Last Friday, October 9, 2015, for the first time a Border Patrol Agent was arraigned on murder charges for a cross-border rock-throwing incident. Lonnie Ray Swartz was indicted by a grand jury on September 23, 2015 on second-degree murder charges. The indictment read “Lonnie Ray Swartz, did with malice aforethought, and while armed with a P2000 semiautomatic pistol,” killed Jose Antonio Elena Rodriguez. Swartz fired ten rounds through the border fence in Nogales on October 10, 2012, killing Elena.
Jose Elena was 16 years-old when he was killed. The autopsy report showed that Elena was hit eight times with all of the bullets, except for one hitting him in the back. Swartz has argued that he shot in self-defense. Swartz claims that Elena was part of a group of children that were throwing rocks at him.
Swartz’ ten rounds were part of a fusillade of “between 14 to 30” rounds that were shot by border patrol agents across the border into Mexico, in response to an alleged rock throwing from the Mexican side.
Prior to Swartz’ indictment and last week’s arraignment, the US federal government had argued that those killed by agents on the Mexicans side of the border did not have constitutional guarantees and thus Border Patrol Agents could not be sued or prosecuted for the deaths. As a matter of fact, Swartz claimed immunity from litigation “because the U.S. Constitution does not apply in Mexico.”
However, in late June of 2014, the 5th U.S Court of Appeals ruled that even though the victims are outside of the United States, they still have constitutional guarantees. The ruling was in response to a civil lawsuit filed by the family of Sergio Adrian Hernandez Guereca, who was killed by Jesus Mesa, a Border Patrol Agent working in El Paso at the time of that shooting.
The indictment and arraignment of Lonnie Swartz is the first time that a border patrol agent has been indicted and arraigned for shooting across the border. Although the process is expected to take a long time, the fact is that the indictment of Swartz shows that US constitutional protections do not end at the border.
Other than Johnny Sutton’s prosecution of former Border Patrol Agents, Compean and Ramos on a cover-up after a shooting, Border Patrol Agents are rarely prosecuted for crimes outside of corruption charges. This has led to the numerous deaths of Mexican nationals who have been killed by agents shooting into Mexico. The sentences of Compean and Ramos were commuted by President George Bush in 2009.
There is a long way to go but it is a good start that Lonnie Swartz will be prosecuted for shooting across the international border.