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Judge orders release of ID of BP agent in 2012 cross-border shooting

A federal judge ordered the disclosure Thursday of the name of the Border Patrol agent, Lonnie Swartz, who killed a Mexican teen in a 2012 cross-border shooting in Nogales.

U.S. District Court Judge Raner C. Collins made his decision after hearing arguments at the federal courthouse in Tucson on whether to keep Swartz's name confidential as his attorney had asked.

Collins ruled that "the public's interest in this case outweighs (the) defendant's need for anonymity."

But the judge ordered that no other information about Swartz be disclosed, including his birth date, address, phone number, or current duty station with the Border Patrol.

From the ruling:

Here, the court has considered defendant’s need for anonymity and balanced the risks of ridicule, injury, harassment, embarrassment and threats to defendant and his family against the public's strong interest for disclosure in this case. The curt finds that while defendant’s concerns are valid, these do not rise to the level of overcoming the strong presumption in favor of public access. Nonetheless, the court finds that any additional information beyond defendant’s name shall be maintained confidential by the parties.

This summer, the dead teen's mother, Araceli Rodriguez, and the ACLU sued Swartz, claiming that he violated the Fourth and Fifth Amendment rights of Jose Antonio Elena Rodriguez, the 16-year-old fatally shot in 2012. 

The boy was shot Oct. 10, 2012, while walking along the street in Nogales, Sonora, by a Border Patrol agent firing from the U.S. side.

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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.

One agent fired through the border fence and shot Rodriguez 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 government agreed to provide the name of the agent, but argued that the agent's identity should remain under seal.

The hearing was in response to a motion filed by the agent's attorney to keep the name under seal. The request was based on a September filing by the family asking for the agent's name to be released to the public.

The agent's attorney, Sean Chapman, argued Thursday that his client's name should remained sealed. 

"There's nothing particularly relevant about the agent's name," he said. "If the agent had a history of violent behavior that would be different, but he doesn't."

Chapman argued that this case is different from the typical case filed in federal court because it was connected with "highly charged and emotional issues regarding immigration and the relationship between the U.S. and Mexico."

Chapman also argued that the case would be used by the ACLU and other groups to highlight systemic problems in the agency. "They want to move this case beyond this action, into something that will be nationally reported and spark a debate about immigration."

"Tucson is 69 miles from the Mexican border and people feel strongly about immigration," said Chapman. "Agents have been threatened in the past and I don’t think we need to wait until he gets threatened." 

Chapman argued that the name should remain sealed and that court filing should instead use a pseudonym and personal information be redacted, effectively keeping the agent's name under wraps. 

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Representing the family was ACLU lawyer Lee Gelernt, who was in New York and presented his argument via speakerphone.

"This is an extraordinary case," Gelernt said. "We are aware of no case in which the ID of a police officer who was acted in the line of duty has asked for their identity to be sealed."

"Virtually every case could be sealed because you can always speculate that a case will be highly charged," Gelernt said.

And, without a specific and concrete example, Gelernt said, the agent's name should be unsealed.

"We've heard Mr. Chapman flip the burden to the public to provide the reason for unsealing it," said Chris Moeser, a lawyer for Phoenix Newspapers Inc., the owner of the Arizona Republic. "Exactly the opposite is true."

Moeser said there was a strong presumption that such information remain open and that the burden was on the agent's attorney to provide compelling reasons to keep it sealed. 

In September, the ACLU filed a motion to block the federal government from permanently sealing the name.

Because the government had 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.

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.

At the close of arguments, Judge Collins said he would do the balancing test and asked Chapman if he would take the decision to a higher court. 

Chapman said that he wouldn't.

The judge finished the hearing by admonishing attorney's about press coverage from July, when Taide Rodriguez, the boy's grandmother, and the lawyers from the ACLU held a press conference in front of the courthouse.

"I recall seeing a gaggle of news reporters on the day this case was filed. That gaggle was there because of a press conference," said Collins. "That’s not the way we try cases."

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Paul Ingram/TucsonSentinel.com

Standing next to her lawyer Luis Parra, Taide Elena Rodriguez holds two photos of her grandson Jose Antonio during a press conference announcing a civil rights lawsuit against the U.S. government for the slaying of her grandson in Nogales, Sonora.