Part III
14.
JUST AFTER 11:00 P.M. ON WEDNESDAY, OCTOBER 10, 2012, José Antonio Elena Rodríguez finished a game of basketball at a church near his house in Nogales, Sonora, Mexico.1 After saying goodbye to his friends, the sixteen-year-old walked to a convenience store on Calle International, where his brother Diego worked, to grab a snack before heading home for the night. He lived a couple of blocks away.
Calle International runs along the border wall that divides the Mexican city from its smaller American counterpart, also named Nogales. The dual cities, often referred to as Ambos Nogales, “both Nogales,” have an official combined population of 270,000 people, with 250,000 of those living on the Mexican side. Crossing between the cities used to be easy and common, but new security measures after the terrorist attacks of September 11, 2001, dramatically lengthened queues at the border. In the years that followed, the two cities started to seem less like a cohesive whole. In 2011, a shorter wall between the two downtown areas was replaced with a taller and more secure bollard-style barrier. Border Patrol agents prefer this kind of construction because the gaps between the bollards allow them to monitor activity on the other side. The design is relatively easy to climb, but in the downtown area of Ambos Nogales, the wall also had solid plates at the top meant to keep people from making it over. Nevertheless, people still do every day.
A few minutes before José Antonio turned the corner onto Calle International, the Nogales (Arizona) Police Department received a call about suspicious activity on International Street, the road that runs parallel to Calle International but on the U.S. side. Quinardo Garcia, a Nogales (Arizona) police officer, arrived on the scene and saw two men carrying bundles that he suspected were marijuana. He called for backup as he watched the men run into a dark yard on the U.S. side. The dispatcher called additional police officers as well as the Border Patrol. Within a few minutes, several Nogales police officers, in black uniforms with gold patches on their shoulders, and Border Patrol agents, in forest green uniforms accented by yellow badges on their chests, arrived on the scene.
Garcia and the other officers and agents spotted the two men again farther west, where the border wall and International Street climb up a hill. The men had ditched the large bundles and had apparently decided to return to Mexico. They were still on the U.S. side of the wall but were quickly scaling it to make their escape. The Nogales police officers and Border Patrol agents instructed the two men to climb back down. (For safety reasons, the agents do not try to climb the wall themselves.)
As they watched the two men climb and continued to speak with them, the police officers and Border Patrol agents heard what they thought were rocks land on the ground around them, apparently coming from the Mexican side. According to the Border Patrol’s use of force guidelines, rocks are among the projectiles considered life-threatening to agents and can be countered with deadly force. The officers and agents on the scene did not initially respond with force, instead looking for cover and trying to figure out where the rocks were coming from.
José Antonio, the sixteen-year-old basketball player, walked onto Calle International at this moment and was likely startled by the commotion. Red and blue lights from the Border Patrol and police cars refracted through the gaps in the wall. Although the border wall and the road went up the hill on the U.S. side, on the Mexican side, Calle International did not. From where José Antonio was standing, there was a twenty-five-foot rock face and then the twenty-foot-high wall on top of it. José Antonio was on the sidewalk on the far side of the street, another twenty-five feet away from the border itself. He was in front of a single-story building with faded yellow paint, chipped and peeling, as he listened to the agents yelling at the two men.
Suddenly, gunshots rang out. José Antonio turned to run, but ten bullets pierced his body. He died on the spot.
On the U.S. side, there was shock and confusion over what had just occurred. Officer Garcia and the Border Patrol agents on the scene had been scrambling to take cover from the rocks when another Border Patrol truck pulled up. Agent Lonnie Swartz, with a red crewcut and mustache, jumped out of the vehicle. Without consulting the officers and agents on the scene, Swartz ran to the border wall and peered through a gap in the bollards. Then he pulled out his gun and fired all twelve rounds in the magazine into Mexico.
