Retrial to Begin for US Border Agent Who Shot Teen Across Border

By Jurriaan van Eerten, Al Jazeera

25 October 18

 

he street corner where 16-year-old Jose Antonio Elena Rodriguez was shot dead by a US Border Patrol agent six years ago has turned into a shrine.

Every 10th of the month, one or more family members visit the corner to replace the dried-out flowers with fresh ones and light a candle at the cross that marks the spot. It's on a street called Calle Internacional, next to a dilapidated house where the paint is crumbling off the walls.

On the other side of the street is a small cliff some eight metres high, out of which the metal border fence towers over the line that divides Mexico and the United States.

The homes of Nogales, Arizona can be seen through the poles, clearly better maintained than on the Mexican side of the border.

Taide Elena, Rodriguez's grandmother, points up at the fence.

"Look how high up ground on that side of the border is. Up there is where the Border Patrol was when he shot my grandson, who was standing down here."

Rodriguez was hit at least 10 times, mostly from behind. According to Border Patrol, the shooting by agent Lonnie Swartz was self-defence. People were allegedly throwing rocks over the border, which sometimes happens to distract Border Patrol guards from drug smugglers climbing over the fence.

"Jose Antonio was on his way home, which is a few blocks from here. Some other people were throwing rocks and he just happened to walk by," Elena tells Al Jazeera.

The grainy videos that exist show Swartz arriving at the scene, stepping out of his car and starting to shoot quickly afterwards.

According to the testimony of other Border Patrol agents present, Swartz did not consult them before shooting his weapon. Swartz shot 12 bullets, reloaded and then shot some more. Court records show there are several reports describing between 14 and 30 shots fired.

Rodriguez was unarmed. He was hit at least twice when he was lying on the ground, according to prosecutors, who said Rodriguez was still alive at that point. 

Although Elena has told the story many times, she starts crying as she describes the moment she learned from the prosecutors that Rodriguez crawled on the ground with 10 bullet holes in his body.

"He wanted to go around the corner," she says with her eyes filling up with tears and her voice breaking. "He wanted to go home."

In April, Swartz was acquitted in US federal court of second-degree murder. But the jury got stuck on charges of voluntary and involuntary manslaughter, for which Swartz will be retried in a case beginning on Tuesday.

No constitutional rights as a Mexican

Although the case of Rodriguez doesn't stand by itself - there are at least six other cases known of Mexicans who have been killed by shots fired over the border - experts explain that this is a particularly important case, for the fact that there is a court case at all.  

According to US law, parents who are foreign nationals are not allowed to sue through the American court system when the victim is on foreign soil when killed, as was judged by the Supreme Court in the case of the parents of Sergio Hernandez, a Mexican teen who was killed by Border Patrol in 2010.

Justices in the case questioned how allowing parents of victims in Mexico to sue would be any different from allowing the family of a victim of a US drone strike to file a complaint. 

The Mexican government can't do anything either. In the case of Hernandez, the Mexican government filed charges, but the US government refuses to extradite the Border Patrol agent to Mexico, rendering it effectively powerless.

In the case of Rodriguez, however, US prosecutors have brought charges against the Border Patrol agent.

Additionally, a US federal appeals court has also allowed for Rodriguez's mother to sue Swartz in a civil case. In August, the court ruled that Rodriguez's citizenship is irrelevant in this case, stating that it would be "bizarre" if border agent Swartz would be granted immunity only because the boy he shot was not a US citizen. 

If Swartz is found guilty of manslaughter or if Rodriguez's mother wins the civil suit, an important precedent would be set for other cases of cross-border violence by US agents.  

Lee Gelernt, a lawyer with the American Civil Liberties Union (ACLU) who represents Rodriguez's mother, told Al Jazeera that "this case has extraordinary significance, not only because of the grave injustice but because it raises the critically important question of when the United States Constitution applies across the border."

Standing at the cross, Elena stresses this importance and explains why she feels the need to fight so hard for this case.

"Apparently now Border Patrol is free to just shoot whomever they like over the border," she says. 

At least 97 deaths by Border Patrol

At a protest in Nogales, Arizona earlier this year, Ana Maria Vazquez, a volunteer for the organisation Victims of Border Patrol and good friend of the Rodriguez family, had put up banners with drawings of people who died at the hands of Border Patrol. 

She points out one of them, 16-year-old Cruz Velazquez Acevedo, who was caught trying to go through customs with a bottle of apple juice laced with methamphetamine in 2013.

Video of the incident appears to show the officials making him drink from the bottle. Three hours later, Velazquez died convulsing and screaming. Customs and Border Protection told US media last year that the officers were not disciplined for the incident. The US settled with the family in 2017.  

Vazquez pointed to another person drawn on the banner, a pregnant woman.

Twenty-eight-year-old Rubia Mabel Morales Alfaro was kicked by Border Patrol when apprehended trying to cross the border without proper documents close to San Diego last January, according to her statement. 

The woman called out that she was pregnant when she got kicked, to which the Border Patrol official allegedly replied, "That's your problem." Morales Alfaro later miscarried while in a US immigration detention centre. At the time, Border Patrol told local media it had no knowledge of the incident. 

"There are many more cases like these on my banner," said Vazquez, who is a displaced Colombian living in Mexico.

She started drawing the banner when she heard about the case of Rodriguez and started adding other cases to it. Soon enough she needed a second banner.

"We don't even know the names of some of the people I drew here. Some cases are very unclear because the incident happened somewhere deep in the desert. Some died because Border Patrol didn't arrange medical help soon enough." 

According to Vazquez, Rodriguez's family is special because of the fact that they keep fighting for justice.

Most people just give up and try to forget, saddened by their loss and frustrated by the difficulty of demanding at least a hearing, she said. 

Research by The Guardian showed that at least 97 people have died in encounters with US Border Patrol.

Claudia Patricia Gomez Gonzales, a 20-year-old indigenous Guatemalan, who was shot dead by a Customs Border Police agent earlier this year is number 98.

Border Patrol press spokesperson Carlos Diaz would not comment on individual cases but told Al Jazeera in an email that Border Patrol is trained in emergency medicine and CPR.

"The US Border Patrol rescued nearly 3,000 individuals in Fiscal Year 2017 who were in distress, trapped with no means of escape, or who found themselves lost along the Southern Border," he said.

'What changed are the people'

Back in Mexico, along the fence on the US side where Swartz was standing when shooting down at Rodriguez, is a white and green Border Patrol car. 

According to Border Patrol, its agents are permitted to defend themselves when rocks are thrown, a situation they say they found themselves in more often in the past years.

In a report, released late last year, US Customs and Border Protection said that there was 73 percent spike in incidents of rock throwing in fiscal year 2017.

These numbers have been contested, however, with some pointing to the way the incidents are measured. One encounter in Texas, for instance, was measured as 126 separate assaults.

On the other side of the border, by the cross, Rodriguez's grandmother Elena says the killing of her grandson fits into an overall change happening at the border.

Having lived in Nogales more than 40 years, of which 20 were on the US side, she has witnessed this change. What used to be a simple barbed wire division has turned into a fence with constant surveillance.

She also says the attitudes of those who patrol the border have changed, especially since 9/11. 

"What changed are the people. Some are still very friendly, but some newcomers are openly racist. I have had it happened that they don't want me to give the passport in their hands [and] put on the table," she says. "Another one interrogated me aggressively about my citizenship, even though she could simply see that I'm an American citizen."

She wonders what would have happened if all this would have been the other way around. "What if a Mexican official had fired into the US, killing a US citizen. This would have been an international crisis."