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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Retired pinche migra

The board patrol agent was wrong firing into Mexico. As a former agent that was something that was drilled into our heads along with the use of force. But it’s a very difficult situation to defend oneself with rocks being thrown at you as a cover for narcotic smuggling. This entire scenario is a good reason for Mr. President Trump’s wall to be built.
And while we are at it, drug trafficking, contrary to B. Hussein Obama saying that it is not a violent crime, it is certainly a violent crime. There’s violence associated all through the trafficking of narcotics.
And that 9th circuit needs to be impeached and replaced as well, since were on that subject too.
God Bless America.

Anonymous

This article is exactly what I've come to expect from the ACLU. That officer had every right to shoot through the fence. If that kid had rights to throw rocks and endanger the officers, then the officers had rights too. His life is now forfeit because of his behavior. Stop with the race baiting.

Retired BPA Granados

This little turd was chucking rocks. Rocks can injure or kill. Piss on him...he was helping bring drugs into my country by deciding to throw rocks. This article doesn't say who did the autopsy, if it was done in Mexico, odds are the doctors over there pumped rounds into his body. If not them, then the Mexican police did. 9th Circuit is about as useful as a bag of dicks. It's not about being white and wanting to kill without reason. Cry a river on why Mexico is a shithole of a country and why these little shits do what they do. My time in green is over but guarantee you that the reason why Mexicans and OTM's are afraid of the USBP is because we took care of business.

Retired BPA Granados

This little turd was chucking rocks. Rocks can injure or kill. Piss on him...he was helping bring drugs into my country by deciding to throw rocks. This article doesn't say who did the autopsy, if it was done in Mexico, odds are the doctors over there pumped rounds into his body. If not them, then the Mexican police did. 9th Circuit is about as useful as a bag of dicks. It's not about being white and wanting to kill without reason. Cry a river on why Mexico is a shithole of a country and why these little shits do what they do. My time in green is over but guarantee you that the reason why Mexicans and OTM's are afraid of the USBP is because we took care of business.

SurferJ

It’s so heartwarming to read comments that are written by angry and illiterate Republicans. Everything is immediately crystal clear: now I understand how we got to where we are today. In your Neanderthal world, no matter what, there’s always a good reason to shoot an unarmed man or woman, for being black, for being Mexican, for being Jewish, or for being Gay, etc. Hell, I guess a kneeling NFL’r is next on your hit list, right? Just remember this you Republican Fucktards, humanity can’t survive if everyone gets shot by a hot headed cop, CBP officer, security guard, or sociopath. The numbers are NOT in our favor, and your children might just throw a rock and lose 1/2 of their gray matter. But hey, children should know not to throw rocks, so suck it up.

Anonymous

Well, she is the one that decided to try to deal with this in our "Neanderthal world" instead of going through her own court system. A Mexican citizen was shot on Mexican soil so the Mexican Justice system and Mexican laws should apply and the MEXICAN CONSTITUTION would also apply.

SurferJ

It’s so heartwarming to read comments that are written by angry and illiterate Republicans. Everything is immediately crystal clear: now I understand how we got to where we are today. In your Neanderthal world, no matter what, there’s always a good reason to shoot an unarmed man or woman, for being black, for being Mexican, for being Jewish, or for being Gay, etc. Hell, I guess a kneeling NFL’r is next on your hit list, right? Just remember this you Republican Fucktards, humanity can’t survive if everyone gets shot by a hot headed cop, CBP officer, security guard, or sociopath. The numbers are NOT in our favor, and your children might just throw a rock and lose 1/2 of their gray matter. But hey, children should know not to throw rocks, so suck it up.

SurferJ

It’s so heartwarming to read comments that are written by angry and illiterate Republicans. Everything is immediately crystal clear: now I understand how we got to where we are today. In your Neanderthal world, no matter what, there’s always a good reason to shoot an unarmed man or woman, for being black, for being Mexican, for being Jewish, or for being Gay, etc. Hell, I guess a kneeling NFL’r is next on your hit list, right? Just remember this you Republican Fucktards, humanity can’t survive if everyone gets shot by a hot headed cop, CBP officer, security guard, or sociopath. The numbers are NOT in our favor, and your children might just throw a rock and lose 1/2 of their gray matter. But hey, children should know not to throw rocks, so suck it up.

Anonymous

No, our Constitution doesn't apply in other countries. Other countries have their own laws and governing documents. If we apply our Constitution on their soil we are essentially pushing their laws and government out of the way and saying that ours will be used in their country instead.

Anonymous

I am amazed reading these comments. To me this isn't about Republican or Democrat. It isn't about defending yourself. You can attribute whatever emotions you want to either side, but you don't know what they were thinking or feeling. The end result is that a 16 year old boy is dead, and shot by someone representing the United States. Whether our constitution and rights apply to him they certainly apply to the border patrol agent who shot him. Also multiple shots to the back... Don't tell me that you know he is some evil kid who deserves it. That is just ridiculous.

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