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Gunfire from U.S., a death in Mexico. Can grieving family sue in U.S.?

Family of Mexican boy shot by U.S. Border Patrol agent seeks right to sue the agent in an American court

The family of a Mexican boy shot to death by a U.S. Border Patrol agent tried an argument in federal court on Tuesday previously made by an Abu Ghraib detainee and the family of another Mexican teenager killed along the border: The U.S. Constitution protects foreigners on foreign soil. 

But that argument failed Arkan Mohammed Ali, an Iraqi held in the notorious U.S. military prison outside Baghdad. And it failed Sergio Adrian Hernandez Guereca's relatives after the 15-year-old was killed by a Border Patrol agent in 2010.

The family of Jose Antonio Elena Rodriguez hopes the circumstances of his case will result in a different outcome.

Their argument, as laid out in U.S. District Court on Tuesday, centers on the Border Patrol agent on the night of Oct. 10, 2012. From enduring a flurry of stones thrown across the border to firing his .40-caliber pistol and reloading and firing again, everything the agent did was on American soil. 

But the shots crossed the border and killed 16-year-old Jose, who was walking home from a basketball game in Nogales, Sonora. According to arguments by the Border Patrol agent's attorneys, that means the boy's family has no legal means by which to sue.

The family counters that Judge Raner C. Collins need not make a broad ruling concerning all cross-border shootings. But they say that all actions leading to Jose's death happened on the U.S. side of the border, so the Constitution applies.

"The most fundamental right is the right to not be arbitrarily killed," said American Civil Liberties Union attorney Lee Gelernt, who is representing the family. He added that the border agent was only fortunate that he didn't happen to kill a U.S. citizen living across the border.

Acknowledging the shooting was "horrible and tragic," attorney Sean Chapman nevertheless said his client, Border Patrol Agent Lonnie Swartz, did not deprive Jose of his constitutional rights, because in this case, he has none.

"We may like it, we may not like it, but it is the law," Chapman said.

Collins did not say when he would issue a ruling on the matter.

Swartz isn't arguing that Jose posed a deadly threat, but rather that the agent didn't know he might be firing on someone with constitutional rights. The U.S. Department of Justice recused itself from the case because Swartz could face federal criminal charges.

The hearing comes as investigations into several fatal police shootings across the U.S. scrutinize one central question: Did an officer truly feel a threat to his life?

In Ferguson, Mo.; Staten Island, N.Y.; and Cleveland, officers' actions just before the use of deadly force are compared with the perceived threat posed by a suspect.

Border Patrol agents, too, face scrutiny over the use of deadly force in several cases.

scathing internal report obtained by the Los Angeles Times last year criticized the Border Patrol for lack of diligence in shooting investigations, and found that agents sometimes used questionable tactics when implementing deadly force, such as intentionally standing in the path of a car to justify shooting at drivers.

Border Patrol agents fear the projectiles thrown at them from Mexico, referring to the experience as getting "rocked." So when the report suggested that agents refrain from responding to rocks with deadly force, the Border Patrol pushed back hard.

The agency rejected two major recommendations in the report: barring border agents from shooting at vehicles unless its occupants are trying to kill them, and barring agents from shooting people who throw things that can't cause serious physical injury.

A Homeland Security Office of Inspector General report in September found that border agents opened fire on rock throwers 22 times in fiscal year 2012. It did not say how many people were injured by the "rock assaults" or by the gunfire.

Forming a backdrop to Tuesday's arguments was a ruling from the 5th U.S. Circuit Court of Appeals, which found in April that the family of Sergio Adrian Hernandez Guereca couldn't sue in the case of his death because the shooting's effects were “felt in Mexico.”

Sergio was on Mexican soil when the agent, Jesus Mena Jr., fired his weapon from the El Paso side of the border after some youths began throwing rocks at him.

On Tuesday, attorneys on both sides brought up the 5th Circuit case -- Swartz's attorney to argue that the matter was decided, Jose's legal team to say that the ruling had no impact on this case in Arizona.

In the 5th Circuit case, an agent was responding to people trying to cross the border. Gelernt said this case was different because there's no implication that Jose was engaged in an action that involved the border agent.

"What [Swartz's attorney] is asking you to do is write an opinion saying a Border Patrol agent can put his gun against the fence and shoot, killing a teenager, and the Constitution has nothing to say about it," Gelernt said.

Collins joked from the bench on Tuesday that, no matter how he rules, the case is likely to be appealed.

If it is, it will go to the 9th Circuit Court of Appeals, which is more liberal than the 5th Circuit. Disputes between federal appellate courts are settled by the Supreme Court.

For news from the border and the Southwest follow @nigelduara on Twitter.

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