In a move that some worry may embolden Border Patrol agents to use force more often, an Arizona jury ruled last week that an agent was not guilty of manslaughter for fatally shooting a Mexican teenager 10 times through the border fence in 2012. The teenager had allegedly been throwing rocks.
On Wednesday, Lonnie Swartz won his latest victory in Tucson, months after being acquitted of second-degree murder by another jury in the killing of 16-year-old Jose Antonio Elena Rodriguez. The ruling came before a Thanksgiving weekend marked by reports of agents firing tear gas at migrants approaching the border from Mexico. Critics have expressed outrage at images of young children fleeing the attack.
President Trump, while stoking fears about the migrant caravan traveling from Central America, also said in November that American agents would be justified in shooting a migrant who throws rocks. “They want to throw rocks at our military, our military fights back,” he told reporters. “I told them to consider it a rifle. When they throw rocks like what they did to the Mexican military and police I say consider it a rifle.”
The case has gone through a rare but lengthy court battle, as Elena Rodriguez’s grandmother, with the help of former Nogales, Arizona, district judge Roberto Montiel, has pushed tirelessly for justice. It took two and a half years for Swartz to get indicted, according to NPR.
After the verdict Wednesday, protesters complained that former Customs and Border Patrol Internal Affairs Officer James Tomsheck, who reported that he saw a video showing Elena Rodriguez was not throwing rocks, did not testify during the trial, according to NPR. Tomsheck left CBP in 2014 after filing whistleblower complaints.
Swartz’s defense has said that he was following training, arguing that a thrown rock can be deadly. People sometimes throw rocks from the Mexican side of the border to distract agents from smugglers attempting to cross the border. According to the Associated Press, the prosecution in the murder trial did not contest that Elena Rodriguez had been throwing rocks while smugglers crossed the border into Mexico, but they did argue that it did not justify deadly force. Swartz fired at the teenager 16 times, hitting him 10 times in his back and head. Elena Rodriguez’ family has a civil case pending before the Supreme Court.
The Guardian reported in May that American border agents have caused the deaths of more than 90 people since 2003, including at least six children and at least 28 U.S. citizens. Most of the deaths were caused by shootings, and some happened far from the border, up to 160 miles inland, and in states like Florida and Minnesota. While the U.S. government has paid out millions in a small number of settlements, only two other cases examined by the Guardian have resulted in jury trials—neither of which led to convictions.