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What the Devil won't tell you

Restraint in responding to border 'rockings' goes to core of social contract

Time for the public to assert itself in use-of-force policies

On the one hand, I can't believe we are having a conversation about whether cops can kill rock-throwers when officers of the law can't point to a single case of an igneous heater killing a law enforcement agent.

On the other hand, it's our job among the laity to have this talk and decide when we can be legally killed.

Border Patrol Agent Lonnie Swartz is on trial for second-degree murder for a 2012 incident that had him shooting through a border fence and putting 10 rounds into 16-year-old Jose Antonio Elena Rodriguez, who was allegedly flinging rocks at law enforcement.

Should society's commissioned law enforcement officers be allowed to shoot someone to death for throwing rocks?

No-brainer. The answer is no. Absolutely not. The whole of the social contract is on the line if society refuses to police the state's use of deadly force. And yet, there are no tautologies and absolutes are dangerous. If the thrower of the rock poses an actual threat to a Border Patrol agent's life — emphasis on actual — then maybe, yeah. That just looks like an up-close encounter and not at a distance.

Let's set aside for a moment the thought that an agent of one country fired across an international border and killed a citizen of another country in a provocative attack on a sovereign nation.

On Oct. 10, 2012, Swartz was one of a half-dozen agents were trying to intercept a couple of suspected drug runners climbing back over the border fence in Nogales. Two Nogales police officers also was on the scene. Bystanders on the Mexican side of the border started throwing rocks either over the 18-foot fence or through the small gaps between the bars. The rest of the officers were trying to coax the suspects down. Swartz shot 16 rounds at Rodriguez, killing him with 10 hits.

Well, the kids were throwing rocks and that's deadly, right? Prove it. I know the intuitive response: seems like it might be. But is it really deadly? In one incident, in which a BP agent shot at a rock-thrower, he was looking square in the eye at someone about five feet away cocking his arm. Okay, fair enough. What had to be done, had to be done. But that's not the circumstance Swartz faced or others typically face — definitely not with cross-fence stone-throwing incidents.

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"Rockings," as the agents call them, are such a pervasive problem that Customs and Border Protection has issued and reissued guidelines for when it's OK to shoot to kill in response.

The agency allows agents to open fire at rock throwers if the “totality of the circumstances” demand it to guard against death or serious injury. TucsonSentinel.com has been asking — for years — for a comprehensive list rocking incidents, including agents killed or injured. If this is such an obvious threat, I doubt that the agency or its boosters in online media would have kept it a secret.

Rocks haven't killed an agent. Can they? Perhaps. But from what we've seen, tripping over one rock and hitting your head on another seems like a more plausible danger.

If no agent has been killed, have they studied the basic physics involved in their hypothesis? Is it possible? What would it take to kill an agent with a rock? The guys at Mythbusters, for instance, completely debunked the "Penny off the Empire State Building Myth." Not only isn't a penny dropped from 1,000 feet lethal, but with a fast enough reaction time, a person could catch the penny in their bare hands without much pain. So, a big part of the "totality of circumstances" involved in the decision-making is the likelihood of death from rocking. I would hope that the Border Patrol would spend as much time sussing out that information when life and death is on the line as Jamie and Adam did for shits and giggles.

Here's the physics: force = distance x velocity x mass. Distance being the distance an object has to stop, not distance traveled. So the trade-off is between speed and size. Agents often point out that some of these rocks are awfully big. Size only matters if the velocity is constant. Handguns don't fire 12-pound rounds for a reason. So someone throwing a 12-pound rock would have to generate some serious velocity to do the same damage as a 12-ounce rock.

People authorized to kill in the name of protecting us are always going to try to tell the rest of us when it's OK to kill. They are used to bossing us around and telling us what to do in the name of public safety.

Policing a free society is harder than patrolling a police state. It's also going to be more dangerous, because the restrictions society places on law enforcement will get some of them killed. But in that distinction are the tiny degrees between heroism and a reign of terror.

The conversation about how to set those rules is vital and it's not the responsibility of police to have it. It's ours.

Preventing warlords

I'm going to take a timeout to remind us all of the big picture. We need to remember the whole point of cops in the social contract.

