The civil case, hearings for which are slated for later this year, is pending in the 9th Circuit Court of Appeals after the state appealed a local ruling that found Elena Rodriguez’s family had legal standing to pursue their case. Luis Parra, the attorney for the mother of Jose Antonio Elena Rodriguez, told The Associated Press that a federal grand jury on Wednesday, September 23, 2015, indicted agent Lonnie Swartz.
Shawn Moran is with the National Border Patrol Council.
Araceli Rodriguez was the mother of Jose Antonio Elena Rodriguez, pictured, who was shot and killed by a U.S. Border Patrol agent in October 2012..
A union representing Border Patrol agents across the U.S. West spoke out against the charges on Thursday in a post on the union website.
Border Patrol has said agents swarmed the fenced area in response to reports of drug smuggling.
Only two other agents have been charged with murder in killings of immigrants.
Michael Elmer was charged with second-degree murder but acquitted after the 1992 shooting of Dario Miranda Valenzuela.
The Border Patrol has said that Elena Rodriguez was among a group of rock-throwers endangering agents’ lives. Witnesses of the shooting say Elena Rodriguez was walking home on the Sonora side of the fence, when he was struck by at least eight bullets from the Arizona side.
Sean Chapman, Swartz’s attorney, did not respond to a late call seeking comment.
The Border Patrol Union on Thursday criticized the indictment. “But our jobs are unsafe and the decisions we make every day determine if we will return home safely to our families”.
An autopsy report showed he was shot around 10 times, mostly in the back.
“The possibility that the legality of the official’s actions could be questioned in a trial improves the building of the community’s confidence in migratory control agents and in the justice system of that country”, the statement said.
The case happened amid criticism that the Border Patrol uses force indiscriminately, a charge the agency has denied. At the behest of concerned members of Congress, the Office of Inspector General is already reviewing border agencies’ use-of-force guidelines in connection with a different incident.
Mr. Chapman tried to get the criminal lawsuit dismissed on the grounds that the US Constitution doesn’t apply to Mexican citizens, as Jose was in Mexico at the time of the shooting, but a federal judge ruled in July 2014 that the lawsuit can proceed.