Friday, August 10, 2018

Nogales Border: Mother of rock throwing son killed by border agent can sue, rules judge

Chivis Martinez Borderland Beat -from Arizona Star




A federal appeals court this morning ruled the mother of a teen shot by a Border Patrol agent through the fence has a legal right to sue him and the federal government in U.S. courts for damages.

In a 2-1 opinion, the majority of the panel for the 9th Circuit Court of Appeals said the fact that Jose Antonio Elena Rodriguez was shot and died in Mexico does not overcome the fact that the action started in this country with the bullets fired by Lonnie Swartz.

"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.


Swartz
Kleinfeld also suggested the U.S. Department of Justice was being inconsistent in arguing against civil liability in this case. He pointed out that the same agency is using its criminal laws to prosecute Swartz in federal court on charges related to the exact same incident.

But Judge Milan Smith Jr., in his dissent, said there is no authority of federal courts to hear claims for actions outside the United States. And he pointed out that another federal appeals court, hearing a case with virtually identical facts, reached the opposite conclusion and found there is no remedy for victims and their families in federal courts in these cases.

That split virtually guarantees that this case will end up at the U.S. Supreme Court. And even if the justices there say Araceli Rodriguez, the mother of the 16-year-old victim, has a right to sue, that does not guarantee a jury in Tucson will see things her way.

Elena Rodriguez was in Mexico, near the international border fence in Nogales, when Swartz shot him from the Arizona side on Oct. 10, 2012.

The Border Patrol has argued — as has Swartz in his criminal case — that the agent was defending himself against rock throwers. Elena Rodriguez was shot 10 times in his back.

In the criminal case, a jury acquitted Swartz of charges of second degree murder but deadlocked on the lesser charges of manslaughter. A new trial on those charges is set for later this year, though Sean Chapman, Swartz's attorney, is trying to get those dismissed.

102 comments:

  1. 10 shots to back? Dang.

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    Replies
    1. So say the MEXICAN autopsy! We all know how they roll.

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    2. Swarz must have sprayed him with bullets to hit 10 times before he fell.

      Thats typical US kind of 'self-defense' just like blowing up Afghanistan.

      Preying on the weak its called in nature programs.

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    3. 10:32 international incidents should not be left to assholes like you to judge, it is one thing that black lives don't really matter and another that white supremacist elements infiltrated in government offices like "officer" Schwartz are doing their dirty bastardly deeds as if they still were in Iraq.
      Shoot and kill someone face to face at least,
      I'd say extradite the motherfacker to mexico as the Mexican criminals that shot or attack gabachos in mexico get extradited to th usa.

      Delete
  2. It's the number of shots to his back that has me concerned about the case. The jury has a lot to think about.

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    1. Why? The officer was cleared after several (local, state and federal) investigations!


      What should concern you are the hundreds of Mexican murdered by Mexican police and military with a shot in the head and the thousands who've disappeared after being arrested by the police or military.

      Delete
    2. The agent is not in the clear yet, this article says he is scheduled for a new trial later this year on manslaughter charges. Also, my concern is about the BP agent killing someone across the border. This could start a rivalry where "agents" from the Mexico side shoot at people on the US side.

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    3. 10:34 am so that means they can shoot us thru the fence from aninternational standdspot? How does that help us? That concerns us as well i live in matamoros tamps we have enough problems due to the international trade of drugs goin up the border n weapons goin south the border... Now ill b worried bout bp officers who may try to shoot at me just for fun?

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    4. @5:25
      A rock to the head can be fatal. Why did this young man attack an American doing his job? The officer was on his side of the border and attacked by person on Mexican soil.

      Note the Mexican was the first one to initiate the conflict.

      Play stupid games, win stupid prizes

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    5. Even a U.S. citizen on the U.S. side of the border would be harshly dealt with for this sort of behavior. I think the whole thing is very tragic, but it's the logical, predictable, and obvious outcome....I don't see any solutions that would be palatable for all everyone involved.

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    6. get a rock thrown at me and I can shoot someone 10 times in the back too? Those are equivalent to you? you gotta be fucking kidding me.

