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BP agent's lawyer argues shooting death of Mexican teen justified by alleged smuggling activity

Rodriguez, 16, was killed by Swartz firing through Nogales border fence in Oct. 2012

The lawyer representing Lonnie Swartz, the Border Patrol agent accused of unlawfully shooting and killing a Mexican teenager in October 2012, claims that the boy threw rocks at agents and was "clearly involved" in an attempt to smuggle drugs into the United States. 

In a legal filing this week, Swartz's attorney Sean Chapman wrote that 16-year-old Jose Antonio Elena Rodriguez, and "other unknown individuals" were throwing rocks from Mexico at Swartz and other agents in an effort to stop agents from apprehending two men who were "atop of the international boundary fence." 

From the spot where Rodriguez died, on a sidewalk in Nogales, Sonora, the 20-foot high section of border fence sits on a rocky cliff that stands another 25-feet high.

Swartz is facing trial on second-degree murder in the case.

This evidence will be presented in court to justify the shooting, when Swartz aimed his semi-automatic pistol through the border fence and shot Rodriguez, hitting him nearly a dozen times, with most of the bullets striking the boy in the back. 

An autopsy by Mexican officials showed that the bullet holes were angled from the "back to the front" including an entry point "behind the auricle of the ear" and in the "posterior region" of the neck and back. 

The family contends that Rodriguez was walking on Calle Internacional to meet his brother Diego, who worked at a nearby Oxxo convenience store, when he was killed. 

"Agent Swartz’s heightened concerns about safety and security in this specific area are part of the theory of the defense in this case, and will assist the jury in assessing the reasonableness of Agent Swartz’s actions," Chapman wrote. 

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Following the shooting, Border Patrol officials said that Swartz fired into Mexico in response to a hail of rocks aimed at agents and a Nogales police officer, who were attempting to stop a group of drug smugglers near the fence dividing the twin cities of Nogales, Arizona, and Nogales, Sonora. 

In September 2015, a grand jury indicted Swartz for second-degree murder, writing that he "with malice aforethought, and while armed with a P2000 semi-automatic pistol, unlawfully kill J.A.E.R." 

Swartz pleaded not guilty to the charges in a month later, in October 2015. 

The trial has been delayed since times since it was slated to begin that November due to range of issues, including arguments from Chapman that the federal government did not have the jurisdiction to pursue his client. 

Chapman argued that the area just west of the Dennis DeConcini Port of Entry is "used exclusively by drug smugglers." 

"Given its exclusive use for drug smuggling, agents are trained that this is a dangerous area—smugglers are more aggressive, they tend to resist apprehension more strenuously, and tend to be more assaultive toward the agents," Chapman wrote. 

Chapman wrote that in December 2016, federal prosecutors interviewed a witness who lives in Nogales, Arizona, about 50 meters north of the international border, "very close to the area where the shooting occurred." The witness told federal prosecutors that he knew Rodriguez and saw him in the neighborhood as he was "growing up." 

In a heavily redacted submission to the court, Chapman wrote that the witness stated on the night of the shooting that he saw Rodriguez run by the house and head southbound toward the border fence. Later, the witness said that he saw two Border Patrol agents near the house and assumed the they were chasing Rodriguez.  The witness, Chapman wrote, "had a premonition that something bad was going to happen" to Rodriguez. 

A short time later, the witness heard gunshots. 

Chapman wrote that the testimony establishes that Rodriguez was "involved in a smuggling operation" not only when he was "attempting to rock agents, but a few minutes earlier on the American side of the border." 

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"Whether he personally transported drugs or acted as a scout is unclear—what is clear is that he was involved in this operation," Swartz argued. 

This evidence is relevant in that it provides the jury "with a complete picture of the events which occurred on that night." and justifies Swartz's "heightened concerns about this area" where the shooting took place. 

Chapman requested that the court summon the witness to "appear at a deposition in this matter." 

The incident was recorded by "several Border Patrol pole cameras operating in the area," wrote Chapman in a filing in March, arguing that the video images should be precluded as evidence because during the transfer of the original digital video, the government compressed the images, violating its own guidelines. 

The FBI responded and obtained a copy of the videos, but "made no effort to preserve the original." 

"Several years later, in October, 2015, efforts were made by law enforcement to obtain the original video captures of the incident that night. By this time, however, the original video (contained on a hard drive) had been lost or destroyed," Chapman wrote. 

This compression has resulted in "deeply flawed images," Chapman argued. 

Federal prosecutors retained a video expert, James Tavernetti, to recreate video of the incident and made several video recreations, including one which shows Swartz firing at Rodriguez from three different positions. 

Another video Tavernetti made shows Rodriguez still moving after he collapsed, "a critical fact in this case," Chapman said. 

Chapman said that his own video expert concluded that the video recreations created by Tavernetti are "completely unreliable given that they are based on a flawed copy of the original video, which was not preserved or made available." 

In November, U.S. District Judge Raner Collins sealed the videos following a request from federal prosecutors. 

While the criminal trial will move forward, a civil suit filed by the Rodriguez family remains in limbo after a three-judge panel with the Ninth Circuit Court of Appeals refused to rule, holding their decision until the U.S. Supreme Court rules on a similar cross-border shooting case from Texas. 

The Supreme Court has yet to rule on Hernandez v. Mesa, but a decision is likely to come in the next few weeks. 

Should the Supreme Court justices rule that the family of Sergio Adrian Hernandez Guereca, a 15-year-old boy who was shot and killed by BP Agent Jesus Mesa Jr., cannot sue, it's likely that the lower court would follow and rule against the Rodriguez family. 

However, if the court's justices are tied, the case would likely be reheard with the addition of Neil M. Gorsuch, who was confirmed by the Senate in early April as a replacement for Justice Antonin Scalia, who died last year. 

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

A photograph of Jose Antonio Elena Rodriguez during a vigil held for the boy in Nogales, Sonora in April.