Mr. Chief justice, may it please the court. When this case was first argued to this court two years ago, counsel for respondent and counsel for the United States were asked if they were standing on u. S. Soil when he was shot and killed. Both said yes. The question before this court today is therefore whether the sacks nevertheless foreclosed because in this case, sergio was standing a few feet to the mexican side of the border at the time he was shot. For two reasons we believe that it isnt. First, where the victim is standing does not in fact trigger any of the special factors counsel, identified by the respondent or the United States. Most importantly it is difficult to see how Foreign Relations could be a special factor concluding if it wouldnt have been the claim if he had been standing a few feet away. It is belied by the long history of successful tort claims against federal Law Enforcement officers including cases in which the victim was a foreig r er harmed on foreign soil. Nor does extra territoriality cut against it. Not only was respondent standing on u. S. Soil when he pulled the trigger but he could not have known in that instant where the wlet would even land, let alone the nationality of anyone it might hit. Secondly, it is bivens or nothing. Neither the respondent nor the United States seriously disputes the it prevents the recommended they could have pursued. And neither has identified any other alternative remedy for the petitioners here as opposed to other parties in other cases. All of this goes to why this court was right when explaining there are powerful reasons to retain bichbls a its a recommended for individual instances of Law Enforcement overreach. It goes to why even though he was standing on mexican soil when he was shot and killed, this case presents the exact Law Enforcement overreach that ned mind. I think it is a useful place to begin our analysis. In that place, not only did this court suggest that there were still Important Reasons to retain bivins in Law Enforcement context but this court actually preserved and retained one of the plaintiffs bivens claims. It returned to the court rather than dismiss him the abuse claim of the warden. And we think that reflects four of the reasons why retaining bivins in the Law Enforcement makes essential. First, as this court said, it is difficult to contemplate other remedy whens individual instances overreach in play. A damage action after the fact will usually be the only possible recourse. It will be difficult to claim in advance. Second, the deterrent effect, what this court has called the poor purpose of bichbls to determine individual officers could quite easily be lost in the absence of remedies, unlike when this court stressed there were alternative recommendeds available to the plaintiffs. Third, the historical tradition that we note in our brief where federal courts and state courts going all the way back routinely imposed tort damages against federal officers without suggesting there was separation of powers obstacles to doing so. Without suggesting there was anything wrong the federal courts providing a cause of action in those cases. As opposed to where the inquiry has focused. Immunity are. There cases to actually hold the defendant officer harmless. He was active in good faith or under the clause he didnt violate clearly established rights. Thank you. If the officer in this case had been a state officer and Everything Else was the same, would the victim have a claim in federal court . So if the questions in federal court, justice alito, i dont think the victim could make a claim under 1983. As the government points out, the language of that statute limits the class of plaintiffs. But justice alito, congressman enacted in 1983 as the judge noted in his disent below was not thinking about limiting recommendeds. It was thinking about expanding remedies in that context in 1871 to newly freed slaves. So it does nothing for whatever state tort remedies. That will vary a bit. Suppose there were no 1983, and a state officer had done exactly what the agents did in bivins. Would there be an action against the state officer . There would be. And i think in this context, reminding the court in the position in bivins. It was not that the federal courts should not be recognizing these remedies in any context. Rather the context in bivins was that new york state tort law would have provided an adequate remedy. Not just against the law but also had they been new York City Police officers. That new york trespass law would have provided the rep did i to quote frye the governments broef in bichvins, it should on be recognized when it is necessary. And the argument was whether a complimentary federal remedy was necessary for the Fourth Amendment rights given the existential of new york trespass law, given the argument that new york trespass law in that context was adequate to vindicate the plaintiffs Fourth Amendment interests. And this was the common law model. I think were all familiar with henry harts dialectic. It was understood that even federal officers would be principally responsibility to judges in state court. There was no general. You referenced the governments position in bivins. That was almost 50 years ago. In the interim, there is been a firstly dramatic change in how we approach things implying causes of action and under bi l bivins. Its been 40 years since the last time. So i think you need to move up half a century and explain to us why we should take your approach today regardless of what the prevailing legal regime was in 71. I take point. If i may offer two points in response. I say all this by putting bivins in context. Bichbls with you a continuation of its tradition. The government points out on page 11. Where this court has had the opportunity on recognize the bivins drremedy, none involved claim that an individual federal Law Enforcement officer was acting. None of the suits involved the kind of claim we have here. None of the suits involved the context in which this historical tradition was at its richest, mr. Chief justice. Not all the cases even involved claims that would have had a common law parallel. So we prog this court has been increasingly skeptical of causes of action in general and not i have abouts in particular. Our point is that it has been reserved, or at least focused on categories unlike this one. If bivins were a statute, in effect, we would apply the presumption against extra territorial