A federal grand jury indicted Border Patrol agent Lonnie Swartz on a second-degree murder charge Wednesday afternoon.
The charge stems from an Oct. 10, 2012, incident in which Swartz fired through the border fence into Nogales, Sonora, and fatally wounded 16-year-old Jose Antonio Elena Rodriguez.
Sean Chapman, who is representing Swartz in a civil lawsuit filed by the Elena Rodriguez family, said the U.S. Attorney’s Office informed him of the charge Wednesday afternoon.
Luis Parra, who represents the Elena Rodriguez family, said he also was informed by the U.S. Attorney’s Office of the charge.
Swartz will plead not guilty at the arraignment scheduled for Oct. 9, Chapman said.
“He will fight the charge,” he said. “I expect this case will go to trial.”
The U.S. Attorney’s Office did not immediately return a request for information.
The shooting occurred around 11:30 p.m. when Nogales police officers and U.S. Border Patrol agents responded to a call of suspected smuggling at the border fence that separates the downtown area of the twin cities.
The Border Patrol said the agents saw two people abandon a load of drugs and run into Mexico. The agents were then barraged by rocks thrown from Mexico and fired across the border, the agency said.
An autopsy report from Mexican authorities indicated Elena Rodriguez was shot at least eight times, with all but one bullet striking him in the back.
Witnesses to the shooting said Elena Rodriguez was walking down the street that runs along the base of a 30-foot rock face. The border fence stands another 20 feet on top of the rock face.
More than two years after the shooting, U.S. District Judge Raner C. Collins ordered Swartz’s name be released in November 2014, saying public access outweighed concerns expressed by Chapman over Swartz’s safety.
At least 10 people have died in Border Patrol-related shootings in Southern Arizona since 2010, and another five have been injured.
Nationally, there have been more than two dozen deaths. None of the agents involved has been convicted or publicly disciplined.
Locally, three agents have been criminally charged in more than 20 years, but in all three cases the agents were cleared.
In 1992, then-agent Michael Elmer was charged with the murder of Dario Miranda Valenzuela, who was shot in the back west of Nogales, Arizona.
The shooting was not reported until 15 hours later. Elmer was acquitted of second-degree murder in a state trial that year and in 1994 was found not guilty in a civil-rights trial.
In 2005, agent Denin Hermosillo was charged with negligent homicide in the shooting death of Julio Cesar Yenez Ramirez, who was suspected of smuggling marijuana. The case was dismissed in January 2006.
In 2007, agent Nicholas Corbett was tried for the death of Javier Dominguez Rivera in the desert between Bisbee and Douglas near the U.S.-Mexico line. After two hung juries, the Cochise County attorney dropped the charges. Corbett said Dominguez Rivera tried to smash his head with a rock, but prosecutors said the young man was kneeling to surrender when killed.
Since then, the county attorney’s offices in Pima and Cochise have declined to prosecute agents in four other cases, saying they could not prove the killings were not justified. The Department of Justice concluded the same.
