Justice for José Antonio, a 16-Year-Old Boy Killed By U.S. Border Patrol

If a U.S. Border Patrol agent uses excessive and unnecessary force to kill a noncitizen in a foreign country, are there consequences under the U.S. Constitution? The answer might seem to be obviously “yes” to most people. Unfortunately, our own government believes the answer is “no.”

On October 10, 2012, José Antonio Elena Rodriguez, a 16-year old boy, was shot and killed on Calle Internacional, a street in his hometown of Nogales, Sonora, Mexico by a U.S. Border Patrol Agent. He was four blocks away from his home.

Calle Internacional runs parallel to a border fence, which separates the United States from Mexico, and is between 20-25 feet in height. The steel fence runs along the top of a 25-foot cliff. That evening, according to Customs and Border Protection (CBP), agents were in pursuit of two suspected smugglers who were attempting to scale the fence back into Mexico from the United States when rocks were thrown from the Mexican side of the border.

In response, Agent Lonnie Swartz aimed his gun through the fence and opened fire anywhere from 14 to 30 times, according to reports.

An autopsy revealed that José Antonio was shot approximately 10 times, and virtually all of the bullets entered his body from behind. He was an unarmed adolescent who liked “cloudy days and chocolate cookies,” as remembered by his mother, Araceli Rodriguez.

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Today marks five years since the shooting, and there’s still been no justice for the Rodriguez family. José Antonio should be 21 years old. Instead, his mother and siblings regularly walk by his shrine on Calle Internacional, where bullet holes are still pockmarked into the wall. The Rodriguez family, still reeling with loss, remains hopeful that the American judicial system will deliver justice for José Antonio.

In 2014, the American Civil Liberties Union filed a federal lawsuit on behalf of Araceli to vindicate her son’s constitutional rights. At a basic human level, our case challenges the notion that a U.S. border agent can stick a gun through a hole in a fence and shoot at Mexican kids, 20 feet away, with no constitutional consequences. And legally it raises significant questions about whether the U.S. Constitution can be applied extraterritorially. CBP, on behalf of Agent Swartz, asked for the case to be dismissed, arguing that José Antonio was not deprived of constitutional rights because as a Mexican national killed in Mexico, he doesn’t have any. In July 2015, a U.S. District Court of Arizona denied the request to dismiss the case, finding that Jose Antonio “was entitled to protection pursuant to the Fourth Amendment.”

Ultimately, Agent Swartz is an American citizen who is subject to U.S. laws. He opened fire, while in uniform, on U.S. soil, using unnecessary and excessive force in violation of the Fourth and Fifth Amendments despite the fact that “for over thirty years, law enforcement officers have been well-aware that it is unlawful … to use deadly force against an unarmed suspect,” as District Court Judge Collins noted.

“At its heart, this is a case alleging excessive deadly force by a U.S. Border Patrol agent standing on American soil brought before a United States Federal District Court tasked with upholding the United States Constitution,” the judge concluded. CBP has since appealed the ruling, and the case is now before the Ninth Circuit Court of Appeals. If the Ninth Circuit were to rule in favor of the Rodriguez family, it would set a critical precedent that Border Patrol agents cannot kill without constitutional repercussions just because the victim was a national in another country.

In addition in 2015, a federal grand jury indicted Agent Swartz for second-degree murder, the first time in U.S. history that a Border Patrol agent was charged with murder in a cross-border shooting. The trial, which has been pushed back on more than one occasion, is currently set for March.

José Antonio’s death was a tragic event, but not an isolated one. Since 2010, at least 50 people have died as the result of an encounter with U.S. border agents. A 2014 American Immigration Council report examined 809 complaints of alleged abuse lodged against Border Patrol agents and concluded that CBP officials "rarely take action against the alleged perpetrators of abuse." On the occasions when CBP did formally respond to a complaint, 97 percent of the time the response was "No Action Taken."

On January 25, President Trump signed an executive order on immigration enforcement which called for the hiring of 5,000 more Border Patrol agents and 10,000 new ICE officers. CBP is already the nation’s largest federal law enforcement agency and only stands to gain more authority given President Trump’s significant overhaul of immigration enforcement and deportation priorities.

Whether or not we build a wall, there is no Constitution-free zone where border patrol agents can kill civilians. The Border Patrol’s age of impunity must end.

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Da Gunny

Did you even read the artcle? They were trying to grab a couple of coyotes trying to get back over the wall. It is kind of difficult to catch someone while you sit in a car, dont you think. Also i firmly believe that even you would think your life was in danger if you were trying to do your job and people were pelting you with some good size rocks

Anonymous

@Da Gunny - Ok, couple of things. 1 - feel free to throw a rock, but first stand behind a 25ft fence and see how successful you are going to be. Can honestly say that most people wouldnt fear for their lives(even unarmed people) 2 - ask any law enforcement officer what they do when they fire their gun, I can guarantee it is not to wound an offender. Centre body mass is the target so they weren't trying to "aprehend" anyone 3 - the kid was shot in the back for the majority of the 10 shots that he took - HE WAS RUNNING AWAY, how is that self protection on the part of the officer? 4 - you dont have to be a liberal to weigh up the fact that a human life (yes - even a criminal one) is worth more than a few bags of contraband....you just have to be a human being.

Anonymous

Porque no mencionan que la madre y el padre abandonaron al menor, la madre ya habia hecho vida con ptro señor y el padre tambien , y no veian por el pequeño, no le daban de comer ni lo procuraban, el niño estaba bandonado en la calle años atras, la familia busca dinero, nada mas. que investiguen un poco y se daran cuenta que los padres son unos estafadores, no hay dolor el pequeño a ellos no les importaba

Dr. Joseph Goebbels

Gracias por tu comentario, es la verdad.

Anonymous

A veces la verdad duele, pero en eso no hay plata. Los mientende todo, igual que el ACLU.

Anonymous

give him life...

Anonymous

He should have not been throwing rocks........ rocks kill ! Liberals are going to want to ban rocks next !

Anonymous

That kid was probably working for the cartels as a scout and was throwing rocks to keep the Agents from capturing the drugs. And any object used as a weapon is considered a weapon from a pencil, fork or rock they can cause serious bodily injury or death. Let me throw a rock at you and test the theory.

Anonymous

Ok, lets put some context to this. How accurate do you think you are going to be while standing behind a twenty five foot fence? Do you honestly think you can clear the fence, judge the distance and hit a moving target? The size of the rock vs the effort to throw it over means that these "rocks" were probably pretty small.... like stones for example. Are they really life threatening?

Anonymous

He was 16 - not 6. He knew better. He chose to do something incredibly stupid towards people with guns.

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