NEW ORLEANS — A U.S. Border Patrol agent who shot and killed a Mexican 15-year-old boy across the border should be accountable in U.S. district court because all of his actions were in this country, 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 said the country hopes the 5th Circuit allows the suit as part of "international obligations with regard to the right to life."
"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.
Judge E. Grady Jolly asked whether the ruling could be written to apply to this case only. Yes, it could, Shadowen said.
But Justice Department attorney Henry Whitaker said that a single-case decision would go against a 1999 ruling. In that case, the high court overturned a decision that the government had unlawfully seized a Mexican from his homeland and prosecuted him for the murders of a U.S. drug agent and his pilot.
"The Supreme Court did not hermetically seal law enforcement" from other areas, he said.
Judge Stephen Higginson asked whether Mexico could have indicted and prosecuted Mesa without his presence. Shadowen did not directly answer the question, but did say that federal officials refused to extradite Mesa.
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 is confident the full court will overturn the ruling by the three-judge panel. "What encourages me is the law as it stands," he said.
The Justice Department does not comment on pending litigation, spokeswoman Nicole Navas said.