Monday a judge with the U.S. District Court of Arizona in Tucson will decide if a Border Patrol agent used excessive force when he shot a Mexican man trying to avoid capture.

On Nov. 16, 2010 Jesus Castro Romo was shot in the stomach near Nogales, Ariz. Romo is claiming excessive use of force under the Federal Tort Claims Act. That Act says the U.S. is liable for damages caused by action of a government employee and it also means the case will be decided by a judge not a jury.

Romo is asking to be repaid for pain, medicine and lost wages after the injury by former Border Patrol agent Abel Canales. In a separate case in 2012, Canales pleaded guilty to corruption charges after accepting a bribe at a border checkpoint.