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  3. In the end nothing will change Gov will argue that he was defending our civil liberties.it will be swept under the rug.its an international murder.he should be tried in mexico.

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    1. Yeah, he should be tried in Mexico because we all know the Mexican justice system is fair and honest.

      BTW, the officer has been cleared after SEVERAL investigations by SEVERAL agencies!

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    2. You know how those "investigations" roll. Police agencies cover for their own.

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    3. Let me tell you guys a true story about corruption in America. The police raided a new house in a new subdivision down in south Florida a few years ago. Intel said that the owner of the house was the biggest drug dealer in town. On the day of the raid the cops came up empty. It was an open secret in town who the dealer was. But the reason the dealer wasn’t caught unbeknownst to police was that he was related to a high ranking officer within the department. A few days before the raid the officer tipped off the dealer about the raid. So the dealer just hid his drugs elsewhere. The cops not wanting to look like fools then turned around and pressured the builder to renege on his contract with the drug dealer buyer. Afterwards a cop was given the house through some sort of deal to keep as watch over the subdivision. To this day that cop still lives in that house. And the drug dealer still pushes product in that town. With cops in his pockets. So as far as cops covering for each other and corruption goes. Yes it happens. All the damn time. I don’t say this story to detract from any honest cops in the world. Because I’ve met some cool ones. But don’t ever think American cops are not on the take sometimes. - Sol Prendido

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    4. 10:36 Clearing of an officer by his own criminal comrads or all white all American juries on the US does nothing for justice, let some International Human Rights organization look at the facts and report to the People, unless someone is afraid of expert witnesses and investigators that may find the stink...

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    5. Sol...being Florida, I totally believe that.

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  4. 10 shots to the back is cowardly murder. He could have just shot to the air or near him without hurting him. Scaring him would be enough punishment and deterrent. The agent is a bloodthirsty criminal, he was looking for an opportunity to kill someone.

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    1. Why shoot in the air? So he come back and throw more rocks. Sooner or later you gotta send a message that this has got to stop. 10 rounds to the back is excessive though, but I would not let some little thug throw rocks at me. Criminals always play victim when they get pew pew pewed up

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    2. If someone is attacking me, I don't want to SCAR him or shoot him in the leg, I want to stop the aggression ASAP!

      Officers are TRAINED to shoot to stop the threat, NOT to wound. You've watched too many Rambo movies.

      Speaking of blood thirsty, what's the murder rate in Mexico?

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    3. So sick of people who say can't you shoot him im the leg.. or if u can't stop him w a tazer u need better training, you watch too many movies

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    4. the fact that you refer to killing someone as pew pew pewed up shows me you are a fucking idiot. Your the last person i ever want being near me with gun.

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    5. Has anyone ever shot a fun? You’re trained to shoot repeatedly. With the fear of death the adrenaline running through your body, 10 shot get fired on a split second! Its not hard to understand!

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  5. $500,00 -35 percent the lawyer's get - taxes , she stands to get +$295,000

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    1. This criminals mother doesn't care about his son, if she did, she should have done a better job raising and guiding him.

      All she cares about the dollars she can make off his killing.

      Delete
    2. @1040, spot on.. maybe if you were a real parent your kid wouldn't be standing at the border chucking rocks at police... The mother is the real loser

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    3. Try throwing rocks across at police across an international border anywhere in the world and I guarantee you will be shot.. only in America where liberals apologize for everything is it question

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    4. Liberals are the worst, there's plenty of messed up broke socialist countries for you to go to.. pick one and stop trying to fack up the best country in the world!

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    5. Blame the victim. Damn BB. Youve turned into a racist scumbag like alot of your commentators.

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    6. 716 sorry they turned your head upside down. They publish meaning full articles. If you want they can refund your subscription.

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    7. That rock thrower wouldnt earn $295,000 in his whole lifetime!!!

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  6. 9th Circuit Court of Appeals
    Trick or treat 🎃

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    1. Exactly... its not called the 9th circus court for nothing. Most overturned court in the country.

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    2. They all also take on more cases.

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  7. What ever happened to shooting someone in the leg? I don't condone what the kid did but WOW 10 shots to the back!?! The border agents are trained professional marksmen....aim for for the legs!

