When Justice Fails: Lessons from a Killing at the Border
by Vince Isner
On April 24 an Arizona jury acquitted a U.S. border patrol agent of murder charges in the shooting death of 16 year old Elena Rodriguez, a Mexican teenager from Nogales who was killed for throwing rocks at the U.S. border wall in 2012. The agent, Lonnie Schwartz, said he felt his life was being threatened and was justified in opening fire through the opening in the steel wall at a downward angle on the unarmed teen. The boy was struck more than ten times, mostly in the back and at least once in the head. Officer Schwartz emptied his gun, reloaded, and continued to pump at least three more rounds into the teen’s body before deciding he no longer posed a threat. The teen had been using rocks to divert the attention of border patrol agents in an attempt to smuggle a packet of marijuana through the wall from the U.S. into Mexico.
The trial was delayed by a lengthy departmental investigation but was ordered forward in 2015. The trial began in March 2018 and ended in the agent’s acquittal after just four weeks.
U.S. immigration cameras captured the entire incident but footage was never allowed as evidence in the trial, despite several attempts by human rights groups and prosecuting attorneys to require U.S. Border Patrol to comply.
A spokesman for the American Civil Liberties Union, who filed a separate lawsuit on behalf of the victim’s mother, said that “At a basic human level, our case challenges the notion that a U.S. border agent can stick a gun through a hole in a fence and shoot at Mexican kids 20 feet away with no constitutional consequences.”
A candle still burns at a small shrine at the site where 16-year old Rodriguez was shot to death. Today he would be 21, and although Agent Schwartz now stands acquitted, the incident calls into even deeper question the credibility, justice, and the constitutionality of U.S. immigration law and the underlying moral assumptions that offer such unconvincing and distorted legal cover in favor of government officials to commit murder and walk free.
To understand the legal gymnastics necessary to mount even a modest defense, one must see the site of the shooting. During an immersion journey sponsored by OMNIA to explore the deeper issues of the immigration crisis on the border, our host, Jerry Haas, Executive Director of the Border Community Alliance, took the group to the bluff where the officer fired and to the street below where the teen was killed. It took only a moment to see that no teen standing in that street, rock in hand, could possibly qualify as a life-threatening presence. It took even less to see that no patrol agent, armed or not, perched dominantly behind a massive steel wall looking down into the empty street below, could believe that a boy holding a rock could pose anything but an annoyance.
(Video of both locations here.)
And yet, a United States Court has ruled that the border patrol agent acted within the bounds of the law.
The symbol of justice in the United States -the one adorning nearly every courthouse in the country, including the U.S. Supreme Court - is a heroic female figure, Lady Justice, blindfolded and impartial, holding a protective sword in one hand and in the other, a scale. It is intended to convey the idea that justice is blind, allowing only the facts to tip the scales without regard to prejudice, circumstance, or self-interest.
But what if the foundation upon which Justice herself stands, is tilted? She becomes hopelessly and forever partial, imbalanced, and unjust. It requires that the viewer himself bend and twist his own view in order to merely accept the assumption of balance.
And that, it seems, is the history of our nation.
While it is true that we are a nation of immigrants, there is nothing in history to suggest that our laws - including our immigration laws - have been crafted, codified, and carried out upon a level foundation. In fact, from its earliest beginnings, justice has been in our language but rarely in our dealings. The earliest European explorers came to American shores armed with a doctrine of superiority and dominance. They arrived with an appetite for material wealth and they were emboldened by religion - in particular a theology of white Christian supremacy. Theirs was a puritanical theology of manifest destiny. “A shining city on a hill” - that’s how Governor John Winthrop of the Massachusetts Bay Colony described it.
While the authors of the Declaration of Independence held “life, liberty, and the pursuit of happiness” to be among those self-evident truths, there is no use pretending they were ever intended to be extended equally to all. Not even Thomas Jefferson, its chief author, believed his slaves deserved these rights enough to grant their freedom.
Yet, the past does not equal the future, and with each generation the struggle to broaden and perfect our laws remains the ongoing work of every democracy. It is good to remember that none of the freedoms we now enjoy have been won easily, nor are they ever guaranteed.
The surge of nationalism since the election of Donald Trump and the emboldened white supremacist views that have come with it are a dangerous form of extremism, bolstered by flawed and shallow religious doctrines. It has shown up most forcefully at our nation’s borders where racial prejudice, material greed, ignorance, and fear of “the other” have further eroded the foundations of justice. Such erosion causes an imbalance that is hard to ignore and is even more obscured by religious pronouncements from some Christians who believe that our borders are sacred and that unless they are defended at all costs, our God-given freedoms will be lost. Never mind if the threat is just a teen with a rock - if we feel threatened, by God we have just cause to eliminate him. We are Americans, dammit. A shining city on a hill.
Or are we just rusty steel wall on a bluff with a flag on our sleeve and a kid in our crosshairs?
If we ever hope to right the scales of justice we must begin at the foundations. Both John F. Kennedy and Ronald Reagan invoked the vision of Winthrop’s city. But Winthrop loathed democracy. He was a narrow-minded, pro-slavery bigot, a religious zealot who executed women as witches, and who believed that he and he alone possessed the truth and that it was given to him by God and that by God he had the right to plant his beloved city in the New World even if it meant hanging, drowning, or severing everything and everyone who stood in his path. This is the theology of our puritan forebears. It is our “received” theology.
Despite steel walls and the cowards who hide behind them, despite twisted theologies and the bellicose preachers who proclaim them, despite the unjust laws and the bent and twisted masses pretending they are seeing level, there is a standard - a plumb-line that, if we muster the courage to use it, can teach us what justice looks like. It is a standard that lived deep in our bones long before it was set down in writing:
Love your neighbor as yourself. That gets at it. That’s a horizon line we can agree upon. From there we have a lot of digging to do.
OMNIA’s work has been and continues to be to challenge religious extremism and its injustices either caused or legitimized by religion. One of the best ways we can do this is to identify and disrupt received theologies of exclusivism and superiority. Next we need to teach persons to work across religious and political lines to discover our common needs as well as our common opportunities. Then we must all work toward a model of democracy that invites everyone, regardless of race, religion, creed, or economic status, to build a society that is equitable, balanced, and just.