Swartz trial: BP agent testifies he shot teen to 'protect' himself, officers from thrown rocks

Border Patrol Agent Lonnie Swartz testified Tuesday morning that he was defending himself, another agent, and a Nogales police officer when he walked up to the border fence and fired 16 rounds in three volleys into Mexico, shooting and killing 16-year-old Jose Antonio Elena Rodriguez in 2012.

"I fired my weapon to protect myself, my partner, and that other officer from a deadly force situation," Swartz said. "There was no question, they were rocking us and I stopped that threat," he said, his voice rising. 

Swartz faces faces manslaughter charges — part of a re-trial after a jury found him not guilty of murder earlier this year — for shooting and killing Elena Rodriguez in Nogales more than six years ago. 

Swartz said that the incident happened "in seconds" and that he drew his H&K P2000 pistol and walked up to the fence, and when he saw two "adult-sized shadowy figures" cock back "nearly in unison" to throw rocks, he fired his weapon, and saw one person "go down," Swartz said.

Swartz fired 16 rounds in 34 seconds in three salvos on the night of Oct. 10, 2012, fatally shooting the 16-year-old Mexican boy.

Elena Rodriguez died face down on a sidewalk on on Calle Internacional on the Mexican side of the border, just four blocks from home, down a 14-foot embankment from where Swartz stood on the U.S. side of the 22-foot-high border fence. Swartz and other border agents had responded to a report of drugs being smuggled across the fence. They were met with rocks being thrown up and over from the street below on the Mexican side.

Swartz said that the incident began while he was working outgoing operations at the Dennis DeConcini Port of Entry in Nogales, Ariz., about 700 yards east of where the shooting took place, and that Agent Steven Porter asked if he was following the radio traffic between Border Patrol agents on the west side of the border crossing and Cassandra Crane, a member of the National Guard who was controlling cameras in the area. Crane had spotted two men trying to climb over the fence.

Swartz said that he, Porter and BP Agent Shandon Wynecoop left their position because "it was slow" and went out to nearby parking lot for customs officers. There they could see "two shadows," on the fence, Swartz said. He spoke to a supervisor, he said, who asked them what was going on, and then the three agents headed up the hill. Wynecoop and Porter were in the lead, while Swartz lagged behind, he testified.

When he arrived, other agents were already there, along with a Nogales Police Department Officer Johnny Zuniga and his dog Tesco. One agent, Joshua Devowe, warned the agents that one man on the wall had a knife — a "long fixed-bladed knife," Swartz told the court — in his back pocket. 

Devowe testified during the trial last week that he saw the knife and then used the laser-sight on his Taser to point out the weapon to other agents. 

"Did that elevate your concern?" asked Swartz's defense attorney, Sean Chapman. Swartz said it did, adding "Drugs and weapons, weapons and drugs, they go hand-in-hand." 

Swartz testified that he was worried about the man who had a knife in his back pocket because Zuniga was inside "the fatal funnel" — a term of art that describes a zone of 21 feet where a person with a knife can close and attack an officer before he draws his weapon. Despite this, Swartz later pressed toward the fence with his gun at "high search," he said as he went to acquire his targets below. 

Moments later, as the agents were "waiting for resolution," Swartz said that Wynecoop said, "I think we're getting rocked."

As Swartz described it, the other agent had a "sick look on his face, and he said, "I think we're getting rocked." Then he heard a "loud ping" as a rock struck the "top plate of the fence," he said. 

Swartz said he didn't see any rocks, but then he heard someone tell Zuniga, "Hey, your dog's been hit, your dog's been hit." Swartz said he heard a "thud, like a hollow thud." And, then he heard Wynecoop say, "Shit, I'm hit, I'm hit." 

"This happened in seconds," Swartz said. "I was scared to be hit by a rock, I was scared that my partner would be hit by a rock, I was scared for that officer," he said. 

He "cautiously" walked up to the fence—"you never run to the fence," he said—and then saw "an object, a dark silhouette, adult-sized," he said. There were two people, he said, and as he watched the first one complete a throw, followed by the second one "almost in unison," he said

As he watched, the first one "cocked back to throw and I fired," he said. "I fired my weapon and I saw that person go down. I didn't see him hit the ground." 

