TUCSON, Ariz. (CN) – A federal jury on Monday found a U.S. Border Patrol agent not guilty of second-degree murder in the death of a Mexican teen he shot and killed in 2012 through an urban fence separating Arizona from Mexico.
Lonnie Swartz, a two-year Border Patrol veteran, opened fire at about 11:30 p.m. on Oct. 10, 2012, hitting Jose Maria Elena Rodriguez 10 times, all but one from the back. Prosecutors concede the 16-year-old may have been part of a crew throwing rocks from Mexico at agents in the U.S. trying to catch smugglers who had dropped 20 pounds of marijuana in the U.S.
The jury deadlocked on voluntary and involuntary manslaughter charges, which it also had instructions to consider. U.S. District Judge Raner Collins released the jury at about 3 p.m. Monday after a week and a day of deliberating. The panel reported a deadlock Friday, but Collins sent them back to deliberate more.
Swartz fired 16 shots through the border fence – three from one spot, then 13 from another spot, stopping to reload after 13 shots because he thought he saw a second rock thrower. Only the first shots mattered, defense attorney Sean Chapman told the jury in his closing argument.
“Mr. Elena Rodriguez was killed within 10 seconds of when Agent Swartz elected to use deadly force. By the time he moved to a second position, Mr. Elena Rodriguez was dead … He made a mistake, but that’s not a crime,” Chapman said.
Prosecutors claimed that because Swartz did not take cover to eliminate the threat, but instead calmly walked through the supposed falling rock zone toward the wall to open fire, it was avoidable, not a last resort, which is required for use of deadly force, according to Border Patrol documents prosecutors showed the jury.
“It was not a last resort to walk across the street,” assistant U.S. Attorney Wallace Kleindienst told the jury during closing arguments. “He had time to reflect on what was happening.”
Swartz fired on the teen to protect himself and fellow agents, several of whom were in the zone of falling rocks, the defense claimed. Although no other agents opened fire and all took cover from the rocks to avoid the threat, Swartz chose to address it directly, Chapman told the jury.
A status conference is scheduled for May 11 to discuss the possibility of further action in the case.
Elena Rodriguez’s mother, Araceli Rodriguez, has a lawsuit pending before the Ninth Circuit over her son’s death.
“He was doing nothing but peacefully walking down the street by himself when he was gunned down,” she said in her lawsuit. “He was not committing a crime, nor was he throwing rocks, using a weapon, or in any way threatening U.S. Border Patrol agents or anyone else.”