In November, a jury found Border Patrol agent Lonnie Swartz not guilty of involuntary manslaughter for shooting and killing 16-year-old José Antonio Elena Rodríguez through the U.S.-Mexico border fence in 2012. The jury hung on whether to bring a charge of voluntary manslaughter, leaving it unclear whether prosecutors would seek to try Swartz a third time. A previous jury acquitted Swartz on murder charges but deadlocked on lesser manslaughter charges. Authorities claim José Elena Rodríguez was throwing rocks at agents over the border fence before Swartz opened fire. But medical examiners say José was shot as many as 11 times, with all but one of the bullets striking from behind, leading them to conclude the teen was shot in the back as he lay on the ground. We speak with John Carlos Frey, Emmy Award-winning investigative reporter and PBS NewsHour special correspondent. He has reported extensively on the killing of José Antonio Elena Rodríguez.
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: This is Democracy Now! I’m Amy Goodman, with Juan González.
JUAN GONZÁLEZ: We turn now to Tucson, Arizona, where last week a jury found Border Patrol agent Lonnie Swartz not guilty of involuntary manslaughter for shooting and killing 16-year-old José Elena Rodríguez through the U.S.-Mexico border fence in 2012. The jury had a hung decision on whether to bring a charge of voluntary manslaughter, leaving it unclear whether prosecutors will seek to try Swartz a third time. A previous jury acquitted Swartz on murder charges but deadlocked on lesser manslaughter charges.
AMY GOODMAN: Authorities claim José Elena Rodríguez was throwing rocks at agents over the border fence before Swartz opened fire, but medical examiners say José was shot as many as 11 times, with all but one of the bullets striking from behind, leading them to conclude the teen was shot in the back as he lay on the ground. This is José’s mother, Araceli Rodríguez, and his grandmother, Taide Elena, speaking just after the verdict last Wednesday.
ARACELI RODRÍGUEZ: [translated] They are giving him back a certification to keep killing, because if they declared him not guilty after having killed a teenager with 10 bullets in his body, they are giving the him a green light and permission to continue killing.
TAIDE ELENA: [translated] What happened here was an injustice—an injustice—because this is a crime more clear than water. And I still cannot understand how they can say the man is not guilty, when the evidence is so clear. Right now, one is left with anger, feeling helpless, disillusioned with the laws of the United States.
AMY GOODMAN: Last Wednesday’s verdict came after President Trump said soldiers deployed to the border could use deadly force and after he suggested soldiers could respond to migrants throwing rocks with gunfire.
We’re joined now by John Carlos Frey—he’s in Los Angeles—five-time Emmy Award-winning investigative reporter, PBS NewsHour special correspondent, recently returned from reporting trips in Guatemala, Mexico City and Tijuana, where he was documenting the migrant caravan. He has reported extensively on José Elena Rodríguez, the Mexican teenager killed by Lonnie Swartz in 2012.
Your response to the acquittal, John Carlos? Thanks so much for being with us.
JOHN CARLOS FREY: Sure.
AMY GOODMAN: And explain this case further to us.
JOHN CARLOS FREY: Sure. I’m not surprised. I even hate to say that out loud. This is protocol. This is procedure. This is how the Border Patrol operates. They are free to fire their weapons at rock throwers. They consider rock throwing or a projectile, a rock, a lethal weapon. They consider it to be as lethal as a gun, so they can return fire.
Since 2010, I’ve documented 10 cases where the U.S. Border Patrol has fired its weapon into Mexico. José Elena Rodríguez was standing in a sovereign country, in a foreign country, in Mexico. We have agreements with Mexico where we’re not supposed to fire our weapons into that country. It’s happened 10 times since the year 2000, and in six of those 10 cases, we’ve actually killed people standing on Mexican soil, as was with the 15-year-old.
I’ve stood where the boy was standing. The fence itself is probably 40, 50 feet away, and then the fence height is probably another 60, 70 feet up. It stands on a hilltop. So, for a young kid who was a pretty small boy to throw a rock over the fence and to start striking Border Patrol agents is almost next to impossible.
I’ve read the police report that was issued by the Nogales Police Department on this particular case. And on the night of the incident, it appeared that there were rocks being thrown as a couple of individuals were trying to climb back over the fence into Mexico. According to the report, these individuals were carrying bales of marijuana. They were trying to evade the Border Patrol. They were climbing back into Mexico. Rocks were being thrown, and one of the rocks struck one of the Border Patrol agent’s dogs, and the dog yiped. And when the dog yiped, someone said, “My dog has been hit,” and they opened fire. I’m not quite sure what police agency in the United States would allow for their officers to open fire on someone throwing a rock and hitting a dog, but that seems to be exactly what incited this, at least from the police report from the Nogales Police Department.
