Associated Press
March 27, 2017
TUCSON, Ariz. — The second-degree murder case against a Border Patrol agent accused of killing a Mexican teen in a cross-border shooting will move forward after a federal judge denied a motion to dismiss the charge.
U.S. District Judge Raner Collins issued the ruling last week denying a claim by an attorney for Agent Lonnie Swartz that the federal government didn’t have jurisdiction over the case.
Collins also agreed to suppress answers Swartz gave to a superior the day he fatally shot 16-year-old Jose Antonio Elena Rodriguez, saying Swartz was led to believe the answers couldn’t be used to incriminate him. The questions are standard under the agency’s use of force policy.
Swartz is accused of firing through the border fence from Nogales, Arizona, into Nogales in the Mexican state of Sonora, and striking Elena Rodriguez about 10 times. He said Elena Rodriguez threw rocks at him, endangering his life.
The boy’s family has denied that, saying he was walking home after a game of basketball with friends.
The criminal case against Swartz has stalled several times and is currently scheduled to take place in June.
His attorney, Sean Chapman, has also asked the court to bar video evidence in the shooting, saying the agency did not hold on to original files of the footage and that the copies are “highly compressed and deeply flawed.”
That motion is pending.
Swartz is on leave from the agency while the trial unfolds. He is also facing a civil rights lawsuit filed by the ACLU on behalf of Elena Rodriguez’s mother.
Swartz’s attorney and the government are challenging that suit, arguing that Elena Rodriguez was not constitutionally protected because he was a Mexican on foreign soil without any ties to the U.S.
The ACLU has said Elena Rodriguez did have ties to the U.S. because his grandmother, who helped care for him, was a legal permanent resident and is now U.S. citizen.
The 9th U.S. Circuit Court of Appeals heard arguments in the case in October but said it would not issue a ruling until the U.S. Supreme Court issues a decision in a similar case involving another cross-border shooting.
In that 2010 case, a Border Patrol agent in El Paso, Texas, fatally shot a teenager who was across the border in Ciudad Juarez, Mexico.
Authorities have said agent Jesus Mesa Jr. was trying to arrest immigrants who had illegally crossed into the country when rock-throwers attacked him. Mesa fired across the Rio Grande river, striking 15-year-old Sergio Adrian Hernandez Guereca twice.
A federal appeals court said the boy’s family didn’t have the right to sue in U.S., which the Supreme Court is now considering.
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