rocks thrown up at that fence would be a dis­trac­tion, not a dan­ger.

Nev­er­the­less, the dead teen was not act­ing like a choir boy. But he was not com­mit­ting a cap­i­tal of­fense, ei­ther.

Swartz was not hired to be his judge, jury and ex­e­cu­tioner.

Swartz’s job that night was law en­force­ment — a tough job that de­mands courage as well as re­straint.

Swartz de­serves to make his de­fense in court.

But in the in­ter­est of jus­tice, Amer­i­cans have to keep in mind that his be­hav­ior is not an iso­lated in­ci­dent.

For years, there have been al­le­ga­tions of ex­ces­sive use of force and other abuses by bor­der agents.

Ex­ten­sive re­port­ing by The Ari­zona Repub­lic in 2013 found that Bor­der Pa­trol agents and Cus­toms Pro­tec­tion of­fi­cers had killed at least 46 peo­ple — in­clud­ing at least 15 Amer­i­cans — while on duty.

An in­ter­nal-af­fairs chief told re­porters that he was un­aware of any agent be­ing dis­ci­plined or ter­mi­nated in any of those deaths.

A re­port re­leased in 2013 by the Po­lice Ex­ec­u­tive Re­search Fo­rum found ev­i­dence of ex­ces­sive use of force, in­clud­ing al­le­ga­tions that agents in­ten­tion­ally put them­selves in front of ve­hi­cles that were at­tempt­ing to flee in or­der to jus­tify fir­ing at the oc­cu­pants.

A 2014 re­port by the Amer­i­can Im­mi­gra­tion Coun­cil used a Free­dom of In­for­ma­tion re­quest to ob­tain U.S. Cus­toms and Bor­der Pro­tec­tion (CBP) data and found 809 com­plaints of abuse filed from Jan­uary 2009 to Jan­uary 2012. Among those cases in which a for­mal de­ci­sion was reached, 97 per­cent re­sulted in “no ac­tion taken.”

A 2015 re­port from the Amer­i­can Civil Lib­er­ties Union in Ari­zona found a “sys­tem­atic lack of over­sight and ac­count­abil­ity” for agents’ be­hav­ior to­ward “in­di­vid­u­als and fam­i­lies at in­te­rior check­points” in Ari­zona.

Un­der the Obama ad­min­is­tra­tion, CBP re­sponded slowly to change the cul­ture of im­punity. Crim­i­nal charges against Swartz for shoot­ing the No­gales teen marked a move to­ward ac­count­abil­ity.

The Trump ad­min­is­tra­tion’s calls for a wall and sig­nif­i­cant in­creases in the hir­ing of bor­der agents fo­cus solely on se­cu­rity. Yet no Amer­i­can is truly se­cure if agents can ig­nore hu­man rights.

It’s worth not­ing that HR 3548, which au­tho­rizes up to $10 bil­lion for the bor­der wall, ini­tially in­cluded a loop­hole to ex­empt CBP from Free­dom of In­for­ma­tion laws.

Repub­li­can Rep. Martha McSally, a co-spon­sor of the bill, re­moved that pro­vi­sion fol­low­ing re­port­ing by tuc­son­sen­tinel.com.

She said ex­empt­ing CBP from pub­lic scru­tiny was “not the in­tent,” ac­cord­ing to the Tuc­son­Sen­tinel.

Yet the pro­vi­sion was there — and it mir­rors a poi­sonous at­ti­tude about the bor­der that is en­demic in the Trump ad­min­is­tra­tion.

The crim­i­nal trial of Lon­nie Swartz rep­re­sents the progress made by the pre­vi­ous ad­min­is­tra­tion to­ward ac­count­abil­ity. Amer­i­cans should de­mand that progress con­tinue.

Trial de­lays are heart­break­ing for the dead teen’s fam­ily; they seek jus­tice and peace of mind.

But this trial has far greater sig­nif­i­cance for a na­tion that ex­pects cops of all kinds to show re­spect for hu­man life and dig­nity.

This isn’t just about the bor­der. It’s about who we are as a coun­try.

And it isn’t just about the trial of one agent.

It’s about our ex­pec­ta­tions for law en­force­ment.

NICK OZA/THE REPUB­LIC

A cross marks the site in No­gales, Sonora, where Jose An­to­nio Elena Ro­driguez was shot to death by Bor­der Pa­trol Agent Lon­nie Swartz in Oc­to­ber 2012.

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