Swartz said that he moved and he perceived a second "rock-thrower" so he fired again, emptying his magazine. 

At this point, Swartz said his memories get "gray, distorted and fuzzy" and he does not remember moving from one position to another, at one point, he stopped and fired 10 rounds, emptying his magazine before he reloaded, moved to his third and final position, and fired three more shots. 

The autopsy shows that Elena Rodriguez was hit 10 times in the head and back. One shot ripped through his back, shattering five vertebrae before it nicked his aorta, before coming to rest beneath his breastbone. Another sliced through the helix of his ear, punched through the bottom of his skull and transected both hemispheres of his brain before coming to rest just beneath his scalp. Prosectors have argued that one of Swartz's first shots hit the boy in the back, and while the wound was catastrophic, the boy was still alive when he was hit nine more times, including the last shot to the head. 

However, the defense has argued that Swartz's first shot killed him, and the subsequent shots were the result of a confusing situation in low-light. 

"The rocking has to stop, right now," Swartz said he remembers thinking. 

"Why did you throw up?," Chapman asked. "Because I had just discharged my weapon at a human being," said Swartz. "I never wanted to do that. Never." 

"Why did you shoot?" Chapman asked. "We were all in danger of being hit by rocks, sir," Swartz said. 

Chapman asked if it bothered the agent that he had trouble remembering what happened that night. "It bothers me every day; I just don't know why." Swartz said, later adding that the scene remains "fuzzy" and "distorted" years after the shooting.  

Swartz said that he remembers hearing the metal of the magazine scraping the ground, so he reached down and placed the empty magazine in his cargo pocket, before he withdrew from the border wall, and vomited.

The Swartz case is a rare prosecution of a Border Patrol agent, and the killing of Elena Rodriguez was one of several cross-border shootings that took place over a few years. After two years of criticism, in 2014, the agency sought to "remind" agents about the use of force, especially against people throwing rocks. 

The defense has tried to link Elena Rodriguez with smugglers who slipped into the U.S., and dropped two backpacks full of marijuana before attempting to climb the bollard fence that separates the U.S. and Mexico along the border in Nogales.

Duirng cross-examination, assistant U.S. Attorney Wallace Kleindienst challenged him, asking if Border Patrol agents were trained to shot at people lying on the ground. "You would agree with me that shooting an unarmed person lying on the ground would be a homicide, right?" 

"We're not trained to shoot anybody on the ground," Swartz responded. 

Kleindienst focused on three incidents when Swartz used "less-lethal" force, responding to rock throwers by firing rounds from a Pepperball launcher, a paintball gun-like weapon that shoots out plastic balls full of CS powder, and hand-thrown munitions, known as "stingballs"—a grenade-like weapons that explodes and throws out rubber balls. 

Last week, Border Patrol Agent Aaron Wehlry said that on the night of Nov. 15, 2011, he was near the border fence east of the Dennis DeConcini Port of Entry in Nogales when a group of people started to throw rocks at him. Swartz came to his aid, and the two agents used those weapons to defend themselves. 

"Was that situation stressful?" asked Kleindienst. "And, yet you were able to write a report about the incident?" 

"You have a complete memory of that?" 

"Yes, I do. Of that event," said Swartz. 

"We are in range of the rocks coming down and that is a serious, serious situation," Swartz said.  

"You never saw a rock come down?" Kleindienst asked. 

"I don't need to see a rock, my training and my experience tells me. This isn't the first time I've been rocked, and I knew what it sounded like. That's all. I elected to use less-lethal then, each situation is unique to its own," Swartz said. 

Kleindienst asked Swartz if he was the only agent to draw his weapon—another agent did so, and Devowe drew his Taser. Swartz said he didn't know, "my focus was on the threat at hand," he said. 

Kleindienst also asked the agent about his qualifications. During proficiency tests just months before the shooting, Swartz scored 91 to 96 percent in firing his pistol, and he was earning the certification to train other agents on how to shoot and when they could shoot as an instructor. 

Of Swartz's 16 shots, 10 hit the boy, and traces of three more were found embedded in the wall just above where Elena Rodriguez died. 

