The trial of a Border Patrol agent charged with murder in the cross-border shooting of a Nogales teen was rescheduled Monday for March 22 before Chief Judge Raner Collins.
As is common in such cases, the agentโs attorney requested a continuance.
On Oct. 10, 2012, Agent Lonnie Swartz fired through the border fence into Nogales, Sonora, striking Josรฉ Antonio Elena Rodrรญguez, 16, about 10 times, mostly in the back.
A federal grand jury indicted Swartz in September on second-degree murder. The indictment states Swartz โdid with malice aforethought, and while armed with a P2000 semi-automatic pistol, unlawfully kill J.A.E.R.โ
Swartz is the first Border Patrol agent federally indicted in a use-of-force death. There are at least two videos of the incident, but they havenโt been released and until recently no one had commented publicly on them.
However, in a December interview with the TV station Telemundo, former Customs and Border Protection internal affairs chief James Tomsheck gave details of the footage he reviewed.
Tomsheck said a Border Patrol agent and two Nogales police officers who had a canine with them watched two marijuana smugglers climb the border fence and return to Mexico.
โThey did not appear in any way to display any concern for their (the onlookersโ) safety,โ Tomsheck told journalist Josรฉ Dรญaz-Balart. โA second Border Patrol agent arrives on scene, gets out of the vehicle, walks to the border fence, draws his firearm and begins firing through the fence into Mexico.โ
The shooting happened about 11:30 p.m. when Nogales police officers and Border Patrol agents responded to a call of suspected smuggling at the border fence that separates the downtown area of the Ambos Nogales.
The agents were barraged by rocks thrown from the Mexican side of the border after two people dropped a load of drugs and fled to Mexico, the Border Patrol has said.
A witness later told the Arizona Daily Star that Elena Rodrรญguez was not throwing rocks but walking on the sidewalk of Calle Internacional, which runs parallel to the border fence.
After visiting the site, Tomsheck told Dรญaz-Baart that he determined Elena Rodrรญguez couldnโt have been a real threat to the agents because the boy was so far from them.
โThe distance from where he was, was such that no projectile he might throw could possibly clear the border fence,โ he said.
Swartz shot from the top of a cliff through a gap in the fencing thatโs less than four inches wide.
The Border Patrol has come under increasing scrutiny for its use of deadly force and what many call a lack of transparency and accountability.
More than two dozen people have died as a result of encounters with the Border Patrol since 2010. None of the agents involved has been convicted or publicly disciplined.
Tomsheck, who first told the Center for Investigative Reporting that at least a quarter of the shootings were โhighly suspect,โ said there was a cover-up culture in the agency.
โThey frequently attempted to put forth information in the initial briefings that was false and in some cases completely fabricated in an effort to give the initial impression that it was a legitimate use of force,โ he told Telemundo.
CBPโs Commissioner R. Gil Kerlikowske has pledged to make the agency more transparent and accountable.
Among other things, he secured investigative authority for the office of internal affairs, is considering the use of body cameras, initiated the expansion of the Spanish language complaint system, released the agencyโs use-force policies and enhanced scenario-based training.
