KVOA News 4 Tucson
March 14, 2014
by Lupita Murillo and Michel Marizco
NOGALES - The family of a Mexican teen shot by U.S. Border Patrol agents after he allegedly threw rocks at agents over the Nogales border wall in October 2012 released the audio recordings of three phone calls made to Mexico's emergency phone system the night of the shooting.
The recordings illustrate a frantic series of events that led to the death of José Antonio Elena Rodriguez, 16, that night. The FBI, which is investigating the shooting death, has declined comment citing the ongoing investigation.
The agency typically does not discuss open investigations and has given no details of the case. U.S. Customs and Border Protection Office of Internal Affairs responded to the shooting incident that October 10 night, but has also declined to comment.
Isidro Alvarado is a Mexican security guard who says he was walking about 20 feet behind José Antonio when two people ran past him. That's when the shots rang out. He ran from the incident and called Mexico's 0-6-0, modeled on the 9-1-1 system in the U.S.
"They are shooting with a firearm. It appears to be an agent of the Border Patrol," he told the dispatcher. "Send patrols urgently. Urgently!"
Interviewed last Sunday in Nogales, Sonora, Alvarado said he saw the hands of two people reach through the bars that separate the two countries and open fire. "Two hands. The shots entered from two places," he said.
Alvarado and José Antonio's mother, Araceli Rodriguez, say U.S. investigators interviewed them at the Dennis DeConcini port of entry last summer.
In another call to 0-6-0 that night, a Border Patrol agent called in to report that someone may be hurt on Mexico's side of the border.
"I'm calling to report there were gunshots along the border line in Whiskey Number 3 and apparently there is someone hurt on the Mexican side," the agent told the dispatcher.
Whiskey Number 3 is a law enforcement designation for a graph of the area shared by law enforcement on both sides of the border. The shooting occurred about four blocks west from the DeConcini port of entry.
"About how many people are in the area?" the dispatcher asked him.
"On the Mexican side, I couldn't tell you. On our side, there are about five," the agent said.
"Are you alright?" the dispatcher asked the agent.
"Listen, and what were they doing? Were they damaging the border wall or something?" the dispatcher asked.
"They were throwing rocks."
"About how many shots did they fire?" she asked.
"How many shots were fired, do we know" the agent asked someone in English.
"Right now, I couldn't tell you," he tells the dispatcher.
"But there were various?" the dispatcher asked him.
Luis Parra is a lawyer in Arizona representing the dead teen's family.
"That recording is a valuable piece of information," he said. "It's basically a call, from witnesses, civilian witnesses, and it's also a call from the Border Patrol themselves recognizing that there were five officers at the scene and there were various bullets fired that evening."
José Antonio's family has said the dead teenager was not involved in the rock-throwing against the agents.
The incident began about 11:15 p.m. Border Patrol agents and Nogales, Ariz., police responded to a 9-1-1 call of suspicious men wearing camouflage pants and sweatshirts on International Street.
According to a Nogales Police Department report obtained by the News 4 Tucson Investigators, Officer Quinardo Garcia spotted two men matching the description and carrying bundles of marijuana strapped to their bodies.
They jumped the border wall and ran toward a residential area. Garcia chased the two men and called for backup, yelling at the men to stop. He lost sight of the two men and a Border Patrol agent joined him in the search.
At that point, Garcia wrote in his report, he heard fellow Nogales police officer John Zuniga alert that there were rocks being thrown over the border wall.
"Shortly after, I heard a loud noise, which I identified immediately as a gunshot, and following after, several more gunshots," he wrote in his report.
Officer Zuniga initially believed the gunshots may have come from Mexico. Garcia emerged from the area and met with Zuniga and Border Patrol agents "where I learned that a male subject that [sic] had been throwing rocks at agents from Mexico. The male subject had been shot by one of the U.S. Border Patrol agents," he wrote.
Garcia also noted that there were many medium sized rocks scattered around where the agents and officers had parked their vehicles.
An autopsy conducted by investigators in Nogales, Sonora, determined José Antonio was shot 11 times, mostly in the back, the shoulder blades and the back of the neck and head.
The case is one of at least 8 cases since 2010 where Border Patrol agents shot and killed someone the agency alleged was throwing rocks at agents. Many of those cases remain under investigation. Last week, Border Patrol Chief Michael Fisher, under pressure from Congress and critics, released the Border Patrol's Use of Force policy and made public a directive to agents.
"Agents shall not discharge firearms in response to thrown or hurled projectiles unless the agent has a reasonable belief, based on the totality of circumstances, to include the nature and size of the projectiles, that the subject of such force poses an imminent danger of death or serious injury," he wrote in the directive.
Art del Cueto, president of the Border Patrol's Tucson union, Local 2544, called that directive vague. "We never pull our guns unless we are in danger, anyway," he said after the directive was released. "What are agents supposed to do? Retreat? That's not an option."
Araceli Rodriguez, José Antonio's mother, says Fisher's directive has changed nothing.
"It's the same as it's ever been. It simply reminded agents of what they are supposed to be doing in the first place," Rodriguez said.