Around 11:30 at night on Oct. 10, 2012, Nogales, Arizona, police responded to a report of suspicious activity at the border wall. A couple of athletic youths, wearing what looked like loads of marijuana on their backs, were climbing the wall into the U.S.
The wall that divides Nogales from Nogales, Sonora — its much larger Mexican twin – snakes across the valley in various forms, with the downtown stretch where this event took place among the more formidable. It’s a 20-foot high barrier of square iron poles, set about four inches apart, connected by metal plates welded across the top, and perched atop a hill sloping another 20 or more feet down into Mexico. It’s difficult, but not impossible, to climb.
Shortly after the police arrived that night, kids on the Mexican side began throwing rocks over and through the fence, evidently to provide cover for the smugglers, who’d hidden their load on the Arizona side and were in the process of scaling the fence back to Mexico. The cops called for help from the U.S. Border Patrol.
Tall, red-headed agent Lonnie Swartz responded to the call. According to reports, within moments of appearing on the scene and without warning the other officers, Swartz pulled out his gun and began shooting through the fence. Stopping to reload, he shot a total of 16 times.
Across the line, at the bottom of the ravine and against a building on the opposite side of a narrow street, ten of those bullets found their target in the back of the head and torso of 16-year-old Jose Antonio Elena Rodriguez. The teen died face-down on the sidewalk.
The death prompted an outcry in Nogales, and after a lengthy investigation, in the fall of 2015 federal officials charged Swartz with second-degree murder. He is on administrative leave from the Border Patrol and scheduled to go on trial in Tucson in March, 2018.
The case has called into question not only Swartz’s actions, but whether or not the Border Patrol, under pressure to hire as many as possible as fast as possible, is screening and training agents adequately. It also raises legal questions about what rights Mexicans have when injured or killed in Mexico by law enforcement on the U.S. side of the line.
Border Patrol agents are rarely prosecuted for actions taken under color of law enforcement, and the case brings to mind a similar one from the early 1990s. That murder trial became known as “Rodney King of the Border,” because it paralleled, in many ways including its outcome, the 1992 trial of the four white Los Angeles cops who beat black motorist Rodney King.
On the evening of June 12, 1992, Border Patrol Agent Michael Elmer killed a 26-year-old man named Dario Miranda Valenzuela during a botched drug stakeout in the hills about eight miles west of Nogales, Arizona.
Miranda had several things in common with Jose Elena Rodriguez. Like Jose, he had grown up in a working-class barrio of Nogales, Sonora, with an absent father. (Jose’s father was imprisoned and, shortly after his release, murdered when Jose was 13.) Both were acquainted with street life and evidence indicates they were involved in drug smuggling when they were killed, although they were unarmed and shot in the back while apparently attempting to flee.
The circumstances of their deaths were different. Jose died on a city street, with numerous eyewitnesses and dozens of people within earshot. Elmer killed Dario on a remote hillside with only his partner for a witness. He then hid the body and did not report the shooting. According to the partner, who turned him in the next day, Elmer had wanted to plant a gun on Dario, and failing that, drag him into Mexico and bury him there.
Despite these shocking revelations, Elmer was acquitted on all charges. Perhaps the jury was swayed by evidence indicting Dario was operating as a scout for drug smugglers, and not just crossing to find work, as his family claimed.
He wore camouflage clothes, had cocaine in his system and a little pot in his pocket, and was skulking around with several others in the middle of nowhere on the U.S. side right before dark. (The prosecutor must have thought the less said about what Dario was doing out there the better, because none of his companions that night were called to testify.)
The Elena Rodriguez case may turn on similar evidence. In June, the defense conceded the boy, who carried a cell phone, had been throwing rocks. The prosecution has said all along he was one of the kids providing cover for the smugglers, if not a smuggler himself. Lonnie Swartz’s supervisor, who spoke to the agent shortly after the shooting, said Swartz told him, “They were throwing rocks and hit the dog,” meaning the police K-9 (who was apparently unhurt).
A crucial difference separates these cases, and that is what side of the border the victims were on when they died. Dario was on the U.S. side, and there was no question he had rights under the Constitution. But what rights does Elena Rodriguez, a Mexican citizen killed in Mexico, have under U.S. law?
The U.S. Supreme Court recently ruled on this question in another case that may pertain.
In 2010, U.S. Border Patrol Agent Jesus Mata Jr. shot from the U.S. side and killed Mexican teen Sergio Hernandez, who was standing on the Mexican side of a culvert separating El Paso from Ciudad Juarez. Although Mata was not criminally charged, the teen’s parents attempted to sue in civil court for violation of their son’s Constitutional rights.
The Fifth Circuit at first ruled Sergio’s parents couldn’t sue in U.S. court, because the boy was Mexican and in Mexico at the time of his death. But in June, 2017, the U.S. Supreme Court ordered the Fifth Circuit to revisit that decision. The court was persuaded by the argument that Agent Mata could not have known Sergio’s nationality when he killed him, and in any case, people injured or killed by U.S. agents firing across the border must be given due process, posthumously if not before. The border is not a free-fire zone.
The Supreme Court decision, for the moment at least, means Elena Rodriguez’s family’s lawsuit against Swartz and the Border Patrol can proceed.
A similar lawsuit ultimately resulted in a settlement for Dario Miranda’s widow, although Elmer was acquitted of violating Dario’s civil rights during a second trial in Phoenix in 1994. The widow, as well as her and Dario’s two children, two and four at the time of his death, received lifetime annuities totaling about $500,000. Elmer’s lawyer called it “a gift from the U.S. government,” adding, “Legally, they aren’t entitled to anything.”
—Sept. 27, 2017