I was a U.S. Border Patrol agent in Arizona from 1996 until I retired in June of 2017. During my 21 years patrolling our international boundary in Arizona, I was never assaulted by a migrant. In fact, I was never assaulted. For transparency’s sake, I should disclose that on many occasions, hooligans in Mexico (and sometimes in the U.S.) would hurl rocks at me and my fellow agents. Technically speaking, being at the receiving end of these types of projectiles is considered, under the statute, to be an assault. However, I never felt that I was genuinely threatened when the rocks started flying in my direction; my colleagues and I simply avoided the rocks as they followed their slow, ponderous arc across the border.
In fact, I once witnessed a fellow Border Patrol agent catch a rock that was thrown from across the international boundary and throw it back into Mexico! Although this was an exceptional occurrence, it shows that at least some “rockings” are indeed benign acts of frustration and not true threats. Not once did the thought of using deadly force enter my mind. Moreover, none of my colleagues ever suggested using lethal force in response to rockings; we just used common sense.
When José Antonio Elena Rodríguez was shot and killed by Border Patrol agent Lonnie Swartz in Nogales, Arizona, during the fall of 2012, my default reaction to his use of deadly force was to give the benefit of the doubt to Agent Swartz. When on-duty U.S. law enforcement personnel use lethal force, the vast majority of these incidents fall within departmental guidelines and do not violate the spirit, if not the letter, of the Fourth Amendment. However, as a firearms instructor, and after reading media reports describing the logistics at the shooting scene, I went to the area to see for myself. What I saw disturbed me.
I crossed into Mexico and headed west from the Nogales Port of Entry along Calle Internacional to the spot where José Antonio was killed. As I stared up at the iron fence atop the earthen embankment, I imagined throwing a baseball into the U.S. from where I was standing. My arm would have to contend with a linear distance of about 90 feet and a 30-foot rise to clear the fence. While I could throw a projectile into the U.S. from where I stood, I wondered how much of a threat it would pose after such a long journey and, more importantly, what type of reasonable response would be appropriate to this perceived threat.
After several minutes, I made my way back through the port and went to the spot where Agent Swartz fired his weapon. From this position, I tried to justify the use of deadly force, but try as I might, I could not. The actions of José Antonio (if he was, as claimed, throwing rocks) did not warrant the use of deadly force. How, then, could a jury acquit Swartz of manslaughter during his most recent trial?
During Swartz’s first trial in April of 2018, his attorney, Sean Chapman, was very adept at crafting an image of the work conditions of a Border Patrol agent. His language described the U.S.-Mexico border as a violent and dangerous place for law enforcement. A place where Border Patrol agents risk their lives and are subjected to violent acts of aggression on a constant basis. Mr. Chapman even described Agent Swartz as being “scared to death” that he or his fellow agents would be harmed by rocks that night. Scared to death? That phrase is appropriate for a U.S. Marine stepping onto the beach at Guadalcanal during WWII, but not for the “attack” that occurred that night. As a veteran, I’m sure Agent Swartz will agree.
Of course, Mr. Chapman had plenty of help in creating this particular “scary” vision of the border. For example, the preamble to Customs and Border Protection’s mission statement reads: “To safeguard America’s borders thereby protecting the public from dangerous people. …” In September, at a groundbreaking ceremony for a new section of border fence just west of El Paso, Chief Patrol Agent Aaron Hull of the El Paso Border Patrol Sector stated that, “U.S. Border Patrol agents are the most frequently assaulted and most frequently injured federal law enforcement officers.”
Former Border Patrol Chief Michael Fisher and union officials in the National Border Patrol Council have all made similar pronouncements. On its website, the council makes the outlandish claim that “Border Patrol agents are assaulted more than other agents or officers within the law enforcement profession.” President Trump, who as a candidate was endorsed by the union, has tweeted comments that characterize the U.S.-Mexico border as a “very dangerous” place for law enforcement. If one were to rely solely on these declarations, one might conclude the border is rife with violence, chaos, and presents a constant threat to the lives and well-being of law enforcement personnel.
These characterizations of our southern border explicitly define it as dangerous — to the homeland, its citizens and law enforcers. If this is true, then there should be overwhelming evidence to support this contention. For instance, given the amount of apprehensions that Border Patrol agents make each year, combined with the total number of agents, assaults against agents should be the highest among all law enforcement agencies as well as injuries and on-duty mortality rates. Also, the rate at which offenders are convicted for assaulting a federal officer should be the highest as well.
However, based on my experience as an agent and after poring over law enforcement data and statistics, I found the opposite to be true. My research, conducted as a graduate student at the University of Arizona, found that Border Patrol agents enjoy one of the safest law enforcement jobs in America.
