TUCSON, Ariz. (CN) – A former U.S. Border Patrol agent who shot a Mexican teen through an urban border fence in southern Arizona doesn’t remember much of the incident, he testified at his manslaughter trial Tuesday.
Lonnie Swartz, a two-year Border Patrol veteran, opened fire shortly after 11 p.m. on Oct. 10, 2012, killing Jose Antonio Elena Rodriguez, 16, who prosecutors and defense attorneys have agreed was throwing rocks over the border fence to distract agents on the U.S. side from arresting drug smugglers. Swartz remembers opening fire, but little of what happened next, he said on the witness stand.
“Six years I’ve dealt with this. Six years,” he said, his voice wavering. “I’ve tried to put the pieces together. It’s a part of my memory that’s gone. I can’t explain it.”
Swartz was working at a border crossing checkpoint when he heard the call that smugglers were atop the fence, returning to Mexico after having dropped backpacks of marijuana in the U.S. As Swartz approached the scene, he drew his weapon.
Rocks, some bigger than a fist, were falling from the other side of the fence – something Border Patrol agents are trained to interpret as deadly force. Such “rockings” are common practice among smuggling crews hoping to deter agents from intervening.
Swartz testified that he remembers little of what other agents said that night or whether they had taken cover, drawn their weapons or were out of danger when he started shooting. He remembers hearing a rock “ping” off the top of the border fence, a thud he believed was a police dog being hit by a rock and fellow agent saying he was hit by a rock, he said.
In the quickly evolving situation, he took action to protect himself and fellow agents, he said.
“Sir, this situation is unfolding in seconds. Seconds. I elected to defend myself,” he tensely told Assistant U.S. Attorney Wallace Kleindienst. “My focus was solely on the rocks coming over that fence and stopping that action.”
Border Patrol agents are trained to consider rock throwing deadly force, meaning they are justified in responding with deadly force. But if the threat is eliminated, shooting isn’t justified. Prosecution experts have testified in the trial that Elena was knocked to the ground but alive and moving after the first shots, meaning Swartz killed a helpless man who was no longer a threat.
The defense has argued, and their witnesses testified, that the teen was dead after the first three shots, making the rest of the shots legally irrelevant because those shots were justified to eliminate the threat.
Swartz explained his slow, methodical approach to the border fence and his careful steps along the wall while he was shooting at what he thought was a second rock thrower.
“You never run to the fence. Ever. You can see through the bollards, and they can see you through the bollards,” he said.
As he approached the fence, Swartz testified, he saw two dark silhouettes in the low light on the Mexican side of the fence. One made a throwing motion then the second cocked an arm back. Swartz fired three shots at that point, but doesn’t remember how many shots he fired after that, he told the jury.
“That’s when things started to get distorted. Fuzzy? I don’t know how to word it,” he said.
Over the next 30 seconds, video captured by Border Patrol cameras shows, Swartz slowly walked along the fence, firing 13 more shots into Mexico, hitting the teen 13 times, 10 from the back. Other agents on the scene retreated to safety and did not draw their weapons.
A different federal jury, also in U.S. District Judge Raner Collins’ courtroom, acquitted Swartz in April of second-degree murder but deadlocked on voluntary and involuntary manslaughter charges. The second trial is entering the third week.
Elena’s mother, Ariceli Rodriguez, sued Swartz over the death, and in August the Ninth Circuit ruled that Swartz is not protected from that lawsuit by his status as a law enforcement officer. That lawsuit is still pending.