Mimesis Law
8 December 2019

Cross-Border Crime, Both Ways

Dec. 16, 2015 (Mimesis Law) — People in Mexico throwing things over the border fence and hitting United States Border Patrol agents is apparently a real problem. A Los Angeles Times article discusses it:

Every other day, something large and heavy flew over the rusted 20-foot tall border fence and crashed in the U.S. Chunks of concrete pulled from a crumbling sidewalk. A 3-pound piece of quartzite. Sometimes they came in barrages.

Border Patrol agents on the U.S. side of the fence called the incidents “rockings,” and when rocks hit their targets, they opened gashes on agents’ heads, split the skin above their eyes and left their uniforms a bloody mess.

I’d never really thought about it, but it makes sense that people might throw things over the border. Whether it’s just kids being kids or people, who are genuinely angry about something and want to take it out on the United States Border Patrol specifically, or on someone who can’t exactly come and get them generally, it doesn’t matter much. The rocks are injuring agents the same either way.

It’s an interesting situation, but not one with an easy solution. We certainly aren’t going to be able to send our agents across the border to arrest the rock throwers. Really, we have no way to stop it at all short of fighting back when it happens. As the article goes on to explain, that’s just what agents are doing, and they’re occasionally employing deadly force:

In the last five years, three Mexican teenagers have been shot dead by Border Patrol agents who, according to the agency, were under assault by rocks thrown over the fence. The Border Patrol deemed two shootings justified, but in the third case, an agent stands accused of second-degree murder.

The facts of that third case at first create quite a conundrum, as the shooting as well as the rock throwing that preceded it arose in the context of marijuana smuggling. On top of that, although the mother of the boy killed by the agent said he was just walking home from a basketball game with the ball tucked under his arm, U.S. authorities had a different story:

The Border Patrol says Jose was among a group of rock-throwers who sought to distract agents from the marijuana smugglers. Buenos Aires, the neighborhood that abuts the border, is rumored to be controlled by the drug cartels, and agents say the rock-throwing is a regular distraction tool used by smugglers.

I have to admit it’s a pretty good strategy for smugglers. After all, they just have to get a bunch of kids to toss rocks, and they’ve gotten themselves some cover. It’s a supportive air campaign being carried out by people against whom their opponents are probably not terribly eager to use force. And if the smuggling attempt doesn’t work out, I bet it’s all but impossible for agents to prove that the smugglers also coordinated the rock throwing.

I can imagine it’s infuriating for agents. No doubt many of them lose their temper. That certainly appears to be the case for the agent who shot Jose:

The Border Patrol would later report that its agents were under assault that October night. Swartz fired his pistol through the bars of the fence, which are approximately 3.5 inches apart. He fired an unknown number of times, reloaded and emptied his pistol again.

At least 10 rounds struck Jose. According to an autopsy conducted by the Sonoran State Medical Examiner and obtained by the Los Angeles Times, at least one of the bullets hit Jose in the front of his body, and the rest entered back-to-front, right-to-left. Most followed an upward trajectory, meaning they entered his body from a lower point and exited at a higher point.

At first, the trajectory of the bullets is confusing — since they were fired from the high embankment, it would appear the trajectory of the bullets should point to the ground.

But assuming the autopsy was properly conducted, according to Pima County Medical Examiner Greg Hess, the only explanation for the bullets’ upward trajectory was simple: Jose was falling or lying on the ground when he was struck.

Given those facts, it’s pretty clear why this particular situation might result in charges. Firing through a fence and unloading two magazines is obviously overkill, as I doubt the situation looked like a battle scene from a war movie. This wasn’t exactly a soldier under artillery fire shooting blindly toward enemy lines to neutralize a deadly threat.

Instead, it’s a law enforcement officer shooting into another country, one filled with law abiding citizens as well as maybe some rock throwers. Even if Jose had been throwing rocks to help some marijuana smugglers, Swartz’s use of force seems grossly disproportionate. That the physical evidence suggests Jose was mostly shot in the back while falling or lying down makes it far worse.

Eventually, Swartz was charged with second degree murder. It may be surprising that he got charged at all given authorities’ general disdain for charging their own, but a federal murder charge certainly seems like a fit. After all, it’s not tough to gather malice aforethought from the ugly facts, and the fact it happened within the special maritime and territorial jurisdiction of the United States seems present as well. A civil case by Jose’s family, on the other hand, is far more complicated:

In May, ACLU attorney Lee Gelernt stood in a federal courthouse in Tucson, trying to convince U.S. District Judge Raner Collins that Rodriguez had standing to sue Swartz.

Swartz deprived Jose of the most fundamental right, Gelernt said, “the right to not be killed,” a violation of the 4th Amendment. Swartz’s private attorney, Sean Chapman, argued that Swartz did not deprive Jose of his constitutional rights because, as a Mexican national standing on Mexican soil, Jose had no rights in the U.S.

It’s pretty depressing that the current state of the law is such that people are even arguing in front of a federal judge that someone shot by a U.S. agent standing on U.S. soil had no constitutional right not to be murdered because he was a Mexican in Mexico. Even more depressing is the fact that the Fifth Circuit previously thought that was fine because the plaintiff in the case they were considering hadn’t claimed being shot in the face by border patrol violated the victim’s Fourth Amendment rights, and his Fifth Amendment rights weren’t clearly established. Luckily, the judge in Jose’s family’s case eventually decided differently from the Fifth Circuit and will allow their civil case against Swartz to go ahead.

Looking at the contrast between Swartz’s criminal case, which will likely do nothing but punish him, versus Jose’s family’s civil case, which will at least compensate Jose’s innocent, grieving family for the awful death of their son at the hands of a U.S. government agent, it initially seems like there’s some inconsistency. The only case that provides some tangible benefit to the people harmed the most is the one filled with barriers, after all.

That begins to clear up, however, if you look at it more in terms of authority protecting authority. By charging Swartz, after all, the government is in control of making things right. The cost is one agent. By repaying Jose’s family, however, the government gains nothing. The expense is probably going to be substantial and consist of money, not just personnel.

As longs as kids are kids and people in Mexico have some reason to lash out against the United States Border Patrol, I expect rock throwing is going to be a problem. I doubt the various killings by agents are going to make much of a difference in stopping it. I also doubt the criminal and civil cases against Swartz are going to dissuade other agents from using force in response. After all, the only other option would be to do nothing. The best we can probably hope for is that the Ninth Circuit and eventually the Supreme Court of the United States disagree with the Fifth Circuit so the worst cases, ones like what happened to poor Jose, result in something resembling justice both criminally and civilly.

2 Comments on this post.

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  • MoButterMoBetta
    16 December 2015 at 11:54 pm - Reply

    “… when rocks hit their targets, they opened gashes on agents’ heads…”

    So, helmets maybe?

    And if this is a known distraction for drug smugglers, why are the Border Patrol agents taking the bait?

  • Eva
    17 December 2015 at 10:55 am - Reply

    Where does the Mexican govt. stand on all this? Do they participate or work with our country to locate the apparent rock throwing perpetrators? Is shooting at their citizens for alledged bad behavior whilst they are standing on Mexican soil an agreed upon action between our govts? Does the Mexican govt. shoot at us if any of our kids or anybody else who decides they want to start their day by throwing rocks into their country?
    (Prior to enjoying your site I visited Popehat (Mr. White & friends) and I believe it has influenced me, pardon moi— ;^) )