TUCSON, Ariz. (CN) – Former Border Patrol Agent Lonnie Swartz wasn’t scared for his life in October 2012 when he fired his handgun through a border fence, killing a Mexican teen who was lobbing rocks up and over the barrier, the lead prosecutor in Swartz’s federal manslaughter trial told the jury Friday.
He was angry.
“He was going to stop those rocks. It didn’t matter the cost,” Assistant U.S. Attorney Mary Sue Feldmeier told the jury during closing arguments in U.S. District Judge Raner Collins’ courtroom.
Swartz, a two-year veteran, opened fire at about 11:15 p.m. on Oct. 10, 2012 through an urban fence separating Nogales, Ariz. from Nogales, Mexico. Video captured by Border Patrol cameras shows Swartz fired at Jose Antonio Elena Rodriguez, 16, from three positions along the fence, walking slowly from one spot to the next, stopping at one point for eight seconds to reload.
Swartz hit Elena, who was throwing rocks 36 feet up and over the barrier to help drug smugglers escape, with 13 bullets, all but three from the back. In 2015, the agent was charged with second-degree murder. A different jury acquitted Swartz in April on that charge but deadlocked on manslaughter charges.
Defense attorney Sean Chapman told the jury Friday that Border Patrol agents are trained to consider rocks deadly and to respond accordingly. Swartz had been involved in seven “rockings,” as agents call the rock attacks, in his two years on duty, and in each case he used less-lethal force such as a pepper-ball gun. He only resorted to deadly force because he did not have another option to end the threat that night, Chapman said.
“Each time he had the option to use less-lethal force in the face of rocking, he did,” Chapman said.
Chapman played audio of radio traffic of a fellow agent yelling, “We’re getting rocked. We’re getting rocked!” pointing out the excitement and apparent fear in his voice.
In the midst of a tense, rapidly evolving situation, Swartz had just heard a rock hit the border fence, heard a thud he believed was a Nogales police dog being hit, and heard fellow agent Brandon Wynecoop say a rock hit him.
“Agent Swartz doesn’t have to wait until someone gets hurt. He’s allowed to use his experience and say, ‘Hey, this is a dangerous, scary, deadly force situation,’” Chapman told the jury, calling it a split-second decision.
Feldmeier countered that other agents simply stepped back or took cover.
“He didn’t have to use force that day. He could have done what Agent (Brandon) Wynecoop did. He could have done what Officer (John) Zuniga did,” referring to a Border Patrol agent and a Nogales police officer at the scene.
Even a supervisor who heard the radio call that rocks were falling told agents “Well, get out of there,” Feldmeier said.
Feldmeier disputed Swartz’s claim he was in danger and protecting himself and fellow agents. She called the rocks, which she said carry only the force of gravity by the time they traveled up and over the fence, an “indignity” that can be dangerous but aren’t always.
“We’re not saying it’s snowflakes, folks, but they’re coming down at the same velocity as a baseball in the outfield,” she said.
Feldmeier noted Swartz’s methodical approach to and along the wall, counting off to the jury the eight seconds it took him to walk across the street to the fence, then the 8 seconds he paused to reload.
“How many thoughts went through your mind during that eight seconds?” she asked the jurors. “That’s not split-second.”
Chapman cast the timing of the 34 second stretch of shooting, during which Swartz testified he remembers nothing, in a different light.
“This thing happened in half a minute. Half a minute,” Chapman said, urging jurors to tick off 30 seconds in the jury room to see how little time it is.
Swartz testified earlier this week that he kept firing after the boy fell, because he thought he saw a second rock thrower. Much of the expert testimony focused on which bullet killed Elena.
If, as prosecutors claim, the first shots only immobilized the boy, then Swartz killed him while he was on the ground alive. If one of the first shots killed the teen, then the other shots Swartz fired into the fallen boy were a terrible mistake, but legally irrelevant.
Lena’s mother Ariceli Rodriguez sued Swartz over the shooting, and the Ninth Circuit recently ruled that Swartz is not protected by his position as a law enforcement officer and that civil case can move forward.
The lawsuit is still pending.