The violence that took José Antonio’s life was perpetrated by a Border Patrol that in 2012 had changed substantially from the one that existed in the 1970s, when Lewis Powell and the other Supreme Court justices were deciding how much authority to give the agents. In 1975, there were only 1,500 Border Patrol agents, but by 2012, there were 21,394. Additionally, the agency had a wide array of new technologies to facilitate their work that would have been unimaginable in 1976. Nevertheless, despite the huge increase in agents and budget, apprehensions in the border zone had declined. In 1976 alone, 696,939 people were apprehended by the Border Patrol; in 2012, it was only 364,078. The counterintuitive decline in apprehensions occurred because fewer people made the trip. Those who were already in the United States, who in past decades might have traveled back and forth to visit family, largely opted to remain in the United States to avoid the increasingly dangerous and fraught journey.
The changes in the size and the approach of the Border Patrol had occurred in two phases, the first in the mid-1990s in response to political pressure after the NAFTA agreement, and the second in the mid-2000s after September 11 brought the border into debates about homeland security.2 Both of these periods of change resulted in rapid hiring of new agents and contributed to the culture of violence that tolerated agents like Lonnie Swartz.
Prevention through Deterrence
Starting in the late 1980s, the southern border saw an increase of drug smuggling due to a shutdown of routes through the Caribbean, ones previously favored by Pablo Escobar and the Colombian cartels. They had to shift their distribution networks to Mexico, and in response, the Border Patrol took on a drug interdiction role that was not previously part of their mandate. While most migrants were not dangerous, drug smugglers presented a different type of threat.3
At the same time, the presence of undocumented Mexicans became a political issue in California and across the United States. An article in The New York Times in August 1993 explained the change. The article began, “Rich and poor, legally or not, they came to Southern California by the millions over the last decade, foreigners in search of a better life or political refuge. The immigrants were mostly welcome at first.” It continues, “But today the welcome has worn out. Immigrants are now widely perceived as an economic drag on taxpayers, sucking up health, school, police and other services while spreading crime, dirt and disease. With its economy struggling through the worst slump since the Great Depression, its cities battered, its government services breaking down, California, and particularly Southern California, has begun to say ‘no’ to more immigrants.” A Republican politician is quoted as saying, “Illegal immigration is the hottest issue in the state. We’ve got to say to the Federal Government, ‘if you don’t close the border, we will.’”4
The anti-immigrant sentiment in California meant that the Border Patrol once again felt the pressure of political attention being paid to its work, just as it had before Operation Wetback in 1954, the last major crackdown at the border. Since the Border Patrol was established, it operated based on the assumption that there were not enough agents or resources to patrol the border line itself. Instead, the agency focused its attention on the border zone, using trails, roads, and chokepoints to locate people after they crossed the border but before they could blend into the U.S. population. This was the logic behind the roving patrols and interior checkpoints that the Supreme Court approved in the Border Patrol cases in the 1970s.
In the early 1990s, the Border Patrol needed to take action to placate angry politicians in California, so it tested a different strategy. The Border Patrol still recognized that it could not completely control the border. Instead, it decided to close down the easier-to-cross locations in order to deter people from attempting the journey. This “prevention through deterrence” strategy posited that if crossing the border became more difficult and dangerous, fewer people would try it.
The 1994 Border Patrol Strategic Plan described the anticipated impact of prevention through deterrence. “The prediction is that with traditional entry and smuggling routes disrupted, illegal traffic will be deterred, or forced over more hostile terrain, less suited for crossing and more suited for enforcement.”5 The Border Patrol’s own prediction was that their policy of blocking easier migration routes would result in more deaths in the hostile terrain of remote deserts that comprised the border zone.
