Border Patrol agent indicted in fatal cross-border shooting of Mexican teen

For the first time ever, a U.S. Border Patrol agent has been indicted for murder after shooting and killing a Mexican citizen through the border fence.

Agent Lonnie Swartz was indicted Wednesday night for the October 2012 shooting of Jose Antonio Elena Rodriguez, 16. Swartz fired multiple shots through the border between Nogales, Arizona and Nogales, Mexico, hitting Rodriguez 10 times.

Border Patrol agents have said that Rodriguez was one of a group of people throwing rocks at Swartz. But witnesses told Fusion in 2013 that Rodriguez had been walking home from school and was not throwing rocks.

The teen’s family have been fighting for years to get justice, and have filed a civil lawsuit against Swartz. Lee Gelernt, an ACLU attorney who’s leading the lawsuit, told me that while the indictment was good news for the family, it’s only the first step.

“We hope that the indictment will now send a very strong signal to other Border Patrol agents that they need to act within the limits of the law,” Gelernt said. “Whether this indictment represents a significant change in policy or practice going forward remains to be seen.”

Swartz’s lawyers tried to get the family’s civil suit, which is still in progress, thrown out on the grounds that the Constitution’s protections did not extend to Rodriguez, a Mexican citizen on Mexican soil. A federal judge rejected that argument in July.

At least five other Mexican citizens have been fatally shot by Border Patrol agents in cross-border shootings, but no agents have been held criminally responsible in a similar case. The charges, for second-degree murder, were brought by the U.S. Attorney for Arizona.

Swartz is expected to plead not guilty at his arraignment next month, his attorney told the Arizona Daily Star.

The National Border Patrol Council, the union representing Border Patrol agents, said in a statement said it was disappointed by the indictment. “Sadly, our agents and all law enforcement officers operate in a world of political agendas and armchair quarterbacking…We ask the public to withhold judgment about Agent Swartz while the legal process unfolds,” the union said in a statement posted on its website.

It’s unclear why the indictment took so long. An internal Border Patrol investigation this summer into 67 use of force allegations against agents closed with finding all but one of them not guilty, a Customs and Border Protection spokesperson told me in June.

A Customs and Border Protection spokesperson referred a request for comment on Friday to the Justice Department, which referred a request for comment to the U.S. Attorney in Arizona. A spokesperson for the U.S. attorney declined to comment.

Casey Tolan is a National News Reporter for Fusion based in New York City.