AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman. On Wednesday, Border Patrol agent Jason McGilvray pleaded guilty to a misdemeanor charge for attacking an undocumented immigrant. According to court documents, McGilvray apprehended the man, who has not been named, when he attempted to jump a border fence in Southern California earlier this year. After taking the man into custody, the border agent subsequently punched him in the face. Few details are known about the assault. McGilvray had been a Border Patrol agent since 2006. He resigned as part of his plea agreement and was sentenced to one-year probation. He’s the second border agent to plead guilty to attacking a migrant in just the past few weeks.
Earlier this month, agent Matthew Bowen pleaded guilty to intentionally hitting a Guatemalan migrant with his truck at the U.S.-Mexico border near Nogales, Arizona, in 2017. In a series of racist text messages between Bowen and other Border Patrol agents, Bowen referred to immigrants as, quote, “subhuman,” “mindless murdering savages,” this according to court documents. Bowen, who has also resigned from Border Patrol, will be sentenced in October.
Border Patrol has for years been plagued with hundreds of allegations of abuse and unnecessary use of deadly force, including the cross-border murders of at least six people on Mexican soil. Most cases are not investigated, and border agents are rarely criminally charged for using violent force.
We turn now to an internationally known case that many had hoped would change this pattern of impunity: the death of 16-year-old José Antonio Elena Rodríguez, a teenager from the border town of Nogales, Sonora, Mexico, who was shot to death by U.S. Border Patrol agent Lonnie Swartz through the U.S. border wall on October 10, 2012. José Antonio was walking home in Nogales when Lonnie Swartz began shooting at the teenager down through the border wall from the U.S. side of the border, which stands at least 40 feet above the Mexican side. It’s on a kind of ledge. The agent fired some 16 rounds through the slats of the wall into Mexico, striking José Antonio 10 times in the back and the head. In the midst of the shooting, Lonnie Swartz reloaded his weapon and kept firing. The teenager, who was unarmed, died face-down on the sidewalk just a couple blocks from his home. The border agent alleged the unarmed teenager was throwing rocks at him before the encounter. But even this claim has been disputed.
After José Antonio’s mother, Araceli Rodríguez, and his grandmother, Taide Elena, spent nearly five years fighting for justice, Lonnie Swartz went on trial for second-degree murder in 2017. A Tucson jury acquitted him and were deadlocked on manslaughter charges. In a second trial in November of 2018, Swartz was found not guilty of [involuntary] manslaughter; the jury once again deadlocked on [voluntary] manslaughter charges. Federal prosecutors didn’t pursue a third trial. Lonnie Swartz is on administrative leave, still faces a civil rights lawsuit from the American Civil Liberties Union brought on behalf of José Antonio’s mother Araceli. The lawsuit is currently pending in the U.S. Supreme Court.
Earlier this month, Democracy Now! traveled to the Arizona-Sonora borderlands. In Nogales, Mexico, I interviewed Araceli Rodríguez and Taide Elena at exactly the spot where José Antonio was gunned down nearly seven years ago — José Antonio’s mother and grandmother. I began by asking his mother, Araceli Rodríguez, to describe what happened to her son.
ARACELI RODRÍGUEZ: [translated] He was murdered October 10th, 2012. He was murdered by a Border Patrol agent who shot into Mexico and killed him with 10 bullets on his back.
AMY GOODMAN: How did you hear that he had been killed?
ARACELI RODRÍGUEZ: [translated] My brother-in-law called me on the phone and told me that José Antonio had been murdered.
AMY GOODMAN: Can you tell us about your son?
ARACELI RODRÍGUEZ: [translated] He was a very happy child. He was a good kid. He was a boy who loved his mother. He liked being at home. He liked playing basketball. For me, he was the best. I am his mother. He was a really good boy.
AMY GOODMAN: Can you explain how you understand he died?
ARACELI RODRÍGUEZ: [translated] Everyone knows what happened that day, how José Antonio was killed. He was killed here in front of the border wall. He was walking on the sidewalk. Sometimes repeating this over and over again, explaining what happened, is very painful. He was murdered, and there has been no justice. He was killed, and the world is the same. He was murdered, and Border Patrol agent Lonnie Swartz is still free. He still has a job. It is very hard for me as a mother to remember these moments, to be repeating this story, but we know we have to do it if we ever want justice.