The prevention through deterrence strategy was tested in 1993–94 through several operations: Hold-the-Line in El Paso, Gatekeeper in San Diego, and Safeguard in Nogales. In these cities, the Border Patrol built short sections of wall in the urban areas and then posted a large deployment of agents directly on the line itself in a show of force.6 In the areas where the operations were carried out, border crossings dropped substantially. However, none of the operations seemed to have an impact on total crossings in the sector. Smugglers and migrants simply moved to more rural and remote areas to cross. Nevertheless, the Border Patrol trumpeted the operations as successes, which they argued demonstrated that if they had more agents and resources, they could control the border.7
Over the rest of the 1990s, the prevention through deterrence strategy played out in the border zone. Congress increased the Border Patrol’s budget and the agency doubled in size, from 4,287 agents in 1994 to 9,212 in 2000. Migration did not stop but was diverted to ever more remote locations. Additionally, cartels and smugglers became more dominant in the border zone, which the Border Patrol included as an indicator of the success of prevention through deterrence. Whereas in the early 1980s anyone could sneak across the border relatively easily, after the expansion of the Border Patrol, the cartel-controlled smuggling routes became the primary option for migrants headed to the United States. The new strategy also resulted in a humanitarian crisis and a sharp rise in migrant deaths as people were forced to cross through the parched deserts of Arizona. A decade into the new policy, morgues in southern Arizona documented a tenfold increase in deaths in the remote and dangerous deserts of the region.
The Department of Homeland Security
Even as the Border Patrol doubled in size from 1994 to 2000, it was poised for more growth in the first decade of the twenty-first century. The shock of 9/11 resulted in a broad reconsideration of how the United States conducted security inside its borders, leading to the creation of the Department of Homeland Security in 2003 to consolidate internal security operations. The sprawling department includes a wide array of agencies involved in different aspects of security, including the Coast Guard, the Federal Emergency Management Agency, and the Transportation Security Administration.
DHS also became the home to all the border, customs, naturalization, and immigration-related agencies. Immigration and Customs Enforcement (ICE) was established to arrest and deport people suspected of immigration violations in the interior of the United States. Citizenship and Immigration Services (USCIS) became the agency that handled citizenship tests and green card applications. The Border Patrol and the Customs Bureau were combined into a new agency, Customs and Border Protection (CBP). The Border Patrol, in their green uniforms, patrols between crossing points. Customs was renamed the Office of Field Operations; its agents, in blue uniforms, work at crossing points and in airports. Agents of a third unit of CBP, Air and Marine Operations (AMO), wear brown uniforms and manage the agency’s aircraft and ships. AMO’s authorization in the U.S. code differs from the Border Patrol in that it does not include any geographical limits, so they are able to operate anywhere in the country.8
For the first time, all the federal agents involved in border protection were in the same department of the U.S. government. The idea of this consolidation was first proposed all the way back in 1930 by Undersecretary of the Treasury Ogden Mills in the hopes of reining in what he saw as inappropriate actions of Border Patrol agents. When this consolidation finally happened, there was no discussion of reining in the Border Patrol. Instead, they were unleashed as the front line against terrorist infiltrations into the country.
The 2020 budget for DHS is over 51 billion dollars. The huge appropriations for national security allowed the agencies in DHS, such as the Border Patrol, to hire thousands of additional agents and purchase the latest military and surveillance gear developed for the wars in Afghanistan and Iraq. This has included the construction of a substantial tactical infrastructure, including over 700 miles of border wall, a network of cameras and sensors, and new buildings and holding facilities at permanent checkpoints along the Mexican border. To a lesser extent, the Border Patrol also constructed new facilities and deployed more agents to other areas, including to South Florida and the Gulf Coast, and along the Canadian border.
Terrorism prevention became the priority. The rebranding was based on the recognition of new vulnerabilities, but was also calculated, because framing the agency through the lens of national security was a sure path to increased appropriations.
Although the vast majority of the Border Patrol’s work has remained the same as in previous eras, that fact is often not evident from the Border Patrol’s website or promotional materials. For example, the Border Patrol’s Official Ethos is all about terrorism and does not mention immigration at all:
We are the guardians of our Nation’s borders.
We are America’s frontline.
We safeguard the American homeland at and beyond our borders.
We protect the American people against terrorists and the instruments of terror.
We steadfastly enforce the laws of the United States while fostering our Nation’s economic security through lawful international trade and travel.
We serve the American people with vigilance, integrity, and professionalism.9
The focus on terrorism changed the mentality of the agents in the field. Rather than thinking of themselves as primarily a policing organization, the agency shifted to treating everyone they encountered as a potential terrorist threat.
