Vol. 79/No. 37      October 19, 2015

Border Patrol agents and Customs officers have killed at least 52 people since 2005. But this is only the third time a cop has been indicted in any of those deaths, and the first to face federal charges. In one of the earlier cases the charges were dismissed; the other ended with a hung jury.

The Border Patrol claims the Oct. 10, 2012, shooting was justified, alleging that Elena was throwing rocks across the border. But eyewitnesses say he was simply walking home from a basketball game. The youth’s mother and grandmother refused to keep quiet and spoke out at numerous protests demanding the names of the cops involved, their indictment and to see the video from a Border Patrol camera.

The Border Patrol still refuses to release the video of the shooting. It was not until November 2013 that the name of the officer, Lonnie Swartz, was made public.

According to the Arizona Republic, Swartz emptied his .40-caliber pistol and then reloaded and continued firing through the metal slats of the border fence.

Swartz was standing on the U.S. side of the roughly 20-foot-high fence, which itself is on a 25-foot embankment. “It would be all but impossible for a rock thrown from Mexico to hit someone near the fence on the U.S. side,” the Republic notes.

“The U.S. Border Patrol agents who killed my son in a senseless act of violence are still out there and they need to be brought to justice,” said Araceli Rodríguez, his mother, when the American Civil Liberties Union filed a federal civil rights lawsuit in her name in July 2014.

In July this year the U.S. District Court in Arizona rejected the attempt by Swartz to have the civil suit dismissed. The cop argued that since the death occurred in Mexico, U.S. constitutional protections don’t apply and that Border Patrol agents are immune from prosecution for actions carried out while on duty. Judge Raner Collins ruled that the case could continue under the protections of the Fourth Amendment, which prohibits unreasonable searches and seizures.

The judge noted that “U.S. Border Patrol agents not only control the U.S. side of the fence, but through the use of force and assertion of authority, also exert control over the immediate area on the Mexican side,” including where Elena was killed.

The federal criminal charges are the result of “three years of work by us, the family, the lawyers, and reporters, of all the people who have helped us,” Taide Elena, José Antonio’s grandmother, told the Republic. “We are aware that we still have a long way to go but this is a very big step.”
 
 
Related articles:
Vigil for slain youth demands release of cop video
 
 
 
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