Prosecutors in the second-degree murder trial of a Border Patrol agent passed a small chunk of concrete found at the scene to the jurors — they wanted them to get a feel for it.
Earlier, a defense attorney had picked up a rock, roughly the size of a baseball, inside an evidence bag, and asked a witness, another Border Patrol agent, to hold it and tell the jury how much it weighed. The attorneys also left several rocks of different sizes displayed on the defense table.
The first days of the federal trial of Border Patrol agent Lonnie Swartz have focused in large part on rocks being thrown over the border fence and the threat they posed to agents and police responding the night of Oct. 10, 2012, in Nogales.
Swartz is accused of killing Jose Antonio Elena Rodriguez, a 16-year-old. Prosecutors and the defense say the teen was part of a group throwing rocks at agents from the Mexican side of the border that night so two alleged drug smugglers could jump the fence back into Mexico.
Elena Rodriguez was found on the sidewalk across the street from the border fence with 10 gunshot wounds to his back and head.
Rock throwers, and the force agents use to respond to them, are a continual controversy on the border.
“Last resort” or routine self-defense?
The first image the jury saw when Swartz’s trial started Wednesday in Tucson’s U.S. District Court were two 6-foot pictures of what the border fence looks like where the incident happened.
From the Mexican side, there is a cliff about 14 feet tall with the bollard-style fence extending another 22 feet. To clear the fence, jurors were told, a person would have had to throw a rock at least 36 feet into the air, which is higher than a three-story building. Or, they would have to get the rocks through the 4-inch gaps between the bollards.
The other picture showed the view of the border fence looking into Mexico, about where Swartz would have been that night.
“Use of force is justified when a person reasonably believes that it is necessary for the defense of oneself or others,” said Assistant U.S. Attorney Mary Sue Feldmeier. “In other words, a last resort before we take a human life.”
Prosecutors claim this shooting became unjustified the moment Swartz left cover and approached the fence.
“Have you ever been trained that rocks equals shooting?” Feldmeier asked an agent. “No ma’am,” he responded.
But from the day agents start working for the Border Patrol, they are taught that rocks can be deadly, countered Sean Chapman, one of the attorneys representing Swartz. They are shown pictures of agents who have been injured by rocks and warned of the potential danger.
“Despite suggestions of prosecutors,” he told the jury, as he held a rock about the size of his fist, “rocks are dangerous. If a rock this size hits an agent’s face, what do you think is going to happen? Kill him? Fracture his skull or take his eye out? This is not a game. This is serious, this is dangerous and this is what happened that night; it was a very real risk.”
Chapman also showed pictures of Border Patrol vehicles with windows covered with wire or mesh to protect them from rock throwing, especially when driving along the border fence.
“The Border Patrol does not require agents to take cover, or to stay away from the fence, to run away … or to be seriously injured by a rock before responding with deadly force,” Chapman said, and he asked the agents who were at the scene that night to corroborate his statement. The agents who testified Thursday said they hadn’t been hurt by a rock, nor had they had to shoot someone throwing rocks at them during their time in the Border Patrol.
Normally, they would seek cover or increase the distance between the rock throwers and themselves to avoid being hit — just as they did the night Swartz walked to the fence and shot through it.
Nevertheless, it’s a scary thing to be pelted by rocks, they said, adding they had feared for their lives when having rocks thrown at them.
That night, Shandon Wynecoop — who was working with Swartz at the nearby port of entry when they heard about the smugglers trying to flee back to Mexico — said he was thinking about his wife and children. “I didn’t want to end in the hospital,” he said. “I had heard of cases like that.”
While Wynecoop drew his weapon initially because one of the alleged smugglers climbing the fence had a knife in his pocket, he said he holstered it when a Nogales police officer took out his dog. He stepped back and sought cover.
Most rock attacks don’t result in gunfire
The Border Patrol, its union and Chapman argue that the general public underestimates the risks agents face, especially of rock throwing.
The number of reported assaults against officers and agents with Customs and Border Protection, the Border Patrol’s parent agency, climbed from 555 in fiscal 2012 to 847 in 2017 — although they had started to decline before rising again in 2016.
