TUCSON, Ariz. (CN) – U.S. Border Patrol Agent Lonnie Swartz was scared, stressed and under attack when he fired his handgun in the dark through the fence separating Arizona and Mexico in October 2012, killing an unarmed teenager on the Mexican side of the border, Swartz’s attorney said Wednesday during opening statements in Swartz’s second-degree murder trial.
Attorney Sean Chapman painted a picture of ordered chaos the night Jose Antonio Elena Rodriguez, 16, died. Chapman played a brief recording of radio traffic among agents responding to drug smugglers scaling the 22 foot urban wall that separates Nogales, Sonora from Nogales, Ariz. One agent can be heard on the radio yelling, “I’m hit!”
Rocks, some bigger than baseballs, were falling all around the agents, so Swartz did exactly as he was trained to do, Chapman told the jury. He responded with justified lethal force to a potentially lethal threat.
“Rocks are dangerous … Rocks kill. Rocks maim. Rocks can crack a skull or break a bone,” Chapman said, holding aloft a fist-sized rock.
Prosecutors concede that Elena may have been part of a smuggling crew and lobbing rocks up and over the border wall in support of the smugglers atop the wall. But Swartz was never in immediate danger when he fired his weapon, Assistant U.S. Attorney Mary Sue Feldmeier told the jury.
“Mr. Swartz, when the rocks started falling, was in a position of cover … He obviously wasn’t in danger, because he calmly walked through the area where the rocks were supposedly falling,” Feldmeier told the jury and alternates comprised of five men and 11 women.
Feldmeier showed the jury photos of the wall from the agents’ and victim’s perspective. The 22 foot wall sits atop a 14 foot cliff on the Mexican side of the border – forcing any rocks thrown to arc a minimum of 36 feet up and fall virtually straight down on the U.S. side.
Swartz, who had been working nearby at a border crossing port, ran to assist the agents. When he arrived, two men were on the border wall. Surveillance video Chapman showed the jury shows Swartz slowly approach the wall with an arm outstretched.
He then fired three shots, walked roughly 45 feet away, fired 10 more shots and stopped to reload before firing three more shots. Ten of those bullets hit Elena, three in the head. All but the first three of those shots are irrelevant to the case, because one of those first shots hit Elena behind his right ear, killing him instantly, Chapman said.
Swartz kept firing because bushes, darkness and the wall itself obstructed his view, and he thought he was firing at a second rock thrower. The first shots – the ones that Chapman claims killed Elena – were justified, and that’s all that matters in this case, Chapman told the jury.
Prosecutors will argue that Elena was alive when he fell, but was no longer a threat because one of the first shots hit him in the spine, paralyzing him. Swartz then slowly walked along the border fence, showing no signs of taking cover or being in danger, for 10 seconds before firing, reloading, and firing again, Feldmeier said.
“One … Two … Three … Four …” she said, slowly counting off the 10 seconds Swartz was lingering in an area he claims rocks were raining down.
Swartz had to make a “split-second decision,” and he fired to protect himself and his fellow agents, several of whom were in the rock landing zone, where a squad car was hit and so many rocks were falling that a Nogales Police Department officer who was at the scene used his canine partner as a shield, Chapman said.
“After the shooting, Lonnie walked over to a telephone pole across the street, and threw up,” he said.
Deadly force is only justified when a person is convinced they or others are at immediate risk of death or serious injury. That clearly wasn’t the case that day, whether or not rocks were thrown, because no other law enforcement officer among at least five at the scene drew a weapon in response to the rocks, Feldmeier said.
“On that day Lonnie Swartz became the judge, jury and executioner … He cannot use his badge as a shield against a murder charge,” she said.
The jury shouldn’t view the situation from the “calm vantage of hindsight,” but should consider Swartz’s frame of mind during the “rapidly evolving” situation, because only the agent’s frame of mind in that moment matters, Chapman said.
Swartz, in a black suit with his red hair neatly combed, sat mostly motionless during the opening statements, occasionally taking notes on a yellow legal pad. A group of Border Patrol agents sat behind the defense table in support of their colleague.
Rodriguez’s mother, Araceli Rodriguez, and grandmother sat quietly with other family members behind the prosecutors’ table, Rodriguez occasionally shaking her head during Chapman’s opening statement. Rodriguez, who sued over her son’s death in 2014, maintains her son was caught in the wrong place at the wrong time.
“He was doing nothing but peacefully walking down the street by himself when he was gunned down,” she said in her lawsuit, which is pending before the Ninth Circuit. “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.”
The trial is expected to last about five weeks.
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