Name of border agent who shot teen released by judge

TUCSON, Ariz. — More than two years after an unarmed Mexican teenager was killed by a Border Patrol agent who fired through the fence in Nogales, Ariz., a U.S. District Court judge Thursday ordered that the name of the agent, Lonnie Swartz, be released to the public.

Judge Raner Collins also ordered that previously sealed court papers filed by the agent's attorney be revealed, saying the public had a right to know.

The boy's family is suing the agent in the shooting death. The Arizona Republic intervened Thursday in the suit to have the sealed information made public.

Collins' order stated that although Swartz's concerns about possibly being embarrassed or harassed "are valid, these do not rise to the level of overcoming the strong presumption in favor of public access."

However, the judge also ordered the parties in the case not to disclose where Swartz lives or works or other personal information.

Collins previously allowed most of the motions and information filed by the agent's attorney to be sealed temporarily while he considered a request to let Swartz be sued under a pseudonym.

U.S. Customs and Border Protection and Sean Chapman, the private attorney representing Swartz, have sought to keep his name secret since he shot and killed 16-year-old Jose Antonio Elena Rodriguez two years ago, firing through the border fence into Mexico from Nogales, on Oct. 10, 2012.

Since that night, the Border Patrol has declined to identify Swartz or release additional information about the shooting, citing an ongoing FBI investigation. According to a motion filed by Chapman, unsealed Thursday, the FBI is awaiting documents from Mexican authorities, and Swartz "remains at risk of criminal prosecution by the federal government."

If so, Swartz would be the first agent to be prosecuted by federal authorities for killing someone in the line of duty since at least 2004. As The Republic has reported, in 48 cases since 2005 in which agents have killed people in the line of duty, none has been disciplined or prosecuted.

Attorneys for Araceli Rodriguez, Elena Rodriguez's mother, filed a civil suit in July against Border Patrol agents involved in the death, alleging that one or more "John Does," as their complaint then termed the agents involved, had used "unreasonable and excessive force," violating the boy's Fourth and Fifth amendment rights.

In court Thursday, Chapman said that "we agree that the public has a right to know what's going on in this case," but he argued that there was no need to release the name of the agent, whom he said had no previous record of violence or disciplinary concerns.

"I'm worried about the safety of my client; it could subject him to ridicule, to possible threats," Chapman said. He said that two agents identified in other shooting deaths, Jesus Meza Jr. and Arturo Lorenzo, had faced harassment and threats after their identities were released.

But Christopher Moeser, representing The Republic, said Chapman had flipped the legal burden.

The agent, Moeser said, "bears the burden of establishing compelling reasons for closure, supported by specific factual findings" such as a specific threat or harm.

Similarly, Lee Gelernt, an attorney for the American Civil Liberties Union who is helping represent Araceli Rodriguez, said he could not find a single example of a law-enforcement officer's name being withheld in a court proceeding.

"You would have to have specific, concrete evidence of real, serious harm before you could even entertain this notion," Gelernt said. "The public has an enormous interest in what goes on at the border. The public will want to know if he's been disciplined, if he committed a crime, if other parties may have information and come forward."

Gelernt and attorney Luis Parra argued that the public has a strong, legitimate interest in the identity of officers because of their authority to use deadly force and deprive people of their rights. Gelernt noted that police departments around the country routinely voluntarily disclose the names of officers involved in shootings, even in circumstances where there are ongoing and potentially violent protests.

The CBP denied Freedom of Information Act requests from The Republic for the identities of agents involved in the shooting and for video from surveillance cameras, mounted on towers about 150 feet from where the boy was shot, that presumably would have recorded the incident.

Nogales police and Border Patrol agents had responded to a 911 call on Oct. 10, 2012, reporting two suspected drug smugglers carrying bundles over the fence from Mexico. As agents and officers searched a neighborhood along the fence, two men dashed out and began climbing back over the fence into Mexico.

The Border Patrol said that Swartz (not identified in their statement) fired in response to rocks thrown over the fence as agents and police officers tried to stop the two men. Two witnesses on the Mexican side of the fence said that Elena Rodriguez, however, was walking down the street when other youths ran past just before the shooting started. The boy was shot 10 times in the back and head.

Chapman, Swartz's attorney, could not immediately be reached for comment after Collins' ruling.