A segment on the National Geographic television show Border Wars, which for five seasons followed Border Patrol agents on duty, illustrates how the terrorism focus changed daily interactions. In an episode that aired in 2010, Border Patrol Agent Pittman gets a call that a sensor was set off on a remote road near Nogales. Pittman and two other agents on ATVs quickly locate two fifty- to sixty-year-old men of apparently Mexican ancestry, walking on the dirt road. The men are wearing nice, clean clothing and carry themselves in a dignified manner. Despite their appearance, Agent Pittman carefully searches and interrogates them. First, he inquires if they have weapons or drugs. They respond, “No.” Then he asks if they are terrorists. Again, “No.”
Agent Pittman explained his concerns, “They look like unarmed immigrants but the rule is never assume. It’s dangerous—anything that can be made into a weapon like toothbrushes, combs, and pens, we’ll take. Lighters, perfumes, that’s flammable. We don’t know who we are dealing with. They may be just looking for an opportunity to do something to harm you. We don’t know their history, their criminal records, until they get processed. You’d be surprised; we can’t relax on these individuals because a lot of them do have criminal records.”10
Although the Border Patrol describes itself as a front line against dangerous terrorists, being a Border Patrol agent is much less dangerous than other law enforcement jobs. Since 2003, the majority of on-duty agent deaths are due to medical emergencies or car crashes. In that period, only three agents were killed in violence perpetrated against them while on duty. The agency’s data shows that Border Patrol agents face fewer assaults than regular police officers or even National Park Service police.11
An investigation by The Intercept found that even the low rate of reported assaults against Border Patrol agents are likely based on inflated statistics. In one instance in 2017, seven agents were assaulted by six men using rocks, bottles, and tree branches. Rather than recording the event as seven instances of assault, the Border Patrol data included 126 assaults from that single incident. They reached that inflated figure by multiplying seven agents by six men by three types of weapons.12
Despite the relative safety of the job, the Border Patrol has a culture of violence and abuse that mirrors the behavior of the early agents who cut their teeth in frontier law enforcement. Police brutality in the United States has become a major issue in part due to the ubiquity of camera phones that allow civilians to record the actions of police that would have previously remained hidden. By contrast, the Border Patrol operates in remote and sparsely populated areas where there are no witnesses to their actions, which leads to abuse. In August 2021, the Border Patrol decided for the first time to require some agents to wear body cameras.13
A 2013 survey found that 11 percent of migrants said they were assaulted by agents during or after their apprehension. The majority of these alleged assaults are not formally reported. Filing an abuse report is a daunting process for most migrants because many never interact with anyone other than the agents that abused them. Additionally, until 2015, complaints had to be filed in English, an insurmountable barrier for many poor migrant workers. The American Immigration Council reviewed all the complaints that were actually filed against Border Patrol agents from 2009 to 2015, during the Obama administration. The report documented accusations of agents committing sexual assault in detention facilities, running over people with ATVs, and beating people with the butts of their rifles. The researchers found that no action was taken against the accused agent in over 95 percent of abuse reports.14
A Deadly Weapon
The killing of sixteen-year-old José Antonio Elena Rodríguez on Calle International in Nogales was one of the few cases in which action was taken against the agent. The other police officers and Border Patrol agents on scene had reported rock throwing prior to the shooting, which at the time was a justifiable reason for an agent to use deadly force if they thought their life was in danger. However, investigators thought it was very unlikely that José Antonio was throwing rocks. He was standing at least twenty-five feet from the border line. Below the twenty-five-foot cliff and the twenty-foot wall on top of it, he would have had to throw a rock over fifty feet up in the air to even get it to the U.S. side. It was a difficult if not impossible throw. A Border Patrol official who investigated the scene concluded he could not have done it “even if he were a major-league baseball pitcher.”15 Furthermore, José Antonio was not involved in the smuggling attempt; he was playing basketball at a church. After the coroner’s report found that all but two of the bullets hit him in the back, it was evident that José Antonio was running away from the scene.