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    1. What makes you think being shot in the legs is any less lethal then in the torso?

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    2. NO LAW ENFORCEMENT OFFICER is trained to wound!!!!!!!!!!!!!

      If a situation is so threatening as to having to resort to deadly force, you shoot to stop the threat.

      And the only one claiming 10 shots to the back is the mother.

      Delete
    3. your statement is 100 percent accurate. This keyboard warrior above obviously has Zero tactical training so I find his comment funny.

      Like when some calls a Magazine a clip. This guys statement is like someone calling a magazine a clip

      lol

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    4. The kid that killed all those kids in Florida had a rifle in his hand and was arrested with out a scratch! How's that for stopping a threat!?!

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    5. Buy the way I got shot twice in fallujah.... I am trained and I never shot anyone in the back! Especially an unarmed kid...and us veterans have had rocks bottles and animal crap thown at us! It's called restraint!

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    6. 8:16 ...and nobody would give you a million dollar contract to train their murdering hordes of police officers in shooting to kill, anybody, for any reason, or no reason at all,
      with security of impunity...

      Delete
  8. This is the very liberal 9th circuit of appeals. Their rulings are often over turned......Now 10 rounds in the back is wrong, but there is probably a bit more to it

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    1. 10:01 throwing rocks from your back is a crime, and about as evil as giving the evil eye to anyone.

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  9. Is it Lonnie Swartz or Loony Swartz? It’s been said redheads are supposedly fiery. - Sol Prendido

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    1. Are you judging someone based on the color of their hair??? I hope your not another hypocrite liberal

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    2. As someone who dropped out of school even I know you don’t shoot someone 10 times. That’s just overkill. Kid was wrong for throwing rocks. But he didn’t deserve to be shot up like Swiss cheese. That’s just a bitch move on border patrol agent. Someone like that shouldn’t even have the right to carry a firearm. As for the mother. Even if she was compensated. It’s best she leave Mexico quickly. Or move elsewhere. Food vendors are being extorted. Sure enough someone is going to be watching her for that $$$. - Sol Prendido

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    3. Bp officer looks scottish or irish... Needs 2b deported back to europe

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    4. @5:19PM BP officer came here legally not by jumping a fence or crying about not having enough water in the desert.

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    5. @ Sol Prendido- that is very sad but I had the same thought about the poor mother. If she does win that money I fear some low life will hurt her to take it.

      What would it take to have the Mexican Constitution updated to allow citizens to own firearms for self defense? I know the AutoDefense carry’s weapons but even that is a Leal gray area.

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    6. 7:49
      But BP was crying about a kid throwing rocks!! And murdered him!! He probably cries about too much water and does not value what he has...

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    7. @7:49pm and you dont sound native to me meaning native to this land are you forgetting your history the one that was taught to all of us in school umm this is the land of immigrants unless you live in a indian reservation dont even comment dumb crap like you do bro wise up read up more to.lofe than skin color remmember we all bleed red

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    8. 7:49 pm did he really? Didnt they travel in a packed wooden leaky boat across the atlantic? Infested by rats plague n disease? Didn thousand more wreck their ships n died miserably not by lack of water but ironically by swallowing too much of it? N them smugglers r known as sharks n them people being transported r known as well its obvious: fish

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  10. And how many rocks did he throw?all you bleeding hearts can stop your bs,if he would have killed a us border agent would you be happy?he should have never threw rocks and he would be alive...

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  11. Such bullshit. The mother should have raised her kid better. I hope this drags out in court until the mother dies.

    ReplyDelete
  12. Every U.S. Law enforcement agency, local, state or federal have strict policies against "aiming for the legs or arms".
    Law Enforcement agencies are taught to aim at center mass only. No trying to just wound the individual. In fact,
    all Federal Law Enforcement agencies has strict policies against this. If you are found to had violated this policy,
    disciplinary action could result to include the termination of employment. Furthermore, the government can refuse to
    represent you in civil matter if you found to had been in violation of policy.

    As to the amount of shots fired, most shooting situations the assailant or the law enforcement officer typically empty
    their weapon until they run dry. Human nature.

