Border Patrol Killing Wasn’t Necessary, Expert Says

This border fence separates Nogales, Arizona from Nogales, Sonora. (AP file photo/Brian Skoloff)

TUCSON (CN) — The Border Patrol trains agents to de-escalate dangerous situations and to use lethal force only after all other options are exhausted, including retreat to cover, a former instructor from the Federal Law Enforcement Training Center testified Monday in the murder trial of a Border Patrol officer.

Lonnie Swartz is charged with second-degree murder in the Oct. 12, 2012 death of Jose Antonio Elena Rodriguez, 16, who prosecutors and defense attorneys agree had been throwing rocks over a fence separating Nogales, Mexico from Nogales, Arizona. Swartz fired 16 shots into Mexico, hitting Rodriguez 13 times, 10 times in the back and three in the head.

“There was clear, open space directly to the north,” to which Swartz could have retreated to avoid the rocks, said Allen Foraker, now retired, who trained Swartz on the use of deadly force.

Other agents had already taken cover, with one Nogales, Ariz. police officer using his canine partner as a shield.

Use of deadly force is allowed only when three conditions are met, Foraker said: the target must have the means, opportunity and intent to kill or do grievous harm to the agent or another person. Foraker called it the “jeopardy triangle.”

Swartz passed the two-hour block of instruction on use of deadly force by correctly choosing to shoot or not shoot in a series of 10 video simulations, said Foraker, whom prosecutors called as a $175-per-hour expert witness.

Rocks can cause grievous harm and could justify a deadly force response, Foraker said.

“Rocks can be lethal. Some rocks are lethal. Some rocks are not,” he testified.

Rocks thrown with a flat, horizontal trajectory are more dangerous than rocks falling almost vertically, such as in this case, because rocks falling vertically carry less energy.

Officers are also trained to take cover if possible, to avoid injury. Deadly force should be used only if all other options are exhausted, including taking cover, Foraker testified.

“Before you can use deadly force, it has to be necessary?” asked Assistant U.S. Attorney Mary Ann Feldmeier.

“Correct,” Foraker.

“And that means it’s a last resort,” Feldmeier said.

“Correct,” Foraker said.

He reiterated, under cross-examination by defense attorney Sean Chapman, that taking cover is an option and not required when agents are under attack.

After visiting the scene of the shooting and reviewing video and photos of it, Foraker concluded that the agents had numerous places to take cover,  including a building, a tree and Border Patrol vehicles parked in the area.

Prosecutors also called Nogales, Mexico police Officer Juan Pablo Espinoza Armenta, the first Mexican officer on the scene after the shooting. Armenta testified that no one touched the body after police arrived, contradicting reports that someone had kicked the body after the shooting.

“No one kicked the body that you saw?” Feldmeier asked.

“No,” Armenta replied through a translator.

The trial, which began on March 21, has focused attention on the use of deadly force along the border. It is expected to continue for three more weeks.

The killing also spawned a civil suit from Araceli Rodriguez, the victim’s mother. That case is pending before the Ninth Circuit.

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