It is so hard as a mother to speak about how my son was murdered on the sidewalk with so many bullets. How is it possible that Lonnie Swartz shot José Antonio in the back 10 times, alleging my son was throwing rocks? As you can see the height of the wall and then you see where José Antonio was killed, it is clear that he was murdered in cold blood. It is so frustrating, and it makes me so angry, knowing that a person can stick his hand in there and kill Mexican children with impunity. Nothing happened to Lonnie Swartz. He’s still free, still has a job and left my family completely destroyed. He left us with a pain in our heart that will last forever.
AMY GOODMAN: The Border Patrol agent said he feared for his life. He would have been standing, oh, 30 feet above your son walking here on the sidewalk. Can you respond to the agent saying he feared for his life?
ARACELI RODRÍGUEZ: [translated] That Lonnie Swartz lied the whole time. He tried to defend something indefensible. There was a video, because there’s a camera right there. There was a video that was allegedly lost where it showed Lonnie Swartz murdering my son. What he says about his life being in danger is not true. Everyone who comes here and sees the height of this wall realizes that Lonnie Swartz was lying about my son throwing rocks. His own co-workers at the trial said that his life was not in danger, that he could have stepped away. It was never proven that José Antonio was throwing rocks.
AMY GOODMAN: Can you describe the trials, the two trials that happened? You decided not to be in the trial for the verdict. Why?
ARACELI RODRÍGUEZ: [translated] Since the beginning, we saw how the judge and the entire jury was on the murderer’s side. They were all American. They were all racist people. The way they saw us was as if we were bugs. They gave us dirty looks. The murderer had a lot of privileges that we never did. He sat there with his water, with his coffee, with his computer, reading books if he wanted to. We weren’t allowed to look at him. We would get in trouble if we looked at him. Lonnie Swartz had so many benefits that we knew what the verdict was going to be. There was a lot of racism. I feel like even the jury was bought. They were all — no offense — gringos. There were all blond, white people, pure Americans. There was not a single Mexican sitting there.
AMY GOODMAN: You came here to the interview with your 15- and 16-year-old daughters. That’s now, in 2019. They were what? Like 8 and 9 years old? How have they been affected by the death of their older brother?
ARACELI RODRÍGUEZ: [translated] My girls were very young. Andrea was around 9 years old, and Taide was probably 8. We were all affected by José Antonio’s death. A lot of people can talk about his death, but they will never feel what a mother feels when their son is ripped away the way my son was. It is a pain, a mark that lasts your entire life. It is something you always think about. You always miss your child. If I see a young man who may be wearing a hat that José Antonio had, I remember him. Seeing a young man wearing a shirt that looked like one José Antonio had, I think it’s him, when I know he is gone. The pain will never go away. Me and my family will always feel that pain.
AMY GOODMAN: What message would you like to leave with the people of the United States about José Antonio, your son?
ARACELI RODRÍGUEZ: [translated] To put themselves in my shoes. People who are fathers and mothers, I think, are the people who may be able to understand. To have your son murdered in the way mine was is a horrific pain that I do not wish upon anyone.
To the jurors, I would ask them: Are you at peace with the decision you made? I would ask them if their conscience is clean with the decision they made. At the trial, they showed them a mannequin representing my son, showing them exactly where the bullets entered his body. He was shot in the head, and Lonnie Swartz continued to shoot him. To the jurors, the judge and the murderer himself, I ask them: How do you sleep at night? How are you at peace with yourself after you murdered my son?
I had hoped that José Antonio’s case would have justice and that it would help stop all of this. How is it possible that Mexican children are being murdered, and the American people don’t do anything? Not even the Mexican people do something, or the Mexican government. For me, both trials were a joke. They just made me angry. One, two very long trials just to declare this man not guilty. In one occasion, I overheard a Border Patrol agent saying that the agency was ready to spend money on five, even 10, trials just like this one.