Sure, on rare occasions there have been assaults committed against agents in which they have sustained serious injuries or have been feloniously killed but, adhering to the methodology set forth by the FBI’s Uniform Crime Reporting Program, or UCR, the data clearly suggest that the rhetoric from BP management, the union, and President Trump does not match reality. Statistics and data from local, state and federal agencies all refute the assertion that immigration enforcement is one of the most dangerous jobs.
Although they are assaulted at a much lower rate than Border Patrol agents, FBI special agents are feloniously killed while on-duty at a higher rate. U.S. marshals suffer a much higher assault rate and felonious on-duty mortality rate than BP agents. Additionally, over the past four years, the roughly 3,200 law enforcement officers from the U.S. Department of the Interior, or DOI, have been assaulted over 2,500 times. During the same period, a little more than 1,500 assaults were committed against about 20,000 Border Patrol agents.
Perhaps the most important metric is a comparison of the number of convictions for assault on a federal officer. Between 2014 and 2017, the average number of convictions for assaulting an officer in the Department of the Interior was about 260. Curiously, the Border Patrol did not report outcomes for this category during this four-year period. An Office of Inspector General report from September 2018, however, shows that between FY 2010 to FY 2017, there were a total of 66 offenders convicted for assaulting Border Patrol agents, resulting in an average of about eight convictions per year. This statistic alone seriously undermines the claim that patrolling the border is a dangerous endeavor.
It is here that someone may point out that comparing the Border Patrol with other law enforcement jobs is like comparing “apples with oranges.” Many people tend to conflate the role of Border Patrol agents with local agencies such as police officers and sheriff’s deputies. However, they each occupy very different niches in law enforcement. Even so, police and sheriff’s deputies suffer more total assaults and injuries when doing their jobs than BP agents.
Although there is no law enforcement agency that is exactly like the Border Patrol, we can look to two components within the DOI for an “apples to apples” comparison. Like BP agents, the National Park Service and Bureau of Indian Affairs law enforcement personnel often work alone in remote areas where backup is delayed or non-existent. As previously mentioned, enforcement data reveal that these federal officers endure more direct, personal attacks than Border Patrol agents. The fact that so many offenders are convicted for assaulting DOI officers is a testament to the genuine threats that these officers face.
A noteworthy difference between the DOI agencies and the Border Patrol, something that the union is quick to mention, is that it is not uncommon for an individual agent to apprehend 20 or more people. Here, the union has argued that if a combative subject is in the group, the agent would be outnumbered and extremely vulnerable to being attacked. But, again, the data do not support this “dangerous” scenario. Even though Border Patrol agents consistently find themselves in potentially threatening circumstances, a real threat fails to materialize and the vast majority make it home without a scratch. Why, then, does the idea of a dangerous border persist?
The belief that patrolling the U.S.-Mexico border is dangerous has evolved over time. Citing the “unique” work conditions above, the Border Patrol has, with some help from the current administration, created and propagated this myth. This myth has a great amount of utility when used to convince the public that Border Patrol agents have a dangerous job. Union leaders and BP management recognize the utility of this powerful narrative, the “Border Threat Narrative,” and use it as a type of foundation to support their ideological endeavor: To make the public believe the border is a dangerous place and that BP agents must confront violence, chaos and illegality on a constant basis.
With this idea firmly in place, the prosecution in the Swartz trial (both times) never stood a chance. Defense lawyer Chapman, using the powerful rhetoric of the Border Threat Narrative, managed to convince the jury that Agent Swartz acted reasonably that night. For their consumption, he crafted a version of the events where Agent Swartz was part of a “military organization” and was “scared to death” of violent drug traffickers who are “trying to harm agents.” In so doing, he produced the idea that the border is a dreadful place where tectonic plates of good and evil collide.
In my opinion, the jury got it wrong. During the first trial, I half-jokingly told a journalist that the prosecution would fare better with 16 seasoned, thoughtful, and honest Border Patrol agents sitting in the jury box. Many agents that I know would likely deem Agent Swartz’s actions as unreasonable. Indeed, when Border Patrol agent Leo Cruz-Mendez, the BP supervisor who responded to the shooting, took the stand, his words expressed doubt as to Swartz’s actions that night.
When Agent Swartz handed him an empty pistol magazine after the shooting, Cruz-Mendez stated that he was “surprised” that the magazine was empty. Noting his facial expressions, I got the sense that Cruz-Mendez was shocked and disappointed that Agent Swartz responded with deadly force. Several minutes later, he stated that it was “common sense” to retreat from rocking incidents and that he himself had retreated from three or four rockings during his time in Nogales.
The true danger lies not in the job but in the idea of a dangerous and violent border. It is this idea that moves public discourse about the U.S.-Mexico border and the alleged threats that it poses. The Border Threat Narrative is a myth that relies on propaganda, skewed data and hyperbole, which makes bad decisions inevitable.