More than two years after a Border Patrol agent fired through the border fence and killed a Nogales, Sonora, teen, a federal judge ordered the agent’s name released.
Judge Raner Collins in Tucson said he considered the agent’s “need for anonymity and balanced the risk of ridicule, injury, harassment, embarrassment and threats to defendant and his family against the public’s strong interest for disclosure in this case.”
While the agent’s concerns are valid, the judge said, they are outweighed by the public’s right to know. Collins also ordered for the pleadings to be unsealed.
José Antonio Elena Rodríguez, 16, was killed at about 11:30 p.m. on Oct. 10, 2012, in Nogales, Sonora.
The Border Patrol agent, identified Thursday as Lonnie Swartz, shot through the border fence near the DeConcini Port of Entry.
The Border Patrol said agents were responding to rock throwers, but witnesses say Elena Rodríguez was walking down the street, about 30 feet from the cliff that holds the tall steal beams that make up the border fence. An autopsy report showed Elena Rodríguez, who was unarmed, was shot about 10 times through the back. Araceli Rodríguez, the teen’s mother, is suing the agent civilly, alleging violation of her son’s rights.
Sean Chapman, the attorney representing Swartz, did not return multiple calls and emails seeking comment after the ruling, but during the hearing he argued that he feared for his client’s safety given that this type of case is so emotionally charged and other agents in similar situations have been threatened.
He said the attorneys representing Rodríguez had used “unnecessary, hyperbolic and inflammatory rhetoric” in their complaint.
“They are trying to move this case beyond the agent’s action to something that would be nationally reported on and spark the debate on immigration,” Chapman said.
But James Lyall, one of the American Civil Liberties Union attorneys representing Rodríguez, said they stood by their allegations. “This is one of the most notoriously violent and effusive law-enforcement agencies in the country,” he said.
In the complaint, the attorneys described Elena Rodríguez’s killing as “brazen and lawless,” and said Border Patrol agents have been responsible for “multiple unjustified deadly shootings and physical abuses along the U.S.-Mexico border over the past several years.”
There have been 48 cases since 2005 in which agents have killed people in the line of duty, the Arizona Republic said. None has been prosecuted.
For the most part, the Border Patrol does not release the names of agents involved in shootings during the line of duty. In some cases, the agents have been identified by local law-enforcement agencies or, as in this case, after the family files a civil lawsuit.
Chapman is also representing in a civil suit an agent who fatally shot a Douglas teen in 2011, but in that case he didn’t file any motions to have the agent’s name be kept under seal.
In order to be able to proceed anonymously, the attorneys representing Rodríguez argued the agent has the burden to prove and present specific facts that would justify sealing his name.
“We are aware of no case in which the identity of a police officer who is acting in the line of duty and being sued has had his or her identity sealed,” said Lee Gelernt an ACLU attorney from New York representing Rodríguez.
“You would have to have specific, concrete evidence of real, serious harm before you could even entertain this notion,” he said.
“The public has an enormous interest in what goes on at the border,” he said. “The public will want to know if he’s been disciplined, if he committed a crime, if there are third parties that may have information and come forward.”
Chapman said the public needed to know about the case and what was going on, but there was nothing intrinsic about his client.
“If this was an agent who had a history of violent behavior or something unique about him, if this wasn’t the first time something like this had happened, that would be different, but that’s not what we are talking about here,” he said.
“I think it was the right decision,” said Luis Parra, also part of the team of attorneys representing Rodríguez. “The family has been waiting for this for over two years.”
Chapman has filed motions to dismiss the civil case and to stop discovery, because the criminal investigation is still pending.
