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Both sides upbeat after hearing about fatal border shooting

January 22, 2015

NEW ORLEANS (AP) — A U.S. Border Patrol agent who shot and killed a Mexican 15-year-old across the border should be accountable in U.S. district court because all of his actions were in the U.S., an attorney for the boy’s parents told judges Wednesday.

“There is no legal black hole on the border,” Steve Shadowen said as the hearing opened Wednesday before all 16 judges of the 5th U.S. Circuit Court of Appeals.

Agent Jesus Mesa Jr. asked the full court to hear the case after a 5th Circuit panel ruled 2-1 that Jesus Hernandez and Maria Guadalupe Guereca Betancour could sue him over the death of their son, Sergio Hernandez.

The judges did not indicate when they would rule.

Allowing the suit would be “in essence, invading the power of a foreign country,” said Mesa’s attorney, Randolph Ortega.

Mexico doesn’t see it that way: A “friend of the court” brief for Mexico’s government asked the court to let the lawsuit proceed. An attorney from the Mexican embassy attended the hearing but referred comments to the embassy press office, which did not immediately respond.

“Practicality and common sense — as well as the United States’ international human rights obligations — demonstrate that the U.S. Border Patrol’s obligation to refrain from unjustified use of deadly force does not vanish when the victim is located just across the border in the territory of a foreign nation,” said the brief, filed earlier this month.

Judge Edith Jones asked Shadowen whether that interpretation might make the United States liable for the deaths of innocent wives and children killed by U.S. drones targeting jihadists in Iraq or Afghanistan.

“There’s a difference between military use of force and civilian use of force — a civilian law enforcement agency,” Shadowen said.

Attorneys for both sides were upbeat after the hearing.

“The unifying theme I picked up is that everybody recognizes this is an injustice and needs to be remedied,” Shadowen said.

Ortega said he’s confident the full court will overturn the ruling by the three-judge panel. “What encourages me is the law as it stands,” he said.

Justice Department attorney Henry Whitaker declined to comment, saying that only the department’s press office could do so. It did not immediately respond.

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