The very notion of a state means society has granted it what liberals and libertarians deride as “a monopoly on violence.” Monopolies are bad. Violence is terrible. So a bad degree of something terrible can't be good, right?

Wrong. It's great! It's required for civil society to develop.

The last thing we want in these United States of America is “competitive violence,” which allows for the market to determine the most efficient and application of violence to reach a desired end. Competitive violence would produce winners and losers, rather than them being simply chosen by the government. Once some individual, corporation or collective wins at the violence game, they pretty much win at everything else.

Who determines production? The successfully violent. Who determines societal norms? The winners at at violence. Who decides who wins the Final Four? The violent champions.

We've played this game before. The result isn't freedom. The best outcome is “feudalism,” the orderly subjugation of the many under the iron-clad rule of a few, who themselves report to a hierarchy of protectors. The worst outcome are the rise of warlords fighting fluid battles for control of land, people and resources. By the way, warlords wouldn't just come for your guns, they might flay you alive as a warning against future resistance.

So we establish a state and grant it a monopoly on violence for the very reason that the people can  regulate how that violence is applied.

The act of “commissioning” a law enforcement officer is to carry out the kinetic end of the social contract. So it's our job to apply conditions on their use of lethal force after having seen to their training in how to expertly and professionally dispense the power we grant them. We do this through the thing officers are sworn to uphold: the rule of law.

Police must be able to defend their lives. They must be able to meet force with force. What threat is posed by the force of rocks?

Take me out to the kill zone

There is a sport where athletes stand in a box, and await a 145-gram “rock” to be hurled toward them at 90 miles per hour. Occasionally, the pitcher tries to “brush back” a batter. Law enforcement doesn't intervene and arrest the pitcher for attempted murder and the batter is not free to shoot the pitcher.

Ray Chapman is the only player to have died from being hit by a pitch and that was in 1920.

I hear you, there are helmets. I will grant that allowance even though the batter has just a split-second to decide whether to turn his unprotected face. What about the infielders with their cloth caps watching 100-mph line drives shoot at them directly after being thwacked by a bat? No fielder has ever died during a major-league baseball game.

Thousands of spectators ring the field of play and sit directly exposed to projectilfes speeding at them and just one person has been killed by a foul ball in all the history of baseball.

Of course, a rock can kill. A Michigan man was killed just last year driving on Interstate 80, when kids dropped a rock off an overpass. The rock shattered the windshield, struck the driver's head and that was that. Realize the rock weighed six pounds and the driver was traveling at 70 miles per hour.

If one of these kids can throw a 6-lb. rock at 70 mph over a distance of 60 feet then I grant law enforcement the authority open fire. They might be smarter to sign the kid to a representation deal and then haul em up to Cactus League tryouts.

Fast projectiles simply don't seem particularly lethal because Chase Field is a ballpark and not a kill zone.

Frightened totality

In the case of Rodriguez, he had to either lob the rock over a 20-foot fence, which sits atop a 14-foot embankment, or fire one through a four-inch gap in the fence. If the rocks had to go up, up, up, hover weightless and then come down, down down, a baseball sized rock would be falling at maybe 30 mph. 

Other agents and a local cop on the scene told the jury during the ongoing trial that they didn't believe their lives were in danger. Swartz's defense is based on him saying he believed differently. If we believe Swartz should be acquitted, then we have to redefine the "totality of the circumstances" test down to "the most frightened cop" test.

Here's a good test: If the law enforcement agent is going to forego arrest, arraignment, investigation, indictment, prosecution, defense, jury deliberation, sentencing, appeal and jump straight to execution then the action they are pre-empting must be a capital offense. I'll even allow second-degree murder because the distinction often seems arbitrary to me (beating someone to death is often charged as second-degree murder but using a gun is often first-degree).

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The standard set by the U.S. Supreme Court in Tennessee v. Garner hasn't changed much since 1985. Police are only allowed to use lethal force if they reasonably and objectively conclude there's a threat to life or a threat of serious injury.