In 2012, there were 185 rock attacks against Border Patrol agents, to which agents responded with gunfire 22 times and used a less-lethal weapon 42 times. The rest of the time they didn’t respond with force.
The prior year, agents were attacked with rocks 339 times and responded with gunfire 33 times and 118 times with less-lethal force, according to a Homeland Security Office of Inspector General report.
In 2014, Mike Fisher, then chief of the Border Patrol, said rock throwers had pelted agents 1,713 times since 2010, causing agents to fire their weapons 43 times, killing 10 people.
A November 2017 Cato Institute report found that the chance of a Border Patrol agent dying in the line of duty from 2003 through 2017 was about 1 in 7,968 per year.
Over the past 15 years, Alex Nowrasteh, the researcher, found that 33 agents died on the job. More than half the deaths were due to driving accidents, others to health-related conditions or accidental drownings. Six were homicides, including the death of Arizona agent Nicholas Ivie, who was killed by friendly fire. Arizona agent Brian Terry was shot dead by suspected marijuana bandits.
Criticisms and agency responses
The Border Patrol has come under increasing scrutiny for its use-of-force incidents, especially in response to rock throwing, and what some deemed as a lack of accountability and transparency.
A 2013 report from the Police Executive Research Forum found agents firing in frustration at rock throwers from across the border and in some cases stepping in front of moving vehicles.
In some cases, the report said, agents put themselves in danger when they could have moved out of range of rock throwers. The group reviewed the internal files of 67 deadly-force cases.
Another report from a CBP advisory panel said the agency’s use-of-force policies should emphasize agents’ primary responsibility to preserve life and recommended a focus on de-escalation techniques and quicker release of information to the media and public.
The Police Executive Research Forum recommended barring agents from shooting at vehicles unless its occupants were trying to kill them, and to bar them from shooting people who throw things that can’t cause physical injury.
But the agency rejected those recommendations, saying “it could create a more dangerous environment,” a point echoed by Chapman during the trial.
In 2014, Fisher released a memo in which, while acknowledging the dangerous situations agents faced that required them to make split-second decisions in difficult circumstances, he clarified existing use-of-force guidelines:
“Agents should continue, whenever possible, to avoid placing themselves in positions where they have no alternative to using deadly force. Agents shall not discharge firearms in response to thrown or hurled projectiles unless the agent has a reasonable belief, based on the totality of the circumstances, to include the size and nature of the projectiles, that the subject of such force poses an imminent danger of death or serious injury. Agents should obtain a tactical advantage in these situations, such as seeking cover or distancing themselves from the immediate area of danger.”
Since 2014, the agency has announced new training and guidelines aimed at curbing abuses and changes made in how use-of-force incidents are investigated. It also released the agency’s use-of-force policy handbook for public viewing.
The CBP National Use of Force Review Board meets regularly to review significant use-of-force incident investigations and make recommendations.
Also, basic training agents receive includes four more days of scenario-based use-of-force training, and the agency developed reality-based shoot and no-shoot training scenarios involving rock throwing. CBP has said it will continue to increase “multiple enforcement and de-escalation options for agents and officers and provide additional targeted training.”
The use-of-force incidents of CBP officers and agents involving firearms is down from 55 in fiscal 2012 to 17 in fiscal 2017. During this same period, the use of less-lethal force increased from 873 to 979.
According to data posted online, “It seems they are using de-escalation techniques, which is a good thing,” said Vicki Gaubeca, interim director of the Southern Border Communities Coalition and previously with the American Civil Liberties Union.
“However, I think we need more information about the data they post online,” she said. “There’s no clear definition of what those assaults are, what that looks like. When they say there’s been an increase in the number of assaults, I don’t know if it’s because they broadened the definition or whether it’s actually an increase of assaults,” she said.
“Their use of force is still shrouded in a lot of mystery,” said Billy Peard, a Tucson-based ACLU attorney.
“The numbers of accusations have gone up, number of indictments have gone up, but I’m not convinced what’s actually happening on ground, that the behavior of people on the ground toward Border Patrol agents have become more violent.”