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Swartz should have taken cover; shooting unarmed person in back 'unjustified,' testifies BP trainer

Near the end of his testimony Monday, a retired Border Patrol agent and firearms instructor said that firing on an unarmed person in the back was "an unjustified shooting," and that Agent Lonnie Swartz should have sought cover rather than firing three salvos of gunfire into Mexico, hitting 16-year-old Jose Antonio Elena Rodriguez 10 times in the back and head and killing him.

Swartz is on trial for second-degree murder for killing Rodriguez during a cross-border shooting in Nogales on Oct. 10, 2012.

Last week, an expert in 3D models showed a simulation that Rodriguez may have fled more than 16 feet, tripping over a curb and landing facedown, and that Swartz continued to shoot at the boy, emptying one magazine, reloading, and firing three rounds from another.

Swartz fired 16 rounds in 34 seconds, hitting the boy in the head and back. Rodriguez died on a sidewalk on the Mexican side of the border, down an embankment from where Swartz stood on the U.S. side of the border fence. The trial began March 20 in a federal courtroom in Tucson.

Allen Foraker, a 28-year veteran of the Border Patrol, trained Swartz on the use of firearms at the Border Patrol's training center in 2010. He testified Monday that after watching video of the incident that he believes the agent could have taken cover behind a Nogales police vehicle in the middle of the road, or a nearby wall, rather than resorting to deadly force after rocks were thrown up a 14-foot slope topped by the 22-foot-high steel border fence.

Video screened in court last week showed that Rodriguez, along with two other people, hurled rocks toward the fence after a pair of men trying to climb back into Mexico were spotted by U.S. law enforcement. Rodriguez and the others, standing on the street below in Mexico, fled as Swartz fired his handgun.

Jurors were taken to the scene last Thursday evening to see the fence and the spot where Swartz fired his weapon down at Rodriguez, standing below across the border in Mexico, Kleindienst told reporters Monday.

Foraker said on the witness stand Monday that when he taught at the Federal Law Enforcement Training Center in Artesia, N.M., he told agents that they can only use lethal force when they believe it is both "reasonable and necessary." Instructors spend hours training agents how they should react to scenarios in which they can legally fire their weapon and kill someone, he said.

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Necessity was "synonymous" with the last resort, he said. "All other means have failed and deadly force is the only resort left," he testified. 

Agents are taught to "value the integrity and the sanctity of life" and should only use their weapons when other options have exhausted, Foraker said. 

During a demonstration about firing at center-of-mass, a term used to describe aiming for the largest part of a person's body, Wallace Kleindienst, an assistant U.S. Attorney, turned his back and asked the expert to delineate the concept: "Can you shoot center-of-mass now?" 

A flustered Foraker said, "I can see no intent; there is not an opportunity."

Kleindienst added that the hypothetical subject had dropped his weapon and asked if an agent could shoot now.

"He should not have shot — that is an unjustified shooting," the former BP trainer said.

Last August, Sean Chapman — one of the lawyers defending Swartz — successfully challenged part of Foraker's potential testimony, arguing that the former instructor should be precluded from "giving his opinion on the ultimate legal issues in this case." And, U.S. District Judge Raner C. Collins agreed, ruling that Foraker will "not be allowed to state opinions on the ultimate facts before the jury."

Although Chapman has frequently raised objections — most overruled by the judge — he did not challenge Foraker's assessment in court.

Kleindienst asked Foraker to review several pages of U.S. Customs and Border Protection's Use of Force manual, and asked the former instructor to outline when an officer or agent could use force. Foraker said that Swartz could only use force when it was "reasonable and necessary." 

Foraker was one of three witnesses asked to testify by prosecutors as they continued to construct their case against Swartz.

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Foraker and other instructors trained Swartz on how to operate, load and shoot the H&K P2000 semi-automatic pistol, the standard sidearm used by Border Patrol agents through a series of courses that also including the legal theories that defined when an agent could use lethal force. 

"Reasonable" means that from the agent's perspective, there is a reasonable belief that a person poses an "imminent threat" of serious injury or death to himself or other people. The "reasonableness is not to be viewed from the calm vantage point of hindsight," Foraker said. 

However, this does not mean that a situation cannot be judged after the fact, rather that an officer or agent shouldn't be judged "without all of the facts," Foraker said. 

"This is what you instructed the agents?" asked Kleindienst. "Yes," he responded. 

Foraker not only trained Swartz, he signed off on a document that Swartz had been issued a copy of the agency's Use of Force manual. 

There are three elements that must be balanced against each other, said Foraker, noting that an agent must consider that a person has the means or ability, the opportunity, and the intent to harm him or another person. This can include rocks, which may be considered lethal on a case-by-case basis, he said. 

Agents are taught that their goal is only to put a stop to an imminent threat, noting "It’s a reminder to students that they aren’t trying to kill whatever they are shooting at."

An agent isn't trying to "eliminate the person as a human being?" asked Kleindienst. 

"No sir," Foraker said. 

"Just because you've been rocked, can you shoot him?" asked Kleindienst. 