application. The other side argues that therefore even if writ a statute, it wouldnt apply in a circumstance like this. What is your answer to that . I think we have two answers, justice kavanaugh. The first is that bivins is not a statute. This court has never suggested that in looking at whether particular constitutional provisions applied territorially, we would use any of the typical presumptions that we apply to statutes because it is a fundamentally Different Task from the perspective of looking at the extent to which the constitution applies overseas, versus what comments would have been tended. But even if it is believed it is appropriate, i think it helps us more than it hurts us. They said there will be cases in which the underlying conduct, it involves activity that touches and concerns u. S. Soil with sufficient force to displace the presumption against extra territoriality. So we can still say this case is different. The respondent was on u. S. Soil. The victim, hernandez, this court has said, on that it is injured abroad. It doesnt have any Fourth Amendment rights. So what seems like a rather arrogant discussion, at the end of the day, there is no federal constitutional right that can be asserted by a noncitizen who was injured abroad. Verdugo stands for, in that case there was no Fourth Amendment protection for a National Whose home was searched by dea agents. I think this court suggested in hernandez two years ago that the Fourth Amendment question in the context of a cross border shooting is more xlatd. And it is the fact that that case is unsettled sorry. This is my question too. What then is the limiting principle in we have a Foreign National injured abroad by a national in the United States. I can think of a lot of cases that will encompass. Not just cross border shootings but all kinds of tort thats can occur transnationally. Would you capture all of those . Not at all. It cant be this is good for one shooting only, right . No. And i think the court is familiar with there is more than one shooting. But the larger position is it is focused on the Law Enforcement nature. So many of the im athletic chy that were thinking of why would it be limited to Law Enforcement as opposed to other governmental functions happened here but injured persons abroad . Because it is in the Law Enforcement context that there is the strongest appeal to the historical tradition in our briefs. Where there is a Straight Line dating all the way back to the founding where it was Law Enforcement where common law remedies against officers were so important. There arent many examples. I could find non. Of combat operations, for example, where state courts were enforcing tort remedies. So you draw a line there actively in this case and say that any actions involving military operations diplomatic operations, any other operations of government are not, there is no bivins action there. Only for Law Enforcement, whatever that means, operations. I wouldnt decide more than is necessary. Okay. Thats what i thought you would say. All right . So where is, if youre not willing to draw that line, where is it . And how is this court supposed to draw it . You say, you could say this but i wouldnt say it. Where would you draw the line . I think based on this courts jurisprudence, i think the line could reasonably applausebly no, no, not reasonably, plausibly. I think it isnt necessarily squint this full tradition. It has still left open Law Enforcement conduct. Not just this court. Congress in the 1974 amendment to the federal tort claims act went out of its way to and fanld liability of the United States for intentional torts committed by Law Enforcement officers. It is not just intentional torts. It is rogue intentional torts. Thats an important limiting principle. It absolutely is. Excepting the facts of this case, is u. S. Of force on u. S. Lands, and it is unreasonable because the claim is that this young man was doing nothing but standing on the other side of the border. And i think this might be a more convincing answer, i hope to Justice Gorsuch. I do believe it is relevant to the claim and the strength of our claim in this case that the respondent was, according to the plausible allegations, violating not just the constitution but his own departmental regulations that we have not just a Law Enforcement officer, Justice Gorsuch burks a Law Enforcement officer are we supposed to decide this . I thought, i wrote a disent, i guess. I thought this is special. It is american Law Enforcement, american soil, and he thought he might be shooting an american. And the border in this case is rather special. It is not just the line. It was the river. And it is administered by an international commission. Okay. I have about six wonderful reasons that persuaded only me. Now i thought were taking this case on the assumption that the Fourth Amendment does apply. And the only issue in front of us is not that but rather we assume that the Fourth Amendment applied. That it is a cheer violation of the Fourth Amendment. The question is whether there is a bivins action for a clear rogue violation of the Fourth Amendment that takes place in the way this does. Is that sufficient that it is some kind of extension of the Fourth Amendment . Or this is some kind of special situation . That i thought was the issue. Ill try to answer that question, i would like the hear what you say about that. I agree completely, justice breyer. I think that i dont care whether you agree or not. All i want is to hear your argument. I dont want to repeat myself. But on the assumptions i gave, what is your argument that this is not an extension . That this is not special. That this is not an unusual thing. They have long recognized for Excessive Force are what they called classic. I believe judge kavanaugh called at this time core of bivin thats a Law Enforcement was acting. So justice breyer, i think theres least an argument. Even if it is a new context, the government responded how it identified three special factors that they argue counsel hesitation. First because this case implicates Foreign Relations and National Security west dont believe informs simply from the fact Sergio Hernandez was standing on the mexican side of the border as opposed to the merge side of the border. The government argues extra territoriality was a factor. As i think i responded, we dont think it is implicated here because this case touches and concerns u. S. Territory with sufficient force to