Border Patrol agent is indicted in 2012 fatal shooting

In this July 29, 2014, photo, Araceli Rodriguez handles a rosary during a news conference in Nogales, Mexico, that belonged to her son Jose Antonio Elena Rodriguez, pictured behind her, who was shot and killed by a U.S. Border Patrol agent in October 2012. Photo:Kelly Presnell/Arizona Daily Star via AP

TUCSON, Ariz. – A Border Patrol agent charged with second-degree murder in the death of a Mexican teen is one of only three agents to face murder charges in more than 20 years.

Lonnie Swartz was indicted Wednesday on one count of second-degree murder by a federal grand jury that reviewed the death of 16-year-old Jose Antonio Elena Rodriguez, who was hit about 10 times by cross-border gunfire.

“It’s very rare for a Border Patrol agent to be charged criminally when the abuse or killing is on U.S. soil, said Lee Gelernt, deputy director of the Immigrants’ Rights Project for the American Civil Liberties Union.

In the case of a cross-border shooting with the victim on Mexican soil, the ACLU group did not know of any previous scenario in which a Border Patrol agent was indicted, Gelernt said.

Only two other agents have been charged with murder in killings of immigrants.

Nicholas Corbett was accused in the January 2007 death of Francisco Javier Dominguez Rivera. The case was dismissed after two trials resulted in hung juries.

Michael Elmer was charged with second-degree murder but acquitted after the 1992 shooting of Dario Miranda Valenzuela. Both cases took place in Arizona.

The Border Patrol said Elena Rodriguez was among a group of rock throwers endangering agents’ lives. His family insists the boy was walking home from a basketball game with friends and was not armed or hurling rocks.

Luis Parra, the attorney for the boy’s mother, said the family was grateful to the Department of Justice “for this first step in the pursuit of justice,” and relatives “remain steadfast in their resolve to seek full transparency” from the Border Patrol.

Swartz’s attorney, Sean Chapman, did not respond to calls seeking comment. He told The Arizona Daily Star he expects his client to plead not guilty at an Oct. 9 arraignment. The U.S. Attorney’s Office declined to comment on the case.

The Border Patrol Union Thursday criticized the indictment.

“Sadly, our agents and all law enforcement officers operate in a world of political agendas and armchair quarterbacking. But our jobs are dangerous, and the decisions we make every day determine if we will return home safely to our families. We ask the public to withhold judgment about Agent Swartz while the legal process unfolds.”

Swartz also faces a federal civil rights lawsuit in the death of the teen, who was in Nogales, Sonora, on Oct. 10, 2012, when Swartz fired from Nogales, Ariz.

The Border Patrol has used deadly force more than 40 times in rock-throwing incidents, resulting in 10 deaths.

The Mexican government said Thursday that it “welcomed” the decision to indict the agent.

The decision “represents an unprecedented advance in transparency and accountability in law enforcement and immigration control,” the Foreign Relations Department said in a statement. The ruling “helps build community confidence in border control agents and the justice system” of the United States.

The case happened amid criticism that the Border Patrol uses force indiscriminately, a charge the agency has denied. Border Patrol agents are generally allowed to use lethal force against rock throwers because rocks can be deadly. Rock throwers have attacked agents more than 1,700 times since 2010, according to the agency.

Chapman tried to get the family’s lawsuit thrown out on the grounds that the Constitution does not apply to the boy, a Mexican citizen, because he was in Mexico at the time of the shooting.

A federal judge in July ruled that the lawsuit can go forward.

In a similar case in Texas, a federal appeals court ruled that a teen killed in Mexico by a border agent in El Paso, Texas, was not protected by the Constitution.

Border Patrol agent Jesus Mesa Jr. shot 15-year-old Sergio Adrian Hernandez Guereca in 2010 near a bridge between El Paso and Ciudad Juarez, Chihuahua.

Authorities said Mesa was trying to arrest immigrants who had illegally crossed into the country when rock throwers attacked him. Mesa fired his weapon across the Rio Grande, striking the teen twice.

A three-judge panel of the 5th U.S. Circuit Court of Appeals originally said Hernandez Guereca’s family could sue Mesa. But the full court overturned that ruling in April.