What's changing are the definitions. Objectively no longer means a weighing of the relevant evidence. It now means prioritizing it differently. Today, cops increasingly operate under the idea that "if you see the gun, it's too late." Don't wait for the threat. Assume it. In this context, rock throwing — something that hasn't proven to be lethal — is justification for lethal force because "better safe than sorry."

Border Patrol agents argue these "rockings" are very dangerous. Last New Year's Eve an agent was knocked off an all-terrain vehicle by a "grapefruit-sized rock" hitting him as he was moving about 20 mph. He was released from the hospital the next day with a deep bruise in the chest. Is that the standard of "serious injury" officers are trying to avoid? To avoid a bruise, I get to kill?

I'll even link you to a "Homeland Security Today" article that lays out agents' arguments in some detail. And that article links to Sean Hannity with an undoubtedly down-the-middle (hah, hah, hah) report on rockings. Remember, though, these stories chronicling the threat posed to the Border Patrol can't point to a single case where one was killed.

That post does include this quote from Justin De La Torre, then acting chief patrol agent in the San Diego Sector, describing the overriding concern facing his peeps. It's from 2011 but it seems very relevant today: "Agents are not looking to kill people. They simply are looking to do their job and go home at the end of their shift. They (all agents) owe it to themselves, as well as their families."

Well, that's just the thing. Law enforcement's first responsibility is to enforce the laws, even those that govern restrict them and protects the perps. Yes, dear reader, even if the perp is in the country illegally. And even if he's standing in another country entirely.

Shooting the bird

From the testimony in the case thus far, Swartz was the only law enforcement agent on the scene to feel like he was in serious danger.

If we are going to reduce the argument to “feelings” on the cops' side, then I get to reduce the issue to feelings on my side. It sure feels like the cops have started shooting anyone who challenges their commissioned authority by resisting arrest or refusing to comply with an order (“Hey, stop throwing those rocks”). So they are giving a 9-mm reply to an upturned finger because the authority must be defended.

That's authoritarianism and borderline fascist. It's not a legitimate threat to life. A rock isn't going to kill an agent of law enforcement so a law enforcement agent can not kill a rock-thrower as part of a legal process. Punishment for law in a free society requires due legal process.

Am I a jerk for reducing this to my "feelings?" I'm not the one killing 16-year-olds.

And if you are saying, anyone asks for to be killed if they fail to comply with officers commands, then you are basically proving the point. Police shootings can be as much about submission to authority as they are to protect life and limb.

Shootings are rare (because to criticize a few cops requires praising the rest of them so as not to seem in favor of complete anarchy). Hey, eight of the nine law enforcement agents on the scene in Nogales five years ago didn't start shooting. They stayed cool. So for that matter did Tesko, the Nogales police dog who may have been hit by a rock that night.

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We should remember that's normal.

The most recent statistics available show in 2011 there were 63 million officer-civilian encounters and each year about 1,000 of them end in a civilian death. On the other hand, only 28 officers were convicted between 2005 and 2017 of wrongly killing civilians — or  2.2 per year.

Most law enforcement agencies do a fine job policing themselves, but society is doing a lousy job of policing the cops who don't. Prosecutors and juries rarely dare to hold officers accountable. Instead, society as a whole often lets police set their own standards. That's our job, thank you very much.

Even police apologists who think I'm full of it and Swartz was completely justified and innocent are part of the solution — because this is our conversation to have and our authority to exercise.

It's in the contract.

Blake Morlock is a journalist who spent 17 years covering government in Arizona and also worked in Democratic political communications. Now he’s telling you things that the Devil won’t.


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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have your say   

2 comments on this story

2
1 comments
Apr 11, 2018, 8:08 am
-0 +0

The first murder, wasn’t a rock the weapon?

1
1 comments
Mar 31, 2018, 5:01 pm
-1 +0

I think Blake Morlock should be knocked off an ATV doing 20 mph by a rock just for writing this drivel.

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Paul Ingram/TucsonSentinel.com

A procession marking the third anniversary of the Oct. 10, 2012, death of 16-year-old Jose Antonio Elena Rodriguez ends at the spot where the teenager died after being hit approximately 10 times by gunfire from a U.S. Border Patrol agent.

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