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What the Devil won't tell you

Time for CBP to bring citizen review into use of force rules

Public needs to step up in wake of Swartz trial

Now that Border Patrol Agent Lonnie Swartz has been acquitted for the second time, federal prosecutors made a tough but ultimately wise call in not pursuing a third trial stemming from the fatal cross-border shooting of a Mexican teenager.

Jose Antonio Elena Rodriguez, 16, had been on the Mexican side of the border throwing rocks over a 22-foot border high fence at a border agents responding to a drug trafficking report. Swartz fired off more than one clip and struck the Mexican teenager 10 times.

It’s always easy to bitch about jury verdicts, but bitch carefully unless you sit through all the testimony, review all the evidence and apply the law as the judge instructs.

Swartz may not have broken the law but that doesn't mean he properly used deadly force, and it's time for Customs and Border Protection to loop citizens into deciding when that force is justified. Stock a review group with border-area ranchers, business owners, civil rights activists and community leaders. Let them suss it out. The people, in fact, should demand that right, because it's theirs and theirs alone.

Personally, I don’t believe (and physics would concur) that lobbing rocks over a 20-foot fence sitting on top of a slope that's more than 10 feet high constitutes an imminent threat. It’s also hard to argue that a rock falling by the force of gravity is going to cause imminent bodily harm. Check that. A rock in the dark just laying there on the ground could cause imminent bodily harm. You might trip over it. I’m not going to fire 40 rounds into it. Throwing rocks isn't a capital offense, so capital punishment is unwarranted. That's my opinion. It doesn't have to be yours.

I wrote a column earlier this year saying rocking isn’t deadly. Some people disagreed. Some suggested I be stoned (or maybe that I was). It was a discourse. People discussed the ins and outs of Gun v. Granite sensibilities.

Naturally, the civic-minded want to respect law enforcement and give them the tools they need to do a job that is inherently dangerous. Never mind the threat of rockings. To me the far more dangerous situation confronts the Border Patrol agent who manages to single handedly run across a dozen undocumented migrants five miles from anywhere deep in the desert. This happens. A single agent suddenly has in custody 12 people suddenly doing some quick math. I might use force if one of them sneezes.

Many of us see police as that thin blue line between civilization and chaos. There are bad people doing bad things and good people who may be tempted from the path of righteousness. I have seen, as a journalist, cops I would want to date my sister and frankly, I’ve come across Tucson police doing their job with exquisite professionalism.

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It wasn’t always thus.

On a night in 2000, I watched the cops lose their effing minds and it landed me in the hospital. The voting public, of course, was with the cops. They weren’t there. They didn’t examine the evidence. They just saw dramatic footage and decided accordingly.

The night they drove Lute Olson down

On April 2, 2001, Duke forward Mike Dunleavy, Jr., dropped three three-pointers in 7.3 seconds to shank the Arizona Wildcats' hopes for a second college men’s basketball title. I didn’t really get to watch the game because I was assigned to dart all over campus and get "color" of students watching the game. So, I started at McKale Center, popped over to Cochise Hall, dashed off to the old Student Union building before ending up at Blue J’s on East University Boulevard.

Then the city desk told me to go hang out on 4th Avenue, where a crowd was gathering like a storm. Well, a drizzle at least.

What I found on 4th Avenue was low-grade public disorder among a crowd of a few thousand. College-age young men climbed light poles and pulled off plastic cowlings from the street lamps as onlookers cut loose with that testosterone-charged yelp known through the ages as a “Woo! Hoo!” They lit a fire right there on the avenue. More woo-hoos. The flames were small enough so guys were doing cartwheels over them. This wasn’t the Chicago Fire. To the degree that women got involved, there was some Mardi Gras-style breast-baring so that the “woo-hoos” got punctuated with a “Yeaaahh!”

A few blocks away, another crowd gathered in a parking lot. There were about 20 guys who decided it was time to start destroying cars. They set a camper on fire and flipped a hatchback before torching it. That was as bad as it got and destroying someone’s ride is well worth a prison sentence.

It was an itsy-bitsy percent of the crowd that committed this crime far removed from the main throng. And yet, that was the video TV news viewers saw that night. The Wildcats lost and then rioters set cars on fire. Thank God the cops were there, right?

Element of surprise

Wrong. The cops were nowhere to be seen. 

Two cops in the parking lot could have prevented the fire. A finger-wagging mom would have done the trick. A display of law and order on the streets as the bars let out would have had a marked affect. The riot was a slow-boil of young people slowly escalating and timidly crossing a line before doing the same to another. At no point was it dangerous to be on the street. Mischief – not menace – filled the air.

But officers were AWOL.

Don’t take my word for it, check out what 60-year-old software engineer Robert Morrison had to say about the melee a year later when a citizens advisory panel reviewed the matter.

“I want to know where the police were when we needed them and why we were fired on when we did nothing wrong,” Morrison told the panel.

Oh that’s right. I forgot that part. When the cops did show up they started indiscriminately shooting people.

Morrison stood in his front yard trying to make sure a large crowd of people didn’t set foot on his property when police arrived and started firing wooden bullets and bean bags at him.

I would become intimately familiar. 

When a skirmish line formed near the 4th Avenue underpass, I jogged up to hear what the officer was saying into a megaphone. It was going to be color for my copy but I couldn’t hear a damn thing because a helicopter thwap, thwap, thwapped overhead. I was leaning forward about 40 feet from the officer issuing the dispersal order through a bullhorn and could only make out the name “Gov. Jane Dee Hull, wah wah, wah, garble, garble.” The rest of the crowd were about a football field behind me.

So the skirmish line began advancing in lockstep, shoulder-to-shoulder, rapping their batons on plastic shields. I retreated, wanting not to get in their way but wanting to pay witness to the police response.

