Trayvon Martin has been on my mind, and because he's been on my mind, José Antonio Elena Rodríguez has too. Both were young, unarmed boys of color (17 and 16 years old, respectively) gunned down in 2012 - Trayvon by neighborhood watch volunteer-cum-vigilante George Zimmerman on February 26 in Sanford, Florida, and José Antonio by at least one unnamed Border Patrol (BP) agent on October 10 in Nogales, Sonora.
The connection between Trayvon and José Antonio is one that many folks can't help but make here in Southern Arizona, but one that is not being made as often outside the borderlands for a number of reasons. In some places, it is cops and vigilantes that pull triggers with impunity, but in the borderlands, in Nogales, Ciudad Juarez, San Diego, Douglas and many other communities, it is the Border Patrol as well. However, behind the security- and enforcement-centric frames that dominate what little coverage there is of the border, stories like that of José and other victims of BP violence can get lost or distorted. If, as many politicians and officials would have us believe, the border is a war zone, isn't José Antonio just collateral damage, a tragic price to pay for a "secure" border?
The Zimmerman exoneration shocked millions in this country by revealing that Florida state law, at the very least, provides a legal loophole for vigilante violence against people of color. What I want to show here is that there is a comparably terrifying situation in the borderlands, one in which state violence against migrants and Mexican nationals like José Antonio is carried out with almost total impunity and governmental nontransparency.
This is not an effort to direct attention away from Trayvon and toward José Antonio and the Border Patrol, to put the two tragedies into competition for attention. It is, rather, an attempt to link the two deaths, to show that they are both a part of the bigger picture of white supremacy and racialized control.
Because the shooting of José Antonio has not received as much national attention, a brief summary of the events that evening is in order. According to the US Border Patrol, the agents involved responded to a report of suspected smuggling around 11:30 PM on Oct. 10. Shortly after arriving, Border Patrol officials claim that assailants on the other side of the wall began throwing rocks at its agents. After issuing repeated commands to stop, one agent opened fire into Mexico at the alleged rock-throwers. Two Nogales, Arizona, Police Department officers on the scene throughout the incident, however, did not report that any BP agent issued a warning before opening fire.
Many people question the official story, with most focusing on the disproportionality of rocks and bullets and on the geography at the site of the shooting: Unlike most parts of the border wall just west of downtown Nogales, the section of wall near the shooting is on top of a 15- to 20-foot cliff, and its base is covered in dense brush, all of which makes seriously injuring agents on the other side difficult, if not impossible.
José Antonio's family disputes Border Patrol's claim that he was involved in the rock throwing or smuggling, contending instead that he was simply walking by on his way to help his brother out at the end of a convenience store shift, as he had done many times before.
But regardless of the exact circumstances of either tragedy, both Trayvon and José Antonio were walking in places where they had every right to be at the time of their deaths, but were nevertheless viewed as a threat, dehumanized by the person who ended their lives: José Antonio, a Mexican citizen, was on Mexican soil, four blocks from his house and near the border wall on Calle Internacional in Nogales, Sonora, while Trayvon was on his way back to where he was staying in a gated community in Sanford, Florida. Both are stories of race and embodied suspiciousness, anecdotes of a decidedly non-post-racial present in which the color of one's skin can literally be a matter of life and death. To instinctively view folks crossing the border - or just on the other side of it - as dangerous, was a necessary first step along the way toward shooting José, or any of the countless others who have found themselves on the wrong side of an agent's gun. Similarly, it was Zimmerman's immediate identification of Trayvon as a threat, the knee-jerk equation of youth and blackness with criminality, that started the chain of events that ended with his senseless death.
I'm in no position to write with authority about the shooting of Trayvon Martin, a task which plenty of others are doing admirably well. But I do know the case of José Antonio well, and I believe it is important to spark conversations about the ways in which the two cases are similar and the illuminating ways in which they diverge.
At the heart of both tragedies is anxiety and insecurity. George Zimmerman, as extensively laid out in a report by the Miami Herald, was obsessed with the protection of his gated community and the threats he felt that young men, often of color, posed to it. Similarly, José Antonio was walking in a place that, at least in the eyes of many Border Patrol agents, is seething with threats: armed narcos, violent migrants, corrupt cops, even terrorists. This is despite the fact that armed confrontations are rare and no member of any terrorist group has ever been apprehended on the border.
I've spoken with many agents doing line-watch, their vehicles parked and idling, the imposing wall and brutal scrublands on both sides almost equally still. The strange fusion of boredom and anxiety is a hallmark of agent demeanor, at least that of many agents with whom I've spoken on the job.