This is the anger we have. We are also angry at Mexico. Mexico is not strong enough to demand the extradition of this murderer. My son was murdered on Mexican territory, and Lonnie Swartz has to pay. We will not stop fighting. I don’t like to give interviews, but I know I have to. I want José Antonio’s name to be remembered. I want people to know he was murdered by a Border Patrol agent and that nothing was done about it. We need your support. That is why I stand in front of this camera, in front of this mic, demanding justice.
AMY GOODMAN: Araceli Rodríguez, speaking at the exact location where her son, José Antonio, was gunned down by U.S. Border Patrol in 2012 — he on the Mexico side, the border agent on the U.S. side — standing in front of that mural of her son. I also spoke to Taide Elena, José Antonio’s grandmother. His aunt, Gabriela Lopez, translated for her. I asked Taide Elena to tell us about her grandson, José Antonio.
TAIDE ELENA: [translated] Antonio was a boy who was in the middle of high school. He had illusions. He had goals. Like most of the kids from his age, he was a very happy boy. He loved to play basketball. Very well educated, he was a good boy. He didn’t deserve to die like that. Nobody deserves to die like that.
AMY GOODMAN: What did he want to be when he grew up?
TAIDE ELENA: [translated] He wanted to finish high school and turn 18 and join the army. Because I would tell him, “Why do you want to be a soldier?” And he would answer me with another question: “Grandma, and why don’t you like soldiers?” “Because soldiers are trained to kill.” He said, “No, grandma, there’s also good soldiers. Not all are bad. But I want to be there because I want a career. And when I’m finished with my career, I will stop being a soldier, and I will dedicate myself to my career. That is my goal.” That was his goal.
And his biggest dream, illusion, was to ride in a plane. She had told him that she was going to take him to Guadalajara, all three of them, because they were going to make their first communion over there. He wanted to know how it felt to ride in a plane, if he could see the clouds. “You will see the clouds under you,” she would tell him. So, his months were really long, because we were going to leave in March of 2013. And he died October.
AMY GOODMAN: Taide Elena is the grandmother of José Antonio Elena Rodríguez, the 16-year-old Mexican teen who was gunned down by a U.S. border agent in 2012.
AMY GOODMAN: This is Democracy Now! I’m Amy Goodman. In October, the U.S. Supreme Court will decide whether the parents of Sergio Hernández Güereca, a 15-year-old Mexican teen killed by a Border Patrol agent, can sue the U.S. agent in U.S. federal court. The case began in 2010 after Border Patrol agent Jesus Mesa Jr. shot across the El Paso-Juárez border and struck Hernández Güereca in the head. The teen had been playing with his friends on the Mexican side of the border when he was killed.
The central question in the case is whether a Mexican citizen killed on Mexican soil by a U.S. border agent is protected by the U.S. Constitution, allowing for the family members of victims to file civil lawsuits. If the Supreme Courts rules in favor of Hernández Güereca’s case, the decision will likely impact the case of 16-year-old Mexican teenager José Antonio Elena Rodríguez.
For more, we continue our conversation with Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project, who represents José Antonio’s family in the civil lawsuit. As you watched the mother and grandmother speak, it was very familiar to you, Lee —
LEE GELERNT: Right.
AMY GOODMAN: — because you’ve been in their homes so many times.
LEE GELERNT: Right.
AMY GOODMAN: Talk about your involvement with this case and how this is going to the Supreme Court, even after the border agent was acquitted.
LEE GELERNT: Right. So, there are two parallel systems. The Justice Department brought the criminal case. The agent was acquitted. We’re not sure how he was acquitted, but he was acquitted. And so that’s that system. But we have brought a civil rights case against the agent himself for money damages. Obviously, money damages cannot undo what’s happened, but it would be some vindication to have a lawsuit that’s successful against the agent. And so, we have prevailed so far in the lower courts, and the 9th Circuit Court of Appeals said —
AMY GOODMAN: That José Antonio’s family can sue in a court here, though he was killed on Mexican soil.
