Watch this New York Times explainer video showing Toronto Police Constable Ken Lam de-escalating a situation, avoiding the use of deadly force, as he singlehandedly arrests Alek Minassian, the driver of a van that ran over dozens of pedestrians on April 24. Then contrast it to the 2012 shooting of a Mexican 16-year-old through the U.S.-Mexico border fence in Nogales, for which a court acquitted U.S. Border Patrol Agent Lonnie Swartz a day earlier.
As the Times describes it:
First, Constable Lam turned off the siren blaring from his car. This immediately lowered the temperature, experts said, making it easier for him to communicate with the suspect. Also, by leaning into the car, the officer is indicating that he is not in a rush.…
When the suspect yells that he has a gun in his pocket, Constable Lam replies: “I don’t care. Get down.”…
Next, the video shows, Constable Lam steps out and away from the cover of his car, indicating perhaps that he has assessed that the object in Mr. Minassian’s hand was not a gun.
Constable Lam then issues his first warning: “Get down or you’ll get shot.”…
Constable Lam then backs away from Mr. Minassian, who walks toward him, threatening object in hand. In response, the officer appears to replace his gun with a baton, visibly de-escalating the threat to Mr. Minassian.…
Then, Constable Lam confidently and slowly approaches the suspect with his baton in hand. By the time the officer reaches him, Mr. Minassian has dropped the object in his hand, raised his hands in surrender, turned and laid down on his stomach with his hands behind his back.
Now, every case is different. But compare this to the October 10, 2012 nighttime use-of-deadly-force incident at the U.S.-Mexico border in Nogales, Arizona-Sonora. Agent Lonnie Swartz killed José Antonio Elena Rodríguez, a 16-year-old who was likely throwing rocks over the border fence.
As rocks begin to hit the fence and ground on the U.S. side, one of the Border Patrol agents by the fence retreats for cover. A Nogales police officer also retreats and places his K-9 partner into his vehicle. All in a matter of seconds.
Swartz, with gun drawn, walks to the fence and starts shooting. “Shots fired, shots fired,” someone calls on the radio. He fires 13 rounds, stops, reloads his pistol and fires three more rounds—16 shots in 34 seconds, according to the prosecution.
On Thursday, the jury watched several different parts of the model, which showed that Swartz was about 90 feet away when he fired his first salvo of shots. Swartz then moved to two different firing positions along the fence, emptying an entire magazine of .40-caliber hollow-points from his H&K P2000 before reloading, and firing three more shots.
Swartz later returned to collect his magazine, before he went over to a telephone pole, vomited and began crying, according to fellow agents’ testimony last week.
On April 23, after a monthlong trial that was the first of a Border Patrol agent for a cross-border shooting, an Arizona jury acquitted Agent Swartz of second-degree murder. A juror said “the evidence showed the Border Patrol agent perceived that lives were in danger.” But the jury ended up deadlocked on lesser manslaughter charges. Prosecutors are deciding whether to pursue a manslaughter retrial.
Here’s a photo of the site where the shooting took place, taken in December 2013. That’s me in the lower right, taking a picture. I’m standing in the very spot where Elena Rodríguez, the 16-year-old, fell to the curb and died. Police would find ten bullet wounds in his body.
As you can see, the top of the border fence looms about three stories overhead from here: any rocks thrown would have been bloopers more than line drives. Agent Swartz knew that using less-than-lethal force was an option; he had reported responding to six earlier rock-throwing incidents, according to the Tucson Sentinel, “either by throwing a ‘stingball’—a grenade-like weapon that explodes and throws out rubber balls—or by firing a pepper-ball launcher—a paintball gun that fires balls made from a pepper-spray-like concoction.” But he did not use those options this time.
Based on this and other incidents, U.S. Customs and Border Protection (CBP) asked the Police Executive Research Forum (PERF) for recommendations in 2013, and in 2014 it released a new use-of-force policy. Here is what PERF said about rock-throwing incidents at the border:
Review of shooting cases involving rock throwers revealed that in some cases agents put themselves in harm’s way by remaining in close proximity to the rock throwers when moving out of range was a reasonable option. Too many cases do not appear to meet the test of objective reasonableness with regard to the use of deadly force. In cases where clear options to the use of deadly force exist and are not utilized in rock-throwing incidents, corrective actions should be taken. CBP should improve and refine tactics and policy that focus on operational safety, prioritization of essential activities near the border fence, and use of specialized less lethal weapons with regard to rock throwing incidents. The state CBP policy should be: “Officers/agents are prohibited from using deadly force against subjects throwing objects not capable of causing serious physical injury or death to them.”
CBP ultimately went with this standard in its revised policy:
Authorized Officers/Agents shall not discharge their firearms in response to thrown or launched projectiles unless the officer/agent has a reasonable belief, based on the totality of circumstances (to include the size and nature of the projectiles), that the subject of such force poses an imminent danger of serious physical injury or death to the officer/agent or to another person. Officers/agents may be able to obtain a tactical advantage in these situations, through measures such as seeking cover or distancing themselves from the immediate area of danger.
Since then, deadly-force incidents have declined. The border isn’t Toronto, but it’s better. Still, a post-trial statement from the president of the Border Patrol union, Art Del Cueto, shows that the culture of justifying deadly force, even under questionable circumstances, is deeply rooted.
“Lonnie Swartz took the extra step to defend himself and to defend the life of fellow agents around; so he pulled out his weapon and fired at the threat,” Del Cueto said. “A lot has been said that he continued firing, but the threat had not ended. There was still rocks coming at the agents, still rocks coming at Lonnie, and he was shooting at the direction where the rocks are coming from.”
Similarly, Swartz’s defense attorney, Sean Chapman, employed a line of argument that Border Patrol is somehow different from other law enforcement, even portraying it as “military,” as the Tuscson Sentinel reported. (It’s not. Border Patrol agents are civilians.)
Throughout his opening statement, Chapman emphasized how agents are different from people like the jury or the attorneys. He said the Border Patrol is essentially a military organization created to enforce federal law where there’s a risk of violence all the time. “It’s the mindset that they have, the way they are trained. … They don’t think like we do; they think based on their training.”
That’s probably not true, at least not anymore. But if it is, then that training must continue to change. Agents are not soldiers, and they are not in an armed conflict. Deadly force must always be a last resort in law enforcement as Constable Lam showed us all so well this week.