Jurors found Border Patrol agent Lonnie Swartz not guilty of involuntary manslaughter, two hours after they told the judge they were deadlocked and he told them to keep deliberating.
The acquittal came Wednesday in the Tucson courtroom of U.S. District Court Judge Raner Collins.
The jury didnβt fill out the verdict form on a voluntary manslaughter charge, so prosecutors are arguing Swartz could be tried again, but defense attorneys say otherwise.
Because the agent was acquitted of the lesser charge of involuntary manslaughter, he cannot be retried on the higher charge of voluntary manslaughter, the defense attorneys said.
The judge set a status conference on the case, and those questions, for Dec. 11.
Swartz was on trial for the second time in the 2012 cross-border shooting death of 16-year-old Jose Antonio Elena RodrΓguez.
βItβs been a long roadβ for Swartz, said Sean Chapman, one of two attorneys representing the agent. βAnd now itβs over. The jury did the right thing.β
He said that Swartz, who is on administrative leave, was weeping and relieved. Chapman said he didnβt know whether Swartz will return to the Border Patrol.
While the prosecutors couldnβt comment on the verdict, Assistant U.S. Attorney Wallace Kleindienst said they respected the juryβs decision.
Collins told the jurors they could go downstairs to the jury room if they wanted to speak with news reporters, but none did.
Swartz was acquitted of second-degree murder charges in April, but the first jury wasnβt able to make a decision on the lesser manslaughter charges.
The government decided to retry the case and the second trial began Oct. 23. Jurors began deliberating Friday afternoon.
βJustice was done correctly,β said Art Del Cueto, who represents the Border Patrol union. The union is βhere to support our agents when we think thereβs been an injustice,β he said.
Six years earlier, on Oct. 10, 2012, Swartz fired his pistol through the Nogales border fence 16 times in 34 seconds, from three different positions, in response to rock throwers.
Elena RodrΓguez was struck eight times in the back and twice in the head.
The federal government argued Swartzβs use of deadly force was not justified and that the agent had continued to shoot the teen, while he was still alive but on the ground, because he was fed up.
While defense attorneys didnβt contest that the agent shot and killed the teen, they argued it was in self-defense. Also, because the teen was killed by one of the first bullets, they said, the rest of the shots are legally irrelevant.
The defense described a chaotic scenario in a dangerous area along the border known for smuggling, where βrockingsβ are not uncommon.
Swartz testified he had to make a split-second decision and elected to defend himself and his fellow law enforcement officers that night.
No other law enforcement officers on the scene fired their weapons.
βIt is very painful for a mother to hear that they declared innocent the person who killed her son,β said Elena RodrΓguezβs mother, Araceli RodrΓguez. βWe will keep fighting. We are not going to go away.β
She filed a civil lawsuit against Swartz for βexcessive and unjustified force.β
The question of whether she can sue is pending before the U.S. Supreme Court, which asked last month for the views of the Trump administration on whether a Border Patrol agent can be held liable in civil court for the shooting through the border fence.
Supporters of the family question the defenseβs use of an anonymous FBI informant, who said he talked to two people who said Elena RodrΓguez had been working with them. Family members insist the teen was simply walking home that night.
They wonder why James Tomsheck, former head of international affairs for Customs and Border Protection, wasnβt called to testify.
In a 2016 New York Times story, Tomsheck was quoted saying the shooting was βthe most egregiousβ of any excessive-force cases he had seen.
The video footage from the scene, which he saw within a week of the incident, βdemonstrated that JosΓ© Antonio was certainly not throwing rocks at the time he was shot,β Tomsheck said.
Del Cueto, of the border agentsβ union, said supporters of the family βare looking for revenge, not justice.β He said itβs understandable that they are upset by the verdict, βbut they need to understand there was a decision and we should respect that decision.β
Richard Borane, who belongs to a group called Border Patrol Victims Network, said the implication of the verdict is that it gives agents βa green light to go ahead and continue shooting people in the back.β
βAll thatβs left for us is to protest. We canβt expect any justice here, that is clear,β he said after Wednesdayβs court hearing.
Minutes later, Borane started chanting βfor justiceβ right outside the doors of the federal courthouse. After being asked several times to move back, he was arrested by Federal Protective Services officers.
βWe want justice!β Borane continued to chant.
