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ACLU sues to reveal name of agent responsible for Nogales shooting

Attorneys with the American Civil Liberties Union filed a motion Monday to block the federal government from permanently sealing the name of the agent responsible for the fatal cross-border shooting a Mexican teenager.

On Oct. 10, 2012, Jose Antonio Elena Rodriguez was shot and killed while walking along the street in Nogales, Sonora, by a Border Patrol agent firing from the U.S. side.

At least two agents were responding to a rock-throwing incident that broke out in the wake of a report of suspected drug smuggling, the agency contends. During the incident, one agent opened fire through the border fence and killed the Mexican teen. The boy was hit approximately 10 times. Most of the bullet struck him in the back and the boy died on the sidewalk just four blocks from his home.

The agent fired through the border fence and down a steep slope, killing the teen after border agents and a Nogales Police Department officer were pelted with rocks when they stopped a group attempting to smuggle drugs across the fence. 

The government responded to a court order last month that the identity of the agent be disclosed, so that the teen's family can depose him as part of a lawsuit, by requesting that the agent's name be kept under seal by the court.

"This is an extraordinary request by the government and just one more example of how the Border Patrol attempts to shield its unlawful actions from the public," said Lee Gelernt, the lead attorney. 'The rule of law demands transparency—that’s all we’re asking for."

In late July, Jose Antonio’s mother Araceli Rodriguez, filed a civil suit against the agency, demanding the release of the names of those responsible.

Because the government has refused to identify those involved, the case was filed as Rodriguez v. John Does 1-20. The case includes 10 people identified as agents of the U.S. Border Patrol and 10 more as officers of U.S. Customs and Border Protection.

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In response to an court order, the agency agreed to provide the name of the agent responsible and the name of the private attorney who is representing the agent, the motion said, but only if Rodriguez agreed to keep the name under wraps.

"The public interest in knowing the identity of a federal agent sued for the use of deadly force during his official duties is paramount,” attorneys wrote.

Last month, a team of U.S. investigators worked to reconstruct the scene of the shooting. A pair of assistant U.S. attorneys and Homeland Security personnel met with Mexican police in Nogales, Sonora., to examine the scene of the fatal shooting.

Assistant U.S. Attorneys Wallace Kleindienst and Karen Rolley and other American law enforcement agents used a 3-D laser scanner at the site.

The use of force by the agency has come under increasing scrutiny.

In May, Border Patrol responded by releasing a report the agency had commissioned in 2013, which was highly critical of the use of force by agents.

The 21-page report by the Police Executive Research Forum, a nonprofit research and policy organization, cited a "lack of diligence" with regard to investigations, and a "no-harm, no-foul" approach that lead to "tacit approval of bad practices."

The report also questioned the agency's seriousness with regard to deadly force incidents, writing: "It is not clear that CBP consistently and thoroughly reviews all use of deadly force incidents."

"Too many cases do not appear to meet the test of objective reasonableness with regard to the use of deadly force," the report said.

The release of the report was part of an effort to make the agency more transparent, said Commissioner R. Gil Kerlikowske at that time.

Despite the increased transparency, the agency has yet to release details about the shooting of Elena Rodriguez, including the names of the agents involved in the incident. A similar investigation in Mexico has also not been released.

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 M. Ingram/TucsonSentinel.com

Near the spot where Jose Antonio Elena Rodriguez was killed is a mural depicting the 16-year old boy, pictured here during a Not one more death' during a protest in the Mexican border city of Nogales, Sonora, held one year after his death.