Despite all the evidence, it still took three years for charges to be brought against the agent. In September 2015, Lonnie Swartz was indicted by a grand jury in Tucson for second-degree murder. It was the first time a Border Patrol agent was prosecuted for an on-duty killing in the history of the agency.
The reason so few Border Patrol killings were prosecuted was the broad use of force guidelines. The killing of José Antonio, along with several other similar shootings, put pressure on the Border Patrol to analyze its procedures. The agency commissioned an independent study of its use of force by the Police Executive Research Forum, a group composed of police chiefs from around the United States.16 When the report was finished, the Border Patrol did not release it publicly until it was leaked to the press a year later.
The findings suggested many problems, including the frequent use of deadly force in response to rock throwing. From January 2010 to October 2012, there were twenty-nine instances of agents firing their weapons in response to rocks.17 The report also identified numerous instances of agents shooting at vehicles that did not pose a threat. The report found that in some cases, agents had intentionally stepped in front of the vehicles in order to produce a justification to fire.
The Police Executive Research Forum report concluded that agents should be prohibited from firing their weapons against rock throwers or vehicles unless the agent’s life was in serious jeopardy. Throwing rocks from a distance or a vehicle attempting to escape did not justify the agent discharging their weapon. The report recommended training in rock-throwing scenarios to “emphasize pre-deployment strategies, the use of cover and concealment, maintaining safe distances, equipping vehicles and boats with protective cages and/or screening, de-escalation strategies, and where reasonable the use of less-lethal devices.” After this very critical report, the Border Patrol revised its use of force guidelines in 2014. However, the new guidelines still include rocks as a deadly weapon that could be used to justify deadly use of force in response.
The killing of José Antonio occurred when the previous looser regulations were in effect. The case against Agent Swartz was heard twice in 2018. In both instances, the juries reported that they were initially deadlocked but eventually delivered not guilty verdicts on two different charges. The second jury remained deadlocked on a voluntary manslaughter charge, but the U.S. Attorney declined to bring a third prosecution.18 While the actions of Agent Swartz were violent and aggressive, the juries decided that they were justifiable under the Border Patrol’s use of force regulations at the time.
José Antonio’s family filed a civil suit seeking damages from Agent Swartz, a tactic that many of the families of the other victims of Border Patrol shootings were attempting. In 2020, one of the other cross-border killing cases made it all the way to the Supreme Court. Fifteen-year-old Sergio Hernández Guereca was killed by a Border Patrol agent in 2011 in El Paso in another cross-border rock-throwing incident. The court ruled 5–4 that claims against federal agents could not be made if the killing did not happen on American soil.19
The result is a Catch-22 for victims of cross-border shootings. If the agent was in Mexico, they could be charged in Mexican courts. If the victim was in the United States, they could sue in American courts. However, if the Border Patrol agent is in the United States and the victim in Mexico, there is no recourse.
In some respects, today’s Border Patrol, with tens of thousands of agents using sophisticated military technologies, looks completely different from the early twentieth-century Border Patrol, which was tiny and underfunded. However, in other respects, nothing has really changed. Just as there were no consequences in 2012 for Border Patrol Agent Lonnie Swartz shooting across the border into Mexico and killing a teenager, in the 1920s there were no consequences for Agent Jack Cottingham, who went to the Rio Grande and randomly killed anyone he spotted on the Mexican side in retaliation for a smuggler injuring his brother. In the past decade, there have been at least six fatal cross-border shootings by the Border Patrol, none of which has resulted in legal consequences for the agents involved.20
The vast majority of deaths in the border zone, however, are not directly at the hands of Border Patrol agents, but rather are caused by their presence in the border zone. As easier migration routes through urban corridors like Tijuana–San Diego and Ciudad Juárez–El Paso were closed, most migrants were forced to rely on smuggling operations run by cartels. These routes often involve arduous days-long treks through the hot and dry deserts of the Southwest, a journey that has been deadly for untold thousands of people.