    Not excusing that the Agent did, which I think he was wrong. Which I got from reading the court testimony previously
    presented.

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    1. 11:35 Stop it. Cops kill whom they want to kill. If they want you dead it's center mass. Cops wing people in the limbs all the time. The car terrorist in New York was wounded once. The Boston Marathon bomber wasn't shot center mass or double tapped. Yet they fire dozens of rounds at unarmed black people. Especially white male cops, who are brave when confronting the unarmed yet hide when there's an active shooter.

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    2. This is a very well detailed explanation about real law and training. This is real.
      The TV shoot them in the leg is Hollywood

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    3. The nazis were legal, no matter what they did, their training in just left no room for self doubt or undiscipline, something tells me American law enforcement has fallen in the hands of the wrong people, specially since 9/11 made them all heros, irregardless of how much corruption still pervades police departments all over the US.

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    4. @4:30. The Nazis???? Someone has been watching too much CNN and MSNBC! It shows poor education to bring “Nazi” into this scenario.
      1. It is a single agent.
      2. There is a lawsuit. You can’t exactly sue a single Nazi soldier.
      3. You need to switch up your news sources if you jump to Nazi!
      Matt Lauer

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  13. How does one shoot another 10 times in the back unless you are standing over them? Surely they would fall to ground after being shot by some number less than 10.

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    1. It's not like the movies where someone falls immediately once being shot. Unless being shot in head. Your body gets flooded with adrenaline and you run till your body gives out.

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    2. Tell me bout it i made it to hospital and collapse in the e.r.after 5 shots 10 mins later

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    3. REDRUM REDRUM Why were you shot bro, was it gang related? - Sol Prendido

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  14. Bp should train better . They are not soidiers in the army. they shouldn’t even be armed period

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    1. WTF? Not armed - They would be killed if not armed. Your statement shows you have no experience in law enforcement. Not all people are good. It just takes one bad person to end up dead. Sometimes the gun is the difference between your life and death.

      While most people are good the world is filled with violent predators. Wake up

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  15. I get why BP are anxious about rock throwers, there is a history of serious injuries from rock throwing at BPs and since 2011 has exp a uptick in incidents....but when it interferes with good judgement, then that person is unsuitable to hold any type of police employment.

    Mexico needs a campaign demonstrating the bad that comes from throwing rocks. U.S. needs greater training in how to react.

    All I know is this should not cause a knee jerk reaction from us folks in the peanut gallery. Stop and really think about it from all sides.

    I don't like to say anything negative about our police agencies, however when it is this balant it is hard not to weigh in.

    I do know if it were reversed and Mexican police from the south side of the border shot and killed a rock throwing American kid in the back...all of you would view it differently.

    a BP should not be able to shoot into another nation and kill..or visa versa, that should be a no brainer.

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    1. Mexico needs it's own border patrol to prevent incidents like this and border crossing crimes.

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    2. Has this been proven madame chivs? The bp officer stands on top of a cliff highly trained n says the guy threw rocks at him from the bottom of said cliff? They get anxious n frustrated also because theyr not navy seals or delta force merely security guards pathetic... lets not forget claudia patricia in laredo

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    3. As expected from Chivis:Well reasoned POV.
      Mexico-Watcher

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    4. Chives, nor should an Agent be attacked in his own nation from Mexican soil.

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    5. 4:13,I agree.but why do you think the new incoming president for mexico told Donald to drench the U.S.A. with our soldiers/family members,across the border.to avoid having to police his side😳

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    6. In order for it to be "reversed" you would have to undo over 500 years of imperial Spanish colonialism and anti-Anglo aggression, hatred, and bigotry.

      In what alternate stretch of the imagination can anyone even remotely conceive of American youths with sullen expressions and middle fingers extended, calling Mexico's federales every epitaph in the book and hurling rocks at them like Yassir Arafat's PLO, Hezbollah, and Hamas? The whole 'rock throwing' thing is imported, thanks to political activists, from the Middle East. Next thing you know Sorros will have his minions calling America an apartheid state, just like he has them doing to Israel since the Yom Kippur war of 1973.
      The narrative of hate and blame is ALWAYS one-sided. It is impossible to say, "If the shoe were on the other foot", because Mexico has ALWAYS been the aggressor, and America has always bent over backwards to be accommodating. Of course, naturally, it's all the gringos 'fault'. What's new? the little rock slinging runt wasn't trying to kill BP or anything... nooo. What a farce. Of course,once again, the left cries 'excessive force'. Like Mexico has ANY ROOM to talk about ANYTHING when it comes to being excessive.