LEE GELERNT: Exactly. But Sergio Hernández’s case in Texas, that U.S. Court of Appeals for the 5th Circuit said you cannot bring this civil rights suit. So the case has reached the Supreme Court. The Supreme Court will hear the Hernández case, which was ahead of our case, and that will likely impact what’s happened.
And I would say, I’ve been doing this work a long time. And what I always try and do is explain to the family this is the government’s position. And generally speaking, people understand it. They don’t agree with the government’s position, but they understand. I would say this is the hardest time I’ve ever had in my 30-year career of explaining the government’s position, because what the government is saying is, he’s a Mexican citizen on Mexican soil, although only 15 feet over the border. He cannot sue, because this is essentially a case in Mexico, is what the government is saying. And the parent — his mother and his grandmother just look at me and say, “But it’s a U.S. agent, using a U.S. firearm, standing on U.S. soil. Why does this not involve the United States government? Why does the Constitution not apply to him?”
AMY GOODMAN: And for people to understand, when you say, “How do you shoot through a wall?” there are slats in this wall.
LEE GELERNT: Exactly.
AMY GOODMAN: This is the equivalent of stories above —
LEE GELERNT: Right.
AMY GOODMAN: — where this boy was, across the street in Mexico. But there are slats in the wall, and he shot through, pointing down. It’s like a fish in a fishbowl.
LEE GELERNT: Yeah.
AMY GOODMAN: And we talked to them right where he died. There is a mural of him.
LEE GELERNT: Right, right.
AMY GOODMAN: And they stood as if he was standing with them.
LEE GELERNT: Right. And that is a street, a main thoroughfare in Nogales, where people go to school, go to medical appointments, go to business appointments. And so they have to be walking there. If they are just sitting there and can be shot with constitutional impunity, that’s a very dangerous situation. And we are hoping the U.S. Supreme Court says this civil rights suit can go forward, because this is the last straw, at least in our courts, for him.
AMY GOODMAN: What’s amazing in this trial is that his co-workers, the other border agents, they didn’t shoot at José Antonio.
LEE GELERNT: Right, right. I think what that —
AMY GOODMAN: They said they didn’t see a threat.
LEE GELERNT: Right. And if you have been there — and your piece did a great job of showing that — you would essentially have to be a Major League Baseball player even to get a rock up there to come close to hitting anybody. And so, what we’ve always said is, look, there is no way that he was in mortal danger and needed to shoot. But the question is not really whether José Antonio was throwing rocks or not. Assume for the moment, for purpose of argument, that he was throwing rocks. There’s no way that the agent could have been hurt, and that’s exactly shown by the fact that two other agents are standing there just watching.
AMY GOODMAN: And he also had lied in other situations. Explain Lonnie Swartz, who he was.
LEE GELERNT: Yeah, I mean, so, we don’t know everything that’s happened. But what we are understanding is that his disciplinary record was not great. And stuff came out at the trial, and yet the jury still acquitted. And I think that just shows how hard it is to —
AMY GOODMAN: That he had been discharged from the military.
LEE GELERNT: Yeah. That just shows how hard it is to convict a law enforcement agent. And that’s why these civil rights lawsuits are so critical. That’s why the government wants to shut it down. They’re saying, “We’ll decide whether to discipline an agent.” And that’s, you know, the fox-guarding-the-hens situation.
AMY GOODMAN: And the significance of this U.S. Supreme Court case, not only for José Antonio’s family, but for others, if it was —
LEE GELERNT: Oh, I think it’s enormous, because what it would be saying is Border Patrol agents have basically impunity there. And what we’re seeing, and we’ve seen for a long time, is serious abuse. And I think this administration is sending a signal: Treat this as if it’s a military operation. And so, we’re likely to see more and more abuse. And if the Supreme Court says these lawsuits can’t go forward, that’s going to be a very dangerous situation.
AMY GOODMAN: Well, Lee, I want to thank you very much for being with us. And, of course, we will continue to follow this story as the Supreme Court weighs this decision. Lee Gelernt is the deputy director of the Immigrants’ Rights Project at the ACLU.
— source democracynow.org | Aug 30, 2019