They warn me that if I insist on running or walking along the wall, I risk being picked off by a cartel bullet or knifed by a desperate, drug-addled smuggler. Almost a third are veterans of Iraq and Afghanistan. Many more think of northern Mexico as a war zone, not far removed from the battlefields from which they may have just returned, and they find it difficult to understand why I would ever want to go there, let alone so often. They seem, quite sincerely, to expect to find themselves in a firefight at any moment with the lawless, dark-skinned hordes they imagine to be on the other side, lurking, waiting. In my experience, these beliefs are widespread among agents, even though patrolling the border is among the safest law enforcement jobs in America.
After years of massive hiring and recruitment of veterans, an agent with many years of experience told me that they have seen BP culture change radically since they joined more than a decade ago.
"They have a totally different military attitude," the agent said of many new recruits. "You throw in a little racism and guns, and that’s a bad mix."
The agent went on to say that, "a lot of agents have very ethnocentric views. They’re always making fun of Mexico and Mexicans. How do you have people rethink? How do you change someone's philosophy about Latin America?" the agent asked. "All the guys think the answer is force. It's a gun culture. No one wants to learn Spanish better. No one wants to be better informed about Latin America."
Use of Deadly Force Allowed
Both tragedies also happened against a backdrop of laws that sanction vigilante violence or lax agency protocol. Florida, like at least 19 other states, has a so-called "stand your ground" law that says that a resident who is "not engaged in unlawful activity . . . has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another, or to prevent the commission of a forcible felony."
While Trayvon would likely still be dead without Florida's Stand Your Ground law, it is hard to imagine Zimmerman's exoneration without it. In a brilliant recent column responding to his acquittal, legal analyst Andrew Cohen argues that Zimmerman received, in the narrowest sense, a "fair trial" because the strict rules that govern criminal trials "did not allow jurors to deliberate over the fairness of Florida's outlandishly broad self-defense laws."
"What the verdict says, to the astonishment of tens of millions of us," he writes "is that you can go looking for trouble in Florida, with a gun and a great deal of racial bias, and you can find that trouble, and you can act upon that trouble in a way that leaves a young man dead, and none of it guarantees that you will be convicted of a crime."
In short, the jury, however racist they may or may not have been, was not entirely to blame. They were simply asked to evaluate if Zimmerman acted within the bounds of state law. The primary culprit was the madness of the law, the letter of which Zimmerman may indeed have been following. However, it is hard to believe that Trayvon's race was not implicated in the apparent ease with which Trayvon was constructed as the aggressor, in the struggle that preceded his death, to the jury.
According to the 2004 Department of Homeland Security Interim Use of Force Policy, "[L]aw enforcement officers and agents of the Department of Homeland Security may use deadly force only when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person."
While many law enforcement agencies have similar rules of engagement, practically applied, the policy has been a Stand Your Ground law for Border Patrol agents, essentially guaranteeing impunity when they shoot and kill people.
"It errs on the side of the agent and agency," the agent quoted above told me.
Talking through a hypothetical BP shooting, the agent explained that "all [the agent] has to say is this, and it has to be backed up by a set of circumstances: If he says in his report, 'I feared for my life or I perceived a threat that might endanger the safety of others,' if he articulates it in that way, it's very difficult to second guess that agent. Even the lawyers in court will have a hard time," the agent said. "Even when it's not a just shoot, it comes out as just because of the circumstances."
Since 2010, agents have shot and killed at least 20 people, one of whom was fellow agent Nicholas Ivie and seven of whom were 20 years old or younger. I say "at least" for this reason: Jim Calle, a lawyer for the union local representing Tucson Sector agents, was quoted in an outstanding Arizona Daily Star investigation into these shootings saying that "[T]here are times when the public never learns about the shooting, never mind the process." For example, US Customs and Border Patrol released no information whatsoever on the December 2, 2012, fatal shooting of 19-year-old Guatemalan national Margarito Lopez Morelos until a reporter contacted the agency after receiving an anonymous tip about the incident.
Agents often justify these shootings by claiming that migrants and other victims presented them with potentially lethal threats, often by throwing, or threatening to throw, rocks. Here we see another parallel with Trayvon. After their deaths, both Border Patrol and Zimmerman's defense had to construct, however tenuously, José Antonio, allegedly armed with rocks, and Trayvon, allegedly armed with a sidewalk, as deadly threats deserving of deadly force. This is why historian Robin D. G. Kelley, like many other commentators, argues that "it was Trayvon Martin, not George Zimmerman, who was put on trial."
BP agents have justified 8 of the 20 known shooting deaths since 2010 by saying they were attacked with rocks and most of the reported assaults against agents annually are with rocks, not AK-47s, as their rhetoric might lead you to believe. No agent has ever been killed by a rock.
