Swartz: 'I'm gonna defend myself' — BP agent accused of murder takes stand

In emotional testimony, Lonnie Swartz, the Border Patrol agent accused of murder in the shooting death of a Mexican teenager more than five years ago, told jurors Monday that he was scared and fired his weapon after a fellow agent and a Nogales police dog were hit with rocks thrown over the border fence.

Swartz testified for more than two hours, and said that after an agent yelled out that he'd been struck by a rock, and another agent said that the police dog had also been struck, he thought, "This has gotta stop. Somebody's going to get hurt."

The border agent is on trial for second-degree murder for the killing of Jose Antonio Elena Rodriguez during a cross-border shooting in Nogales the night of Oct. 10, 2012.

Swartz testified Monday that once he decided to fire his weapon, he cautiously walked up the fence with his weapon drawn, and he saw two "shadowy figures" on Calle Internacional. 

"In unison," they cocked their arms back, appearing to throw rocks at the fence, and Swartz said he fired his weapon, shooting at least three .40-caliber rounds from his H&K P2000 pistol at one of the individuals, who went down, he said. Swartz said he moved to a second spot, and fired at what he thought was the second rock-thrower.

Swartz said that at this point, things went "gray" and got "very distorted" and that he didn't remember emptying his magazine and moving more than 45-feet from location to location, before reloading at a third spot along the fence and firing three more rounds across the border in Mexico.

Swartz fired 16 rounds in 34 seconds, hitting Rodriguez 10 times, including one shot that sliced through the helix of the boy's right ear, and punched through both lobes of his brain before coming to rest just beneath his scalp. 

Rodriguez died on the sidewalk on Calle Internacional just four blocks from his home, and at the bottom of an 14-foot embankment, atop which Swartz stood in the U.S. behind the 22-foot-high border fence. The trial began March 20 in a federal courtroom in Tucson.

Prosecutors have stipulated that Rodriguez was throwing rocks over the fence during an incident when two Mexican men, alleged drug mules, were attempting to climb back over the border barrier while fleeing from U.S. law enforcement, but have argued that the final shots that killed the boy came well after he ceased to be a threat. That has led to questions about whether the shooting was "reasonable or necessary" — the legal standard for using deadly force, as an expert pointed out in court last Monday.

"I'm gonna defend myself, and defend my partner and that other officer," Swartz said. 

Swartz was one of a half-dozen Border Patrol agents who arrived at the scene along with two Nogales police officers, who responded after two men attempted to smuggle bundles of marijuana into the United States, and then turned back and climbed up the 22-foot high fence to slip back into Mexico. 

Swartz was assigned to the outgoing lane of the nearby Dennis DeConcini Port of Entry along with two other agents, Stephen Porter and Shandan Wynecoop, who heard over the radio that people were attempted "to move dope" into the United States. The three agents decided to respond and left two other agents at the port, while they ran up the hill west toward the scene. 

Wynecoop and Porter were faster than Swartz, and ended up ahead of him, he said. 

Swartz said Monday that the area where the incident happened was known for drug smuggling, and that people often tried to use the neighborhood as cover to smuggle drugs to vehicles waiting near Interstate 19 or to the nearby area he called Crawford Canyon. 

Unlike undocumented aliens, drug smugglers could be combative, he said. "They don't throw their hands up. There's going to be a struggle," he said. 

One man was already on the fence, and another man was struggling to climb it when BP Agent Joshua Devowe noticed that one man had a fixed-blade knife in his pocket. Devowe called it out, and testified that agents testified that he unholstered his taser, and pointed it at the men. 

At the same time, Johnny Zuniga, a Nogales police officer, drove up in his SUV and brought out Tesko, a police dog. Zuniga said during his testimony that he made the dog bark, and tried to talk the men down from the bollard fence. 

Swartz said that as he came up next to Zuniga's vehicle, he spoke to fellow agent Wynecoop. Wynecoop, he said, had a "sick look his face," and he called out, " I think we're getting rocked, I think we're getting rocked."

Swartz said he heard a "loud ping on the fence,"  which he said was a rock striking the steel metal plate that caps the bollard fence that separates Nogales, Ariz., from Nogales, Sonora. 

"I know it was a rock immediately," Swartz said. "I've heard it in past times."

Then Wynecoop yelled out, "Shit! I'm hit." 

This was followed with what Swartz called a "thud." 

"A hollow thud, I can't describe it, just a hollow thud," he said, and then someone called, "your dog's been hit, your dog's been hit," he said. 

Swartz was referring to the Nogales police dog, Tesko, who was at the scene with his handler Johnny Zuniga. During his own testimony, Zuniga said that he didn't see or feel a rock strike the dog and that after the incident, he checked Tesko for injuries, and had the dog checked at a vet's office. 

During his own testimony, Wynecoop said that he was focused on the two men who were stranded on the fence. One man was straddling the metal bollard fence, and the other was struggling to climb back up, he said.

As officers and agents ordered the men off the fence, a few rocks tumbled in, thrown from the other side of the fence, and one hit the toe of his boot, said Wynecoop. 

Realizing that people on the street in Nogales, Sonora, about 18 feet below them, were throwing rocks, Wynecoop said he backed up and tried to get some distance from the fence. 

