Five years later, Border Patrol agent Lonnie Swartz to be tried for murder of Mexican teen

For Araceli Rodriguez, the wait has been agony.

Her son was shot dead by a Border Patrol agent who fired 16 bullets through the border fence and into Mexico in October 2012 — a month before former President Barack Obama was re-elected to a second term.

For three years, Rodriguez relentlessly pressured the U.S. government, by suing it and pushing to keep the case in the media.

She wanted justice for her son, who was 16 years old when he was killed.

It seemed her advocacy had finally paid off: Lonnie Swartz, the Border Patrol agent who fired across the border was indicted for second degree murder in October 2015, almost three years to the day when Jose Antonio Elena Rodriguez was killed.

She didn't realize murder charges would mean more waiting. After receiving a visa to see Swartz plead not guilty, she has traveled to Tucson more than a half dozen times, as trial delays have prolonged her search for justice two and half years.

Now the waiting appears to be over. Swartz's murder trial starts Tuesday in Tucson.

What the case is about

On Oct 10, 2012, Border Patrol agents were attempting to catch smugglers on International Street in Nogales, Arizona, just north of the border wall.

Two individuals were climbing back into Mexico from the U.S. and got stuck on top of the fence. Two others began throwing rocks from Calle International, in Mexico, to stop the Border Patrol from capturing the people on the fence — a common tactic on this portion of the border.

According to video shown in court, Elena Rodriguez approaches the two men. He can't be seen throwing rocks, but prosecutors don't dispute that point. Swartz then runs toward the border fence and opens fire three times.

Elena Rodriguez is hit and falls down, while the other two individuals run behind the nearest building, a doctor's office

Swartz continued firing at Elena Rodriguez while the teenager was on the ground, sending 13 more shots in two volleys as the 16-year-old was face down on the ground.

The Mexican side of the fence where Elena Rodriguez died is about 25 feet lower than the U.S. side. Because of the arc an object thrown over the fence from Mexico would have to follow, it would be all but impossible for a rock thrown from Mexico to hit someone near the fence on the U.S. side.

To avoid being hit by rocks in this area, agents normally take cover behind vehicles or come close to the fence.

After he stopped firing, Swartz began to vomit and told a supervisor:

"They were throwing rocks ... They hit the (K-9) dog ... I shot and there's someone dead in Mexico," Swartz said, according to the court records.

When did he die?

A central question of the trial will be: When did Elena Rodriguez die?

The U.S. Attorney's office contends Elena Rodriguez was still alive when he was on the ground, a fact that bolsters the prosecution's case that Swartz used unreasonable deadly force.

A reconstruction of the shooting by expert witness James Tavernetti showed his contention that Elena Rodriguez could have been shot once in the back while standing, but the remainder of the shots — to the head, back and arms — landed while he was on the ground.

The defense vehemently disagrees with that take, however, arguing that the first volley of shots killed Elena Rodriguez.

"The two key issues that the will be essential to the jury's determination of guilt or innocence in matter are (1) whether Agent Swartz acted in self-defense when he shot Elena Rodriguez; and (2) whether Elena Rodriguez was fatally shot in the head while he was standing or after he collapsed to the ground," Swartz's lawyer Sean Chapman wrote in a motion.

Chapman said the government's theory is that Elena Rodriguez collapsed to the ground but was still alive and no longer a threat. Under this theory, Swartz acted without legal justification because he fired at him after he was incapacitated, Chapman said in a motion.

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"It is the defense position that Agent Swartz was legally justified in using lethal force. Further because the decedent was fatally injured with one of the very first shots while he was an active threat Agent Swartz is not criminally liable for Elena Rodriguez's death," Chapman wrote.

He also cited notes written by prosecutors in 2014, after a meeting in Mexico, that show Mexican officials believed Elena Rodriguez was killed by the first volley of shots.

Chapman did not respond to calls for comment. The U.S. Attorney's Office declined to comment.

Historic case

Swartz is the first Border Patrol agent to be tried or held accountable in any way — including internal discipline — for killing someone after firing across the border into Mexico.

There have been five other such killings since 2010 and no other agent has been charged. Families in Mexico have so far been prohibited from suing the agents, and the issue has gone to the Supreme Court and is back in two U.S. Circuit Courts of Appeal.

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"It's the first time in the history of the country that a Border Patrol agent has been prosecuted for a cross-border shooting," said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project. "You cannot overstate the historical importance of this case."

The U.S. government does not lightly bring these prosecutions, Gelernt said. "The facts are so egregious here."

Swartz is only the third Border Patrol agent to be prosecuted for killing someone since 2005, Arizona Republic data shows. He is the first to be prosecuted by the U.S Department of Justice. None has been convicted.

Josiah Heyman, director of the Center for Interamerican and Border Studies at the University of Texas-El Paso, said the trial may answer key questions about the liability of Border Patrol agents who kill people in Mexico when firing from the United States.

"Is there a zone of impunity in terms of shooting across the border, especially when U.S. government officials are shooting across the border?" he asked.

Will it be politicized?

Heyman said there is the potential for the case to be politicized, especially with President Donald Trump pushing to build a wall along the southern border.

"I don't think there's any question" the case could become a political, Heyman said. "It's a real possibility."

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He said Trump's continued reference to the dangers of the border and promise to build the wall could bring national attention to the case.

Gelernt said he hoped the case would not be politicized

"Regardless of whether one wants different or stricter immigration laws, we don't think anybody is in favor of the unjustified killing of a young boy," Gelernt said.

Part of a cartel?

A central claim of the defense is that Elena Rodriguez was a drug smuggler working for a cartel.

Border Patrol officials have argued from the beginning that he was part of a drug organization and had been throwing rocks. Elena Rodriguez's family members and some witnesses and advocates have insisted the teenager was simply walking down the street when he was shot.

Chapman contends Elena Rodriguez was a cartel member. He has also tried to introduce the idea that Elena Rodriguez had been on the U.S. side of the border and climbed over the fence back into Mexico.

Chapman has tried to get Judge Raner C. Collins to order a deposition of a witness Chapman says saw Elena Rodriguez on the U.S. side the night of the shooting. He is also having an expert testify that marks on Elena Rodriguez's shoes that night are similar to the rust marks Border Patrol agents see on smugglers who climb the fence.

Calls to two representatives of the Border Patrol union were not returned.

Prosecutors last year said they would not dispute that Elena Rodriguez was throwing rocks at Border Patrol agents in effort to help smugglers on top of the fence. But they argue it's irrelevant.

"This is not a drug-trafficking case," the U.S. Attorney argued. "This is simply a case about whether (Elena Rodriguez) presented a threat of serious bodily injury or death by throwing rocks into the United States regardless of his motives."

Use of force

The Elena Rodriguez killing is one of several problematic killings by the Border Patrol since 2005.

In 2013, a Republic investigation found Border Patrol agents who use deadly force face few, if any, consequences, even when the justification for the shooting was questionable, including when shooting unarmed teenagers in the back.

The Republic also found Border Patrol agents were not required to carry long-range less lethal weapons that are effective at dispersing rock throwers, including in areas where "rockings" are common.

In response to mounting criticism of the killings, the Border Patrol tightened its use of force policy in 2014 to require agents take cover or distance themselves from rock-throwers before using deadly force. The number of people killed by the Border Patrol has dropped since then.

Since 2005, on-duty Border Patrol agents and Customs officers have killed at least 57 people, including at least 16 Americans, according to The Republic's database of Border Patrol killings. Swartz is the only agent to face consequences in those killings.

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