Unlike Zimmerman, agents who shoot and kill people can rest reasonably assured that they will never face a criminal trial. The last time an agent was criminally prosecuted for shooting a migrant was in 2008 when Cochise County Attorney Ed Rheinheimer brought second-degree murder charges against Nicholas Corbett, who shot and killed 20-year-old Francisco Javier Dominguez-Rivera at point-blank range in January of 2007. Two trials and two hung juries later, Rheinheimer dropped the case.
In the absence of criminal charges, victims' families often pursue civil cases against agents, but these have a spotty track record of success. Agents can reasonably expect to avoid even agency sanction. Calle, quoted in the same story mentioned above, said that it is "exceedingly rare that an agent faces disciplinary consequences for their conduct." Union and agency officials, of course, claim that this is because shootings are almost always justified and within agency use-of-force parameters. However, consistent, even award-winning, nontransparency from BP about agent-involved shootings and investigations into them, coupled with well-documented and statistically irrefutable reports of systemic physical and verbal abuse of migrants, leaves many to wonder what the Border Patrol is hiding.
Here we get into some of the key differences between the Trayvon and José Antonio cases. As flawed as it was, Trayvon's death resulted in a trial while José Antonio's shooter will almost certainly never face a jury. Zimmerman's trial, as unlikely as a conviction was, did provoke a sustained and ongoing national conversation about race, as well as the woeful inadequacies and frequently racist outcomes of our criminal justice system. In the absence of a high-profile trial, however, José Antonio and other victims of Border Patrol violence have been easier to forget, especially beyond the borderlands, where coverage of these deaths has been thin and sporadic. Beyond that, the media's construction of Mexico and the borderlands as lawless, peripheral places has helped feed widespread misunderstanding and normalization of the tragedies that happen there.
But it's not just the absence of a trial and critical coverage: José Antonio's family doesn't even know the name of the agent who killed him or whether the agent is still working for Border Patrol, nor have US officials investigating the shooting ever spoken with them about where the case stands. They are entirely in the dark. When Tucson or Pima County law enforcement officers shoot someone, the officer's name is released and the investigation into the shooting is public. The Border Patrol, however, keeps the names of agents involved in shootings secret. The only reason the family of 2011 Border Patrol victim Carlos Lamadrid knows the name of the shooter is because they sued the federal government for it so that they, in turn, could sue the agent for their loved one's death.
I know José Antonio's grandmother Taide and mother Araceli, personally, and they have told me on numerous occasions that this information blackout is exasperating. "It's what hurts the most," Taide was recently quoted saying. Araceli's route to work sometimes takes her past where her son was gunned down and along the border fence to a bus stop where BP agents are often parked nearby, on the other side.
She sometimes wonders if she's looking at the person who took her son's life.
José Antonio's case, like countless cases before it, is fading in prominence. These border tragedies seem to happen, and then disappear into the opaque bowels of massive federal bureaucracies, shielded from scrutiny and informed public debate. However, while Comprehensive Immigration Reform's (CIR) fate is uncertain, it is especially important now to keep the memory of these young men alive, to reflect on these tragedies and what reform would mean for border residents like José Antonio.
The US Senate's version of CIR includes a rough doubling of Border Patrol presence on the southern border, from approximately 19,000 today to at least 38,000 over the next 10 years. Without dramatic changes in agency use of force policy and the development of meaningful mechanisms to transparently investigate and punish agents who violate the human rights of migrants, there is every reason to believe that this "border surge" will result in a dramatic increase in agent-involved shootings. The bill does require a review of DHS use of force policy, but there are serious doubts about whether any changes of substance will result. Reform would also mean the rapid hiring of agents, a process that has been criticized in the past for filling agency ranks with poorly trained and screened people of questionable character, as well as increasing the frequency of agents shooting migrants.
But even with a reworked use-of-force policy and investigations with teeth, there is a more fundamental problem with border policing: that it takes place within such a toxic, militarized, and racist rhetorical environment, one in which it is common sense, despite being completely mad, to believe that most people coming across the border represent a threat to agents and the nation. It was in this context that José Antonio, a likely-unarmed 16-year-old, was transformed into a menace deserving of up to 11 bullets in the back. It was in an analogous context that Trayvon Martin, in Zimmerman's estimation, deserved a single bullet through the chest. As Robin D. G. Kelley has pointed out, "our black and brown children must prove their innocence every day."
But on the evenings they were killed, neither Trayvon nor José Antonio got the chance.
As long as young black men are instinctively viewed as threats, there will be more Trayvons, and as long as the border is patrolled and constructed as a war zone, there will be more José Antonios. Stand Your Ground laws are indeed a clear and present danger to young men of color, and all people to a lesser degree, just as CIR, as it now stands, is an existential threat to migrants and the millions of people who call the US/Mexico borderlands their home. But ultimately, it is the history and reality of racism, white supremacy and xenophobia that make these laws and legislative efforts deadly.