      Please. Spare me.

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    7. 10 shots to the back wasnt excessive force? got it. Mexico has always been the agressor? like when the US slowly moved into texas with its slave owners? marched into mexico and took 1/3 of its country? get out of hear.

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    8. 2:01 Mexico has never done war for profit against the US or any other country or stolen any land from them either.
      --Israel's attack on the USS Liberty is still remembered by some on the US...

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  16. Reading all these comments is a trip sounds like a lot of people here dont care a life was needlessly taken...was the kid doing something wrong? Yes! Did that ahole have to kill him for it? No!!! Theirs a difference in taking a life when your life Is truly in danger.. then theirs taking lives just because you can...doesn't matter if you did it while on the job, if you take a life needlessly theirs a special place for you in the after life!!

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  17. 10 shots to the back...is excessive use of force and cowardly.
    Assault weapon a "rock" thrown from a distance hardly a threat.
    Shooting into another country...poor judgement.
    Remedy: Sue the agent for all he is worth and will ever own and government, strip agent of right to ever possess a firearm and throw in prison for a few years. This won't ever bring the kid back but it will make other irresponsible law enforcement persons think twice about irresponsibly and unjustifiably taking another person's life.

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  18. 10 shots to the back says it all. There is no way to explain your way out of that. Unless the kid was really good at throwing rocks over his shoulders.

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  19. Where is DD and the anti white National blaming comment??? Surely Trump is to blame, right DD?

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    1. Quit hating on her dude,some of us that comment here are American too.but I think you are out of pocket in taunting her...

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  20. I really have to question this"10 shots in the back" thing . Really ? What kind of gun was the officer shooting ? I will be sure to never buy one like his . So this kid is still standing after 9 shots in the back ? It took 10 to bring him down ? What kinda gun was it , a Daisy ? Must have been hopped up on PCP. The only scenario I can picture where he was shot "10 times in the back" would be him laying face down while the officer , standing over him puts a few more in him . There is something wrong with this story .

    ReplyDelete
    Replies
    1. 9:23 imaginary rocks are the new weapons of mass destruction,
      I hope Mexico doesn't get droned or nuked back to the stone age because of this "dangerous rock thrower" who I am sure did not even have a sling like the palestinians use.

      Delete
  21. The kid was probably dead after the first or second shot... the other shots weren’t needed unless someone was returning fire... throwing rocks at an armed person is just stupid but the tactic is done to bp agents to cause them to take cover so the drug mules can cross safely...this kid was allegedly throwing rocks during a drug smuggling attempt that occurred at night... if that’s the case he is a drug smuggler and shouldn’t be made into a martyr...
    ءنتنتل ءدي

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    1. 9:49 - if it was during an attempted drug smuggling how do you know that kid wasn't extorted to do it. Not saying he was, but things like that do happen.

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    2. Too many ifs in your theory to even get close to a conviction. Stay off jury duty please.

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  22. He probably emptied his clip by accident after he slipped while chasing the kid. Its pretty rocky in areas along the border and quite perilous if you dont have good boots...

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    1. 10:39 you try your bullshit...
      It is hard enough to hit a running rock thrower once in the back, to hit him 10 times takes some determination.
      Rat hunters with bb guns only hit a fallen rat one more time to finish the job, special people wearing evil glasses can do it with impunity, because that the job of law enforcement allows for it.

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    2. You got it wrong, he had his rifle at Auto mode, which with one trigger pull a bolly of bullets come out, versus semi auto one bullet comes out per trigger pull.
      Luna Apagtha

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  23. Probably cheaper to settle a lawsuit than for the kid to soak up American handouts for 40 years.

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  24. 10 shots were necessary, they were making an example out of the kid. We will kill you in the backx across the border and get away with it. Simple. Cant belive all you drug trafficker analyst cant get this one straight.. LoL dont forget to think in between the lines sheep.

