Retrial to Begin For US Border Agent Who Shot Teen Across Border

Nogales, Mexico – The street corner where 16-year-old Jose Antonio Elena Rodriguez was shot dead by a US Border Patrol agent six years ago has turned into a shrine.

Every 10th of the month, one or more family members visit the corner to replace the dried-out flowers with fresh ones and light a candle at the cross that marks the spot. It’s on a street called Calle Internacional, next to a dilapidated house where the paint is crumbling off the walls.

On the other side of the street is a small cliff some eight metres high, out of which the metal border fence towers over the line that divides Mexico and the United States.

The homes of Nogales, Arizona can be seen through the poles, clearly better maintained than on the Mexican side of the border.

Taide Elena, Rodriguez’s grandmother, points up at the fence.

“Look how high up ground on that side of the border is. Up there is where the Border Patrol was when he shot my grandson, who was standing down here.”

Rodriguez was hit at least 10 times, mostly from behind. According to Border Patrol, the shooting by agent Lonnie Swartz was self-defence. People were allegedly throwing rocks over the border, which sometimes happens to distract Border Patrol guards from drug smugglers climbing over the fence.

“Jose Antonio was on his way home, which is a few blocks from here. Some other people were throwing rocks and he just happened to walk by,” Elena tells Al Jazeera.

Taide Elena, 68, stands next to the cross where her grandson was killed. [Eline van Nes/Al Jazeera]
The grainy videos that exist show Swartz arriving at the scene, stepping out of his car and starting to shoot quickly afterwards.

According to the testimony of other Border Patrol agents present, Swartz did not consult them before shooting his weapon. Swartz shot 12 bullets, reloaded and then shot some more. Court records show there are several reports describing between 14 and 30 shots fired.

Rodriguez was unarmed. He was hit at least twice when he was lying on the ground, according to prosecutors, who said Rodriguez was still alive at that point.

Although Elena has told the story many times, she starts crying as she describes the moment she learned from the prosecutors that Rodriguez crawled on the ground with 10 bullet holes in his body.

“He wanted to go around the corner,” she says with her eyes filling up with tears and her voice breaking. “He wanted to go home.”

In April, Swartz was acquitted in US federal court of second-degree murder. But the jury got stuck on charges of voluntary and involuntary manslaughter, for which Swartz will be retried in a case beginning on Tuesday.

Although the case of Rodriguez doesn’t stand by itself – there are at least six other cases known of Mexicans who have been killed by shots fired over the border – experts explain that this is a particularly important case, for the fact that there is a court case at all.

According to US law, parents who are foreign nationals are not allowed to sue through the American court system when the victim is on foreign soil when killed, as was judged by the Supreme Court in the case of the parents of Sergio Hernandez, a Mexican teen who was killed by Border Patrol in 2010.

Justices in the case questioned how allowing parents of victims in Mexico to sue would be any different from allowing the family of a victim of a US drone strike to file a complaint.

The Mexican government can’t do anything either. In the case of Hernandez, the Mexican government filed charges, but the US government refuses to extradite the Border Patrol agent to Mexico, rendering it effectively powerless.

In the case of Rodriguez, however, US prosecutors have brought charges against the Border Patrol agent.

Additionally, a US federal appeals court has also allowed for Rodriguez’s mother to sue Swartz in a civil case. In August, the court ruled that Rodriguez’s citizenship is irrelevant in this case, stating that it would be “bizarre” if border agent Swartz would be granted immunity only because the boy he shot was not a US citizen.

If Swartz is found guilty of manslaughter or if Rodriguez’s mother wins the civil suit, an important precedent would be set for other cases of cross-border violence by US agents.

Lee Gelernt, a lawyer with the American Civil Liberties Union (ACLU) who represents Rodriguez’s mother, told Al Jazeera that “this case has extraordinary significance, not only because of the grave injustice but because it raises the critically important question of when the United States Constitution applies across the border.”

Standing at the cross, Elena stresses this importance and explains why she feels the need to fight so hard for this case.

“Apparently now Border Patrol is free to just shoot whomever they like over the border,” she says.

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