Originally Published: March 27, 2017 6 a.m.
PHOENIX — A federal judge has rejected claims by a Border Patrol agent that he can’t be tried on murder charges in his court.
Judge Raner Collins said the evidence shows that Lonnie Swartz was standing within the 60-foot zone adjacent to the international border when he shot 16-year-old Jose Antonio Elena Rodriguez who was in Mexico.
More to the point, Collins said he reads the law to say that zone is part of what he is known as the “Roosevelt Reservation,” an area first claimed by the federal government in 1897. And that, the judge said, means that Swartz, who now is on administrative leave, was standing on federal property when he fired the shot across the border that killed Rodriguez.
The ruling, unless overturned, clears the way for the criminal case against Swartz to proceed.
But Collins, in a separate ruling, blocked federal prosecutors from using at trial some statements Swartz made to a supervisor immediately following the shooting.
The judge said Swartz clearly believed he was compelled to make those statements because of Border Patrol policy. And Collins said such “compelled, coerced and involuntary” statements are inadmissible.
He is facing a separate civil lawsuit, also in federal court, filed by the mother of the victim. But that case remains on hold until an appellate court decides whether it has jurisdiction in that case.
There apparently is no dispute that Swartz fired the shots, 10 of which an autopsy showed entered from the back. Swartz contends the boy was throwing rocks across the border, a contention his family denies.
What is in dispute is whether Swartz can face criminal charges in federal court.
Swartz’s attorney, Sean Chapman, said his client was “standing within the state of Arizona and Santa Cruz County when he discharged his firearm.” That, Chapman argued, means Collins has no jurisdiction to hear the murder charges.
“There is no indication that the alleged crime was committed on federal land,” Chapman argued.
Collins, however, did not see it that way.
He said the evidence shows the federal government claimed a 60-foot stretch of land all along the international border. And Collins rejected Chapman’s claim that federal reservation disappeared after Arizona became a state in 1912.
“Even if Arizona has not, in its enabling act, disclaimed all right and title to the lands at issue in thsi motion, this court would still be satisfied that the Roosevelt Reservation maintained its character after Arizona was admitted as a state of the union,” the judge wrote.
And there’s something else.
“In the United States, the Constitution permits the state and federal governments to exercise concurrent jurisdiction without undue influence,” Collins wrote. Anyway, he said, “the state of Arizona has not protested this court’s assertion of jurisdiction over this matter.”
The statements at issue were made by Swartz to supervisor Leo Cruz Mendez.
They included, “They were throwing rocks,” “They hit the dog,” and “I shot and there’s someone dead in Mexico.”
Collins said Swartz clearly believed he “would be exposed to discipline up to and including removal” if he did not answer the questions.
“The threatened penalty was, therefore, both sufficiently coercive and more than merely hypothetical,” the judge concluded. And Collins said that the government, in its questioning, acted as his employer and cannot now use the same statements in its role as prosecutor.
The rulings, released Friday, do not resolve the separate question of whether the youth’s mother can sue Swartz civilly in federal court.
In October the 9th U.S. Circuit Court of Appeals heard arguments about whether she had standing to sue in federal court because her son was not in the United States at the time of the 2012 event.
The appellate justices have not yet ruled, waiting to see what the U.S. Supreme Court decides in a similar case out of Texas.
During arguments, Chapman pointed out that the boy was shot and died in Mexico. And he argued that any ties the boy had to relatives in the United States were not enough to extend to him the protections of the U.S. Constitution.
But Lee Gelernt of the American Civil Liberties Union told the judges that’s legally irrelevant.
“We don’t think that you need to want to live in the U.S. to not be shot across the border,” he said.
Potentially more significant, Gelernt warned the three-judge panel it would set a bad precedent to allow Swartz — and anyone else who fires shots across the border — to escape civil liability.
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