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  25. A few facts, although I know it will not make any difference:

    The victim was shot while walking along a city street, not in some remote "rocky" desert as some comments assert. The border fence runs about 15 to 20 ft above and parallel to the street. The victim would have had to throw a rock uphill about 20 ft then over a 20 ft fence to hit anything on the U.S. side. A law enforcement agent could step back a few feet and be completely safe, especially in that location. The officer did not say that this particular victim was throwing rocks. He said that some people were throwing rocks, that he went to the fence and saw some shadows that he thought were rock throwers and he shot at them until he emptied the magazine. Then he reloaded, walked another few feet along the fence and shot again. He stated he simply wante3d to shoot, then "things went gray" and he maybe came to his senses. The officer was not shooting at an identified target, so he violated use of force protocol in this situation. This is according to the testimony, mind you.

    This shooting was totally unnecessary because the officer was never in any danger. Being in danger means that he felt he had no choice but to use deadly force. This was never the case in this trial. Read the report.

    The 9th Cir. has ruled that the victim's survivors can sue in U.S. District Court for damages. In reality, authorities in both countries have grounds for taking legal action against the border patrol shooter. Mexico, of course, could charge him with homicide and attempt to extradite him. Good luck. Although nothing would sober up rogue cops more than the possibility of spending some time in a Mexican jail, Mexico's government is incompetent.

    If I didn't know any better, I would say that if this incident had taken place in the U.S., there would be no doubt that it was murder, but that is ridiculous. Bottom line, it involved a law enforcement officer shooting an unarmed teen in the back. No way the cop would ever be convicted. We've all seen the videos...

    In the U.S., one of the elements of a violation of civil rights, the shooting, was initiated on U.S. soil. For legal purposes, it really does not matter that the victim was not on U.S. soil. As everybody knows, any jurisdiction in which a necessary element of a crime or cause of action takes place may exercise jurisdiction over the case or prosecution. No-brainer.

    Before everybody piles on, I will tell you that, among my other hobbies, I was a lawyer for a law enforcement agency for almost 20 years and also trained cops sand forensic auditors, etc., etc., etc. So I may know something about this.

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  26. Well you don’t know how to throw rocks if you think throwing one 40 feet is hard to do... was this kid throwing rocks or not, seems to be the question...and the officer was responding to reports of drug smuggling at the location of the rock thrower or throwers... maybe we have a second rock thrower from the grassy knoll... jk

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  27. 11:13 I hope you don't train poolice officers in shoot to kill and expect immunity and impunity "tactics"...
    And thanks for your comment.

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    1. 711 that is happening in Mexico everyday, cops are working with the cartels, and killing and getting away with it.

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    2. That's true cops that are currupt kill anyone, at any given time.

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  28. DONT THROW ROCKS. PERIOD... I dare you or a Mexican national in Mexican soil to grab a rock and launch it at La Marina, or Los Soldados, La Federal.los maÑosos.. you will never do it in your right mind. You may not be shot ten times, but may be given to the cartel to be beheaded, tablazos, pozole, un guisito, 72 in San Fer Loko, 43 ayotzinapa, quien llora.... full auto 10 shots mmmmm No... i have never seen some one pinpoint full auto ten rounds from that distance... are the ten rounds to the back a fact... or an asumption... i have had run ins with the marina, soldados, federales, while they are not to kind i have managed to walk away unscathed why... I am a law abiding citizen, dont fear them why should I. They are there to serve and protect. Unlike my mexican national friends fear la marina, los soldados, los federales, la misterial, la maÑa, you name it. if i ever get stoped or shook down by la maÑa i am willing to walk away from all my belongings including my toyota... there is no property worth my life...but key factor is law abiding citizen... i dont throw rocks at any one.... what for... pendejo i frequent mexico every weekend... no problems as of yet.. gracias a dios.... my opinion

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    Replies
    1. Border patrol hiring standards:
      High school equivalency diploma or military service. No college no prior law enforcement training and No psychological evaluation needed. Oh yeah 110 days of training academy. Good luck have at it.

      Delete

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