Swartz told the court that he "elected to defend myself, my partner, and those officers" and he walked up to the fence with his pistol drawn, and fired it. 

Swartz said that he stopped firing after his first salvo, and looking to see if there were more rock throwers, and then he moved to his second position where he "perceived another rock thrower," and fired his weapon again. 

At this point, he said that things got "very distorted." 

"I'm not a head doctor, I don't know why or how far I moved, things get very unclear at this point," he said, adding that he never heard the sound of his pistol firing. 

Swartz said that he didn't know how many shots he fired, but that after he stopped, he heard a metallic sound at his feet, and he realized it was an empty magazine, so he picked it up and placed in a cargo pocket. Then, he went on the radio and said that someone was down in Mexico. 

Swartz said that he still had memory problems and couldn't remember details of the incident. 

"I try to remember, ever since that night, I want to remember, it's a piece of life that has been wiped away. I just can't recall certain things, and I struggle with this. I want to remember — I've tried for five years — and I look for it, but I just can't find it," he said. 

Swartz said that after the shooting, he went to a nearby light pole and then vomited. 

"I threw up, uncontrollably," Swartz said, and then the agent sobbed for a moment on the witness stand.

"Why did you throw up?," asked Sean Chapman, his defense lawyer. 

"Because I just discharged my weapon at a human being," he said. 

"How long did this event take?" asked Chapman.

"I have no idea," said Swartz, who sobbed again, and asked for a moment to collect himself. 

Chapman also focused on Swartz's training with "less-lethal" weapons in the Border Patrol's arsenal, noting as he had in past weeks that Swartz had trained on the PLS launcher, a weapon that fires paintballs filled with pepper-spray, and the FN 303, a larger weapon designed to fire a projectile that breaks up on impact.

Swartz used such weapons, including "stingball grenades" which throw out small .32-caliber rubber bullets in several other instances in the year before, often using the "less-lethal" weapons against people who threw rocks, and in one case a bottle, at the agent. 

Wallace Kleindienst, the assistant U.S. Attorney, asked why Swartz didn't use a less-than-lethal weapon, and Swartz said that his firearm was "the only thing on my belt to stop them rocks," he said. 

Carrying "less-lethal" weapons at the port of entry was "frowned upon by supervisors" Swartz said, adding that the weapons were inappropriate because they lacked a shoulder sling and were "intimating to the general public." 

Kleindienst asked if Swartz ever looked back at the other agents, and Swartz said no, that he was focused on the threat in front of him. 

Kleindienst also noted that Swartz volunteered to become a firearms instructor at the Nogales station in the summer of 2012, and was given extra training on the legal use of force and how to use a weapon more proficiently, noting that in the agent's four qualification tests on the P2000 pistol, his accuracy was between 91 to 96 percent. 

Swartz said earlier that during his training at the Border Patrol academy in Artesia, N.M., trainers had described the dangers that rocks possessed and showed agents a gruesome video and photos of an agent who had been struck by a rock, and that during his time in Nogales, Swartz met an agent who needed reconstructive surgery after someone dropped a concrete block on his head while he was near the U.S.-Mexico fence. 

Swartz said that he was told that "near the fence, bad things can happen," he testified. 

During cross-examination, Kleindienst also noted that Swartz had been rocked multiple times before:"Each time you used force, you elected to use that rather than seek cover?" 

"Did you ever take the option of taking cover?" he asked. 

Swartz said that "we're not required to run and hide and take cover." 

Kleindienst also focused on the fuzziness of Swartz's memories, asking why Swartz didn't pay attention to the two men on the fence, but rather on people in Mexico and why he didn't retreat, but advanced toward the fence. 

"Do you think it's a convenient way to not have to account for what happened that night?" he asked. 

Swartz bristled at this, and argued that all the agents were in danger, and that he didn't need to see the rocks coming over the fence. 

"I don't need anymore than that," he said. "Those rocks are coming down over the fence, and I don't have to wait until I'm hit in the head, and my eye is hanging out, to react." 

Swartz said he "didn't have time" to consider what other agents were doing, because he had "only seconds to act." 

Swartz said that he fired on who he thought was a second person. "I would never intentionally fire on someone lying on the ground," said Swartz. 

Toward, the end of his questioning, Kleindienst asked, "Did you cry here today because you were crying for yourself, or you were crying for the person who was killed?" 

"I don't never feel good about that, ever," Swartz said. "That was the only way to stop them rocks." 

Swartz was followed by Laurence Miller, a clinical psychologist who interviewed the agent three times via Skype for the defense team.

Miller noted that because of the way the human brain works, memory is often affected by adrenaline and other hormones created by the brain's reaction to dangerous and lethal events. 

The brain, he said, "shuts down memory storage processes to increase the efficiency of the brain to help one survive," and said that it was common for people under threat, including police officers, to experience a series of common reactions, including memory impairment, tunnel vision and tunnel hearing, and "threat magnification." 

The brain, Miller said, will "magnify perceived threats of circumstances" and a person will react even beyond what other may perceive as reasonable force. Officers will "mistake what later appeared non-lethal is perceived as lethal." 

"This is nature's way of trying to save you," he said. 

The jury trial will continue on Tuesday, beginning at 9:45 a.m.