Protocol in this particular kind of a case at the border is very clear. If there’s an incident south of the border on the Mexico side, if something is happening and we witness it or U.S. agents witness what’s going on on the Mexico side, the Border Patrol agents, in this case, should have called Mexican authorities. If there was indeed rock throwing going on on the Mexico side, we’re supposed to alert authorities on the Mexico side, and they’re supposed to take care of their own country. We’re not allowed, by agreements, to open fire. So, that wasn’t necessarily part of the case here. The case basically hinged on the fact that Border Patrol agents are allowed to fire on people throwing rocks.
JUAN GONZÁLEZ: But—
JOHN CARLOS FREY: There have been studies—go ahead, I’m sorry.
JUAN GONZÁLEZ: But, John, I wanted to ask you, given the sheer number of bullets here—we’re talking about 10 bullets in the back—you’re saying you’ve reviewed the police reports from the Mexican side on this situation. Did they recover the actual bullets? Because, obviously, if he was shot while he was on the ground, the bullets would have been in the ground after having hit him. What does the forensics say about how these shots were fired?
JOHN CARLOS FREY: This was a young boy who had on his body a cellphone in his pocket. That’s all he was carrying. He wasn’t armed. Evidence suggests that he was not throwing rocks. There was no residue on his hands or on his fingers that even appeared that he was one of the individuals throwing rocks.
It appears, by forensics and the angle of the projectiles, that the first bullet entered his head. The kid fell to the ground. And as he fell to the ground, the agent continued to fire and unload his weapon. He unloaded his entire revolver into the back of the individual. The boy was lying flat on the sidewalk as the agent continued to fire his weapon. So he was already down. He did not pose a threat. If he was indeed throwing rocks, he stopped throwing rocks after the first bullet, and there was no reason to shoot another eight or nine bullets into the back of the individual. So, that’s the case there.
The case hinged on the fact whether or not the agent was allowed to fire his weapon, and Border Patrol protocol suggests that he was allowed to fire his weapon. It’s really the only police agency in the United States that is allowed to return fire, gunfire, when someone is throwing a rock. Studies have proved that after about 50 feet, if someone is standing 50 feet away from an individual, the projectile, the rock, is not dangerous. Yet Border Patrol agents continue to fire their weapons at individuals who are throwing rocks.
There has never been a Border Patrol agent in the history—in the hundred-year history of the Border Patrol—that’s been killed by a rock. In the history of the United States, in regards to rock throwing, since 1792, when records were first kept, there is only one police officer in those over 200 years that’s actually been killed by a rock. It’s not really lethal force.
So, the fact that Border Patrol agents are allowed to fire their weapons at rock throwers is something that we don’t even agree with in international arenas. The State Department condemns rock throwing and opening fire when it happens in foreign countries. In the Israeli-Palestinian conflicts, the State Department has condemned Israeli soldiers for opening fire on rock throwers. In Egypt, we’ve done the same thing. But we allow the Border Patrol to actually open fire on rock throwers.
AMY GOODMAN: Let’s go to President Trump escalating his attack against Central American migrant caravans making their way to the U.S.-Mexico border, including warning soldiers could shoot migrants for throwing rocks.
PRESIDENT DONALD TRUMP: We’re not going to put up with that. If they want to throw rocks at our military, our military fights back. We’re going to consider it—I told them, “Consider it a rifle.” When they throw rocks like they did at the Mexico military and police, I say, “Consider it a rifle.”
AMY GOODMAN: “Consider it a rifle,” John Carlos Frey. You put that together with the number of—increased number of Border Patrol agents, now thousands of U.S. soldiers along the border.
JOHN CARLOS FREY: Well, if you look at the incidence of Border Patrol agents opening fire, there’s over—the statistics, the last statistics that are available—about 300 incidents in 2014 of rock throwing at the U.S.-Mexico border, and the Border Patrol agents opening fire about 20 percent of the time. So, this is common. This is what Border Patrol agents do.
There are many ways that Border Patrol agents can protect themselves. They can drive away from the scene, step back. They can use shields to protect themselves. There are many ways instead of using lethal force. There are many protocols in law enforcement that basically say that agents should use commensurate or equal force. If somebody holds a gun to you, then you’re allowed to open fire. But if somebody throws a rock, I don’t see it as an equal amount of force coming back.
I’m not saying that Border Patrol agents are not in danger and they don’t experience rock throwing, but as I’ve said before, not one Border Patrol agent in the history of the Border Patrol has been killed by a rock. So I’m not quite sure why we’re allowed to return lethal force.
JUAN GONZÁLEZ: John—
JOHN CARLOS FREY: I’ve spent time in the—yeah, go ahead.