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Government drops homicide case against border patrol agent

 In this March 21, 2018, file photo, Border Patrol agent Lonnie Swartz, left, arrives at U.S. District Court in downtown Tucson, Ariz., where opening arguments began in his murder trial in Tucson. Swartz will face a second trial Tuesday, Oct. 23, 2018, in the killing of a 16-year-old Mexican teen across the international border. Swartz was acquitted of second-degree murder in Tucson earlier in the year and now will be tried on voluntary and involuntary manslaughter charges. (Ron Medvescek/Arizona Daily Star via AP, File)

In this March 21, 2018, file photo, Border Patrol agent Lonnie Swartz, left, arrives at U.S. District Court in downtown Tucson, Ariz. (Ron Medvescek/Arizona Daily Star via AP, File)

The federal government has given up on its last chance of trying to convict a Border Patrol agent for the 2012 shooting and killing a teen by firing through the border fence.

In a new court filing Thursday, Assistant U.S. Attorney Wallace Kleindienst conceded that when jurors found Lonnie Swartz innocent of involuntary manslaughter last month they effectively precluded a new trial on the more serious charge of voluntary manslaughter.

Jurors did not reach a verdict on that charge. And U.S. District Court Judge Raner Collins had scheduled a hearing for next week after Kleindienst initially argued that failure means the opportunity for yet a third trial.

By Thursday, however, Kleindienst agreed with Swartz’s attorneys that trying him on the voluntary manslaughter charge would amount to unconstitutional double jeopardy given the jury’s verdict on the involuntary manslaughter charge, a charge that requires even less proof by prosecutors to get a conviction.

Defense attorney Sean Chapman said the decision by the prosecutors is welcome news for his client.

“He’s just very relieved,” Chapman said.

“He’s been carrying this burden, this case, hanging over his head for six years now,” he continued. “It’s caused his life to basically come to a standstill and he’s looking forward to moving on with his life.”

But Chapman said he could not say whether Swartz, who is on administrative leave, would seek to return to the Border Patrol.

While the criminal case is now behind him, Swartz’s legal problems are still not over.

Araceli Rodriguez, the mother of 16-year-old Jose Antonio Elena Rodriguez, who Swartz admittedly shot and killed, is pursuing what amounts to a wrongful death claim against the agent. But whether she gets a chance will depend on what the U.S. Supreme Court is expected to decide sometime next year.

The basic facts surrounding both the criminal and civil cases are the same.

Swartz fired his service revolver multiple times at Elena Rodriguez through the border fence in Nogales. An autopsy conducted in Mexico concluded he was hit 10 times in the back.

That resulted in criminal charges of second degree murder and voluntary and involuntary manslaughter.

Swartz argued that the shooting was self-defense, saying Elena Rodriguez was throwing rocks at him and saying he likely was involved in drug smuggling, both contentions disputed by the teen’s family.

In the first trial a jury found him innocent of the murder charges but deadlocked on whether he was guilty of manslaughter. The second verdict, returned last month, acquitted him of the involuntary manslaughter charge.

What remains is the mother’s claim that Swartz violated the teen’s Fourth Amendment rights against illegal search and seizure, a protection that in this context includes wrongful death.

Part of Swartz’s defense is that, as a federal employee doing his job, he has qualified immunity. But the real legal dispute is whether federal courts have jurisdiction to even consider the claim.

In a 2-1 ruling earlier this year, the majority of a panel for the 9th Circuit Court of Appeals said the fact that Elena Rodriguez was shot and died in Mexico does not overcome the clear evidence that the action started in this country with the bullets fired by Swartz while on duty.

“We have a compelling interest in regulating our own government agents’ conduct on our own soil,” wrote Judge Andrew Kleinfeld for himself and Edward Korman. He said that gives federal courts jurisdiction here.

“Applying the Constitution in this case would simply say that American officers must not shoot innocent, non-threatening people for no reason,” the judge wrote. “Enforcing that rule would not unduly restrict what the United States could do either here or abroad.”

But that ruling is destined to be reviewed by the Supreme Court.

The justices already are weighing a separate case involving the parents of 15-year-old Sergio Hernandez. They are suing Border Patrol agent Jesus Mesa Jr. who shot and killed the teen who was in a culvert on the Mexican side of the border across from Texas.

In that case, though, the 5th Circuit Court of Appeals has sided with the Mesa in concluding the family has no legal right to sue. That creates a conflict between federal appellate courts that usually requires Supreme Court intervention.

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