Kleindienst asked about his memories, and Swartz repeatedly seemed confused about what he remembered. "I don't know why; I'm not a mind doctor," Swartz said. 

Kleindienst also had Swartz read a letter he wrote to the Tucson Sector Chief Manuel Padilla just months before he was formerly indicted that he needed help getting an attorney.

In the letter, which Swartz read to the jury, he said that he discharged his weapon "at a subject" to defend himself and other agents and officers. 

Following Swartz's testimony, Chapman brought Dr. Laurence Miller, a clinical psychologist to the stand to bolster Swartz's statements that he could not remember the moments after he fired his first shots. Miller interviewed Swartz three times via Skype, and said that the agent's memory loss fits within a larger pattern of reactions to firing a weapon and killing a person. 

Miller said that for police officers, "firing a weapon is a profound event," and that he has interviewed more than 100 police officers after shootings. As part of his testimony, Miller explained how the human brain reacts to a perceived threat, and showed several studies that police officers often experience a series of psychological reactions to the massive stress of firing a weapon—including tunnel vision, intensive or diminished sound, heightened visual details, and have described either very fast or very slow motion. Police officers have also reported memory loss, he said. 

Chapman asked Miller if "less-lethal" or "less-than-lethal weapons," including the PBL and the "Stingball" grenades that Swartz regularly used, helped this stress. 

Swartz, he said, was bothered that he did not have access to "less-lethal" weapons that night, and explained that officers like to have such weapons because it gives a "greater control of the situation." Using a firearm, Miller said, "puts tremendous pressure on the officer to make a choice between using a firearm or not." 

"The harder the stress, the more likely an officer will experience cognitive distortion," Miller said. 

Feldmeier drilled into this idea, asking repeatedly how Swartz could have fired his first shots at Elena Rodriguez and remember that action, but then lose track of his next two volleys. He remembered the first shots, but the second "shocked him so much, stressed him so much, that he cannot remember?" she asked. 

Miller explained that the stress might have mounted in the agent's mind, and that the onset of his faulty memory came later, even while he emptied his magazine, reloaded and moved to a new position, where he fired three more rounds. 

For more than an hour, Feldmeier repeatedly pressed the doctor on his sense of Swartz's memories, and whether the agent is pretending that he's lost some memory of that night, Miller quipped, "Sometimes I feel like I'm on a merry-go-round." 

"Let me give you two scenarios," Feldmeier asked. "One he's an out-of-control officer shooting at phantoms?" she asked. Miller rejected that idea. "So, he's in control of each trigger pull?" 

Feldmeier asked Miller if Swartz could have fired his weapon at "the victim on the ground" because "at some level he wanted to stop that movement." 

"That speculation, I'll agree to a maybe, but that's it," Miller said, however, the doctor pushed back hard on the Feldmeier's questions about whether he had failed to identify "malingering" or signs that Swartz was faking his memory loss. "I'm not going to stick my neck out, if the subject appears to be malingering," Miller said. 

Chapman asked Miller if Swartz could he have been angry or fed-up. 

Miller said that reviewing the interviews and testimony, "none of them describe him being angry, or frustrated, or another emotion than fear," he said. 

On Wednesday evening, jurors were taken to the scene in Nogales, and there were several issues. First, the light installed in a nearby light-post was out, making the scene darker that it should be, and there was an incident involving two men.  The street was blocked off so jurors could survey the scene, but as they were looking around, one man tried to record the scene, including a second man, who was so infuriated that he punched him. Because of the fight, jurors were herded back onto the bus.

Earlier this year, Swartz was tried for second-degree murder, but after four days of deliberation following a 16-day trial, jurors announced on April 23 that while they would acquit the agent on the charge of second-degree murder, they remained deadlocked on the charges of voluntary or involuntary manslaughter.

In 2015, Swartz was indicted after a grand jury found that the agent "with malice aforethought" fired his weapon through the fence that marks the U.S.-Mexico in Nogales, and killed the boy.

In May, federal prosecutors announced that they would pursue a new trial on the two lower charges.

Prosecutors finished presenting the case against Swartz in this trial last week. Closing arguments are expected in the case this week.