A couple heading south approached the line and started to tell officers that they were parked in that direction, asking politely to scoot past. An officer answered by lunging at them, raising a rifle and firing two wooden bullets into the woman’s back as she instinctively crouched.

What happened next? I don't know. I was busy sprinting.

OK, I told myself. Don’t approach the skirmish line. About that time, a guy in his mid-20s came up to me and said “you are with the press. The cops just shot me for no reason.” I started to explain that you can’t move near the skirmish line but assured him cops don’t shoot people for no reas –

My arm exploded. It felt like I got hit by a baseball bat right on the radius or ulna (I can never keep them straight). Then I ran – again, fast as I could – away from the skirmish line because Gannett didn’t pay me enough. Thwack. Another blow from a bat straight crossed my lower back.

Phoenix reporter Donna Rossi was shot doing a stand-up in a private parking lot. Arizona Daily Star photographer Chris Richards was shooting photographs when he fell on his back. An officer leapt forth and fired down at him helpless on the ground.

It was like Tucson’s finest were taking out years of frustration on a thankless public because someone told them they could kick some ass without paperwork.

Yeah, you say, but they were less-lethal rounds. So’s a rock. And according to force = mass times f/s2, a 40-gram bean bag round moving at 300 feet per second creates more force than a half-pound rock moving at 50 miles per hour. We were in more danger than Swartz was, so says Isaac Newton’s Second (Trump supporters feel free to shout “fake news” here at the reference of elitist physics).

I wound up at the Tucson Medical Center emergency room that night wondering if my arm had a hairline fracture. I was fine but I couldn’t lay on my back for about a week.

Our crime on the street was that we weren’t following a legal dispersal order – the one we couldn’t hear. In both cases, the public had no say in how the state practiced violence. But in Tucson’s case, the public got one after the fact.

That's the big take-away. The public used a crazy situation to get involved here. They can do it along the border.

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A citizens panel commissioned by the city conducted an in-depth review of the police response. Police weren’t properly trained to use the new less-lethal weapons. The dispersal order wasn’t properly delivered. Oh yeah, and don’t tell people to go home but open fire on them as they head to their cars. Assistant Police Chief Bob Lehner would serve as liaison to the citizens panel and admitted “we didn’t handle the egress very well.”

Key to the whole melee, though, was that police failed to work with the community ahead of time. Had they done that, maybe O’Malley's doesn’t close immediately after the game. Maybe the police have more of a deterrent presence on the streets. Instead, the strategy seemed to be that the people were the enemy and operational security was paramount so officers could achieve the element of surprise against the public they were meant to serve.

That's a half-step removed from a sneak attack.

Borderline calls

Nothing is going to bring Elena Rodriguez back to life. Nothing is going to give Swartz the past three (or five) years of his life back. The people, though, can do what we in Tucson did and loop themselves into answering the question about how the government deploys its monopoly on violence.

Customs and Border Protection has very little public input on that question and that’s our fault – not theirs. CBP Commissioner Kevin McAleenan came up through the Customs Service ranks and his deputy, Robert Perez, is a career man in federal law enforcement. They report to a civilian in Kirstjen Nielsen in Washington but she's far removed from the communities where they do their policing. Above her there's Donald Trump, annnnd ... I'm not holding out much hope there.

In 2016, the agency had an outside group review their use of force criteria. The Police Executive Research Forum came back with a slate of recommendations, including an ignored suggestion to not shoot people for throwing rocks. Yet the Police Executive Research Forum is exactly that. It’s run by police chiefs from all over the country. So, they are still self-policing.

Every profession would prefer to police itself (hello lawyers). Who wouldn’t? But most professions don't have a license to kill people on their worst days and in their worst moods. 

A border citizens advisory panel hardly sounds like a huge step toward justice but think about it. A BP commissioner defying the stakeholder panel that advises him could cause political headaches. Very often, the fear of political headaches is enough to correct bureaucratic behavior.

It’s also possible that a smooth operating commission serving alongside citizens oversight figures out how to co-opt that panel. But at least there’s a potential for an institutional check, even if that check is not exercised.

I don’t know if Lonnie Swartz would have shot at Rodriguez that night if his agency had to endure that kind of public scrutiny. Maybe there would be a policy against using lethal force against rock throwers. Maybe there wouldn't. Maybe Swartz would heed the policy. Maybe he wouldn't.

I know this much. I also covered the Iraq War protests two years after the 4th Avenue fracas and the same cops were on the scene, with the same riot gear, carrying the same weapons and they couldn't have been more professional. They maintained order and enforced restrictions protecting public rights of way. Arrests of those offering themselves up for arrest were conducted with good care and good order.

Did the panel help? I wasn't up in the halls of the cops administration, so I can't say for sure. I know it didn't hurt because the response was night and day from Duke Night.

It’s society’s job to impose limits that may make the job of policing harder. 

In Swartz’s case, it comes down to a single question: Did Elena Rodriguez have to die? Do all rock throwers have to have their lives end, or just that teenager? Is a cop's broken bone worth more than a rock thrower’s life? If so, how come the legal system doesn’t establish assault on an officer as a capital offense? These are questions we the people should have a part in answering alongside the pros.

Society doesn’t establish any more serious government power than when agents of the government get to kill. So society can’t just outsource the questions to that government. It's up to us.

Blake Morlock is an award-winning columnist who worked in daily journalism for nearly 20 years and is a former communications director for the Pima County Democratic Party. Now he’s telling you things the Devil won’t.


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Paul Ingram/TucsonSentinel.com

A photo of Elena Rodriguez during a 2017 vigil for the boy in Nogales, Sonora.

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