From [HERE] An Arizona jury on Wednesday acquitted a United States Border Patrol agent of involuntary manslaughter in the killing of a Mexican teen through a border fence, sparking a protest in downtown Tucson following another loss for federal prosecutors in the second trial over the 2012 killing.
Jurors in Tucson found Lonnie Swartz not guilty of involuntary manslaughter but didn't come to a decision on voluntary manslaughter. The verdict comes months after Swartz was acquitted of second-degree murder by another jury that had deadlocked on manslaughter charges, allowing prosecutors to pursue the case again.
Border Patrol agents are rarely criminally charged for using force. But the killing of 16-year-old Jose Antonio Elena Rodriguez sparked outrage on both sides of the border and it came at a time when the agency was increasingly scrutinised for its use of force.
An amicus brief by Human Rights Watch argued that the senseless murder was also a violation of international law. It stated,
International human rights norms stipulate that law enforcement officers should refrain from using of force unless necessary, and that lethal force should only be used as a matter of last resort. The U.N. Code of Conduct for Law Enforcement Officials (hereinafter “Code of Conduct”) states that the use of force by law enforcement officials should be limited to situations where it is “strictly necessary and . . . required for the performance of their duty.” G.A. Res. 34/169, art. 3, U.N. Doc. A/34/46 (Dec. 17, 1979); see also Restatement § 702 cmt. f (International law requires “the avoidance of any lethal use of force by law enforcement except in defense of themselves or other innocent persons, or to prevent serious crime.”); Amnesty International, Deadly Force: Police Use of Lethal Force in the United States 13 (June 2015) (hereinafter “Amnesty Report”), http://www.amnestyusa.org/sites/default/files/aiusa_deadl...(Officials should not use force unless “there are no other means available that are likely to achieve a legitimate objective.”).
Given the likelihood of serious injury resulting from firearm use, “[a]ll uses of firearms against people should be treated as lethal or potentially lethal.” Heyns Report ¶ 70 (citing G.A. Res. 45/166, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, princ. 9 (Dec. 18, 1990) (“hereinafter “Basic Principles”)). Principle 9 of the Basic Principles restricts law enforcement officials from using “firearms against persons except in self-defen[s]e or defen[s]e of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives.” Basic Principles, princ. 9; see also id. at princ. 4 (“[L]aw enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.”). The Basic Principles further restrict law enforcement officials from the “intentional lethal use of firearms” except “when strictly unavoidable in order to protect life.” Id. at princ. 9.
“Necessity in the context of lethal force has been said to have three components . . . .” Heyns Report ¶ 59. “Qualitative necessity means that the use of potentially lethal force . . . is not avoidable to achieve the objective”; “[q]uantitative necessity means the amount of force used does not exceed that which is required”; and “[t]emporal necessity means the use of force must be used against a person who presents an immediate threat.” Id. ¶ 60 (emphasis added).
Under the facts alleged by the plaintiff, Agent Swartz’s use of force against J.A. was not necessary. J.A. was an unarmed child walking down a public street. See ER 52 ¶ 2. J.A. posed no threat to Agent Swartz, much less an unavoidable, lethal, and imminent one. Thus, even if Agent Swartz had a legitimate objective in restraining J.A., that objective could have been met in a nonviolent manner—and certainly a nonlethal one. Furthermore, Agent Swartz fired numerous shots—reportedly between 14 and 30—at least ten of which struck J.A. See ER 53-54 ¶¶ 10-12. The firing of so many shots in an urban environment like Nogales is reckless, at best, and indicates an intentional use of lethal force. By failing to avoid unnecessary violence, Agent Swartz violated the international standards on the use of force and firearms for law enforcement. [MORE]
Outside the court on Wednesday, a small group of activists protested the verdict, and one man was detained, local media outlets reported.
The protest grew later in the day as scores of demonstrators shut down an intersection, snarling traffic in downtown and prompting authorities to briefly close several freeway ramps.
A spokeswoman for the US attorney's office said prosecutors haven't decided whether to try Swartz again on the voluntary manslaughter charge.
"We fully respect the jury's decision, and we thank every member of the jury for the time and attention given to this trial," Elizabeth A Strange, first assistant US attorney for the District of Arizona, said in a statement.
During the trial, prosecutors said Swartz was frustrated over repeated encounters with people on the Mexico side of the border fence who throw rocks at agents to distract them from smugglers. They say he lost his cool and fatally shot Elena Rodriguez. Swartz fired about 16 rounds, and the teen was hit at least 10 times in the back and head.
Swartz had then said he was following his training and defending himself and other law enforcement officers from rocks, which he said could be deadly.
Prosecutors acknowledge that Elena Rodriguez was throwing rocks at agents while two smugglers made their way back to Mexico, but they said that wasn't justification for taking his life. Members of Elena Rodriguez's family maintain he wasn't throwing rocks and was killed while walking home.
Speaking to Al Jazeera earlier this year, Elena Rodriguez's grandmother Taide questioned how officials would have reacted had it happened the other way around. "What if a Mexican official had fired into the US, killing a US citizen. This would have been an international crisis," she said.
On Thursday, Taide expressed disappointment in the verdict, saying that the possibility for getting justice now seems small.
"We will keep on waiting and like before we will hope to see a miracle happen," she told Al Jazeera by phone after the Wednesday's verdict. "But that is what it will be: a miracle. That's what we always hoped for."
Swartz still faces a civil rights lawsuit from the American Civil Liberties Union on behalf of the teen's mother.