"No," said Foraker, later adding: "A person can only throw a rock so far, it's not like a bullet from a gun." 

Foraker's testimony followed the statements of other agents and officers that night who took cover or moved away from the fence as several rocks sailed overhead. Of the agents and officers at the scene, most had their guns holstered, and only pulled out their weapons after Swartz fired into Mexico. 

Foraker said that agents were trained on how to use concealment and cover in the field, learning to seek cover behind vehicles, small walls, and telephone poles to protect themselves from "getting hurt." 

Cover and concealment "can be intermixed," Foraker said. "If you have cover, you have concealment," he said. 

"It is a sound tactical movement to find cover?" Kleindienst asked. "Yes," said Foraker, adding that agents could have moved up the street to a "clear, open, safe space to the north of the threat." 

Chapman objected to this line of questioning, arguing that Kleindienst was ignoring the "context and circumstances" of the incident. Kleindienst moved on and asked Foraker why agents should seek cover.

"There's a reasons for that — survival," he replied. 

Foraker noted that agents need to respond to circumstances, and may escalate or deescalate their use-of-force in response to the person they're facing. While rocks can be dangerous,  a "baseball-sized" rock constitutes a different threat than a "marble-sized rock," he said.  

Several chunks of concrete were collected at the scene by FBI investigators that night. One rock weighed nearly three pounds, and was nearly six inches long, and the smallest rock weighed only .076 pounds and was just two inches long. 

"Those are different issues, a person cannot throw a marble with enough force to cause grievous injury," said Foraker. 

Later, Kleindienst asked Foraker about the velocity of rocks as they're thrown upwards, leading to a series of objections from Chapman, who repeatedly challenged the "foundation and framing" of Kleindienst's questions.

"What's the velocity of a rock, in your experience?" Kleindienst asked. Foraker tried to explain how rocks, like any thrown object, will decelerate as they head upwards, fighting the pull of gravity. Chapman repeatedly interjected, and twice asked for a sidebar with prosecutors and Judge Collins. 

Foraker said that once a rock reaches the zenith of its arc, it falls at terminal velocity, and "nothing but gravity affects the rock at this point."

"Isn't it true that a shooting is so stressful, so scary that it impact the mind in really powerful ways?" Chapman asked. 

"Yes," Foraker said. Chapman later asked if agents are "supposed to take an assault" if it comes from across the border. 

Foraker paused. "They're not supposed to take an assault at all, location doesn't matter," agents can use force "when a viable alternative does not exist," he said. 

Chapman argued that the incident cannot be "viewed from the calmness of the courtroom in hindsight." 

"The decision to shoot someone happens in the blink of an eye," he said. "You have to factor in — not in a courtroom protected by security guards, with a judge, with prosecutors, with defense attorneys — but in the middle of the night, alone, where the wrong decision could get someone seriously injured or killed and you make a decision that that," Chapman asked, snapping his finger. 

"Do you shoot to wound?" Chapman asked.

"We tell them not to," responded Foraker. "You don't shoot to wing the guy?" Chapman asked.

"No, agents can't," the trainer said.

Foraker was followed by Juan Pablo Espinoza Armenta, a member of the Municipal Police in Nogales, Sonora. Espinoza Armenta was the shift supervisor for the sector that night and was one of the first people to respond the crime scene in Mexico that night. 

Espinoza Armenta said that after he received a call at 11:35, he asked for support from other units, and went to the scene, discovering the body of Rodriguez.

"No one else was around," he said in Spanish, and he found Rodriguez face down in the street, with his right cheek on the ground and his face pointed toward the building. 

Espinoza Armenta said that he detected no movement or breathing, and followed protocol by examining the scene for evidence and marking them, including an expended bullet, with small rocks or chunks of debris. 

"The evidence related to the crime must be not touched," he said, and testified that he waited for experts and other officers to arrive at the crime scene. A few minutes later, officers cordoned off the scene, and waited for officials from state investigative police and prosecutor's office to arrive. 

Later, officials from the Red Cross used a blanket to cover Rodriguez, with "respect to the body," Espinoza Armenta said. 

Espinoza Armenta also had to defend himself and his officers from Chapman, who argued that when they arrived, someone appeared to reach down and take something from the body. Espinoza Armenta said that no, instead, someone used a stone, or a chunk of stucco to mark the bullet. 

Later, four people are visible on the Border Patrol video that captured the incident that night, who approach the body, and begin taking pictures. 

Last week was the first time that Espinoza Armenta told prosecutors that his agency didn't have evidence markers and used rocks, Chapman said. "During the course of this trial, your testimony is that the Mexican police use rocks as evidence markers?" 

"Yes, we do that because we lack the means," said Espinoza Armenta

He was also asked what the Mexican police would do if Border Patrol asked for help from rockers. "We'd arrest them," he said. 

The trial will continue on Tuesday morning, beginning at 9:30 a.m., and will run through Thursday this week. It will continue next week.

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Paul Ingram/TucsonSentinel.com

Lonnie Swartz, the agent accused of unlawfully killing 16-year-old Jose Antonio Elena Rodriguez in October 2012.