displace the presumption. And the Third Special factor invoked by respondent and the government is comingal action. And i think in that context, there is no example of congress specifically trying to preclude claims like petitioners here. The only Time Congress has ever spoken to the tort liability of again, Justice Gorsuch, this is where we get our test from. Individual federal Law Enforcement officers. Congress has expand that had liability. Just to go with the first of the things you mentioned. The International Relations. There has been diplomatic correspondence between the Mexican Government and our government with respect to this incident. The Border Patrol has conducted an investigation and reached the determination that the action of the agent was not contrary to policy. And you would have the courts look into this by providing a bivins remedy that could well come to the opposite conclusion. So in terms of our relations with mexico, we would have one agency saying this was not inconsistent with policy. We would have the court saying it is. And that is the type of thing makes it at least a new context. You can say it doesnt make a difference. In terms of our relations with mexico, they have two different things. And at least with respect to Foreign Relations, i thought country was supposed to speak with one voice. I certainly agree that the country is supposed to speak with one voice. Two points in response. The first is, have been if the government continues to believe, if a respondent continues to believe there would be a be bivins remedy, if Sergio Hernandez hbl simply standing on american soil, it is not clear why the same concerns wonlts be equally present biffle that logic, any time a u. S. Officer harms a Foreign National, it is not hard to imagine similar diplomatic correspondence following of the. They argue it is not merely the Foreign Policy, but that Border Security is also National Security in some respects. Thats a different context, slightly different than the Foreign Relations. Can you address that . Absolutely. We certainly agree that Border Security as a policy is important. If we were here challenging one of the governments Border Patrol policies, this would be a different case. I think it is important to note back to the chief justice question, the dispute is over whether the respondent violated the very government policy. We are not challenging a policy of the government. We are claiming respondent himself didnt comply. The government responded. We dont think it is the kind of policy to which this court has historically acovereded deference in the Foreign Relations and National Security sphere. If it is an after the fact single determination as opposed to a challenge to an entire Border Patrol policy. I thought you were challenging the constitutionality of what was done. Not whether it was squint Border Patrol policy. Is that, does that provide the basis for a federal claim . If you put the Fourth Amendment aside that it was contrary to Border Patrol policy works that provide the basis for a federal claim . Not for a damages suit, of course. But just to go back to my colloquy with Justice Gorsuch, the reason we believe this is in the heart wiland with bivins, i because here we do not have a case where the claim is that a particular policy of the United States in the Foreign Relations or National Security sphere was the source of the injury. Here we argue that it is coextensive the constitution. If we are correct, which we have not yet had a chance to prove. If we are correct that respondent violated Sergio Hernandez constitutional rights, would it also be a violation of policy. To us the questions blend together. It helps to drive quloem this case is not like the nine cases this court has had since can we go back to the question that i asked . If breaking into someones home and searching and seizing, if thats not a Fourth Amendment violation because the person is a noncitizen and it happened abroad, you said a cross border shooting is more complicated. Why should it be different . I think it was this court that said that in hernandez. And i think the reason is because theres some uncertainty in the lower courts, as reflected. The original threejudge Panel Decision in this case, theres some uncertainty about just how broadly this courts decision, in which the court that, a Mexican National could not invoke it for the search and seizure of his home. Is that a categorical on off switch at the border or are there reasons to think the Fourth Amendment question is more complicated. Especially, does verdugo still have the same force . Mrs. One part of chiefs question you didnt answer. The government speaking with one voice. And you said the government should. But hes posited, the government has said this was not a rogue action. This security guard, theyve concluded based on what we dont know, that this officer was being attacked and thats why he shot. The allegations of this complaint are to the contrary. If the court were to rule in favor of your client, not the court but a jour were to find in favor of your client, wouldnt we be speaking in two voices . You havent addressed that. Thank you. This court has never suggested that every single thing United States says that has any bearing on any possible sliver of Foreign Relations is the kind of Foreign Policy where the court has said the government should be allowed to speak with one voice. So i think there is a meaningful distinction between a policy that is shaping the conduct of our Border Patrol officers, our government officers, where a judicial decision might call into question the policy. And the context where the dispute rises and because the on whether the governments own policy prohibited Excessive Force in violation of the constitution was violated. That is to say it seems the me theres merger what if you have this one incident and the executive branch had a very different view of what happened handle the the courts did. The court said there was unconstitutional conduct here. The use of Excessive Force. But the executive branch thought he did everything by the book. He shouldnt be subject to any action even a disciplinary one. And then the courts decision, contrary to that, lets say mexico wants to extradite the Border Patrol officer. And that puts, i would think, the executive branch in a quite difficult situation. Mexico is pointing at a court judgment. The executive branch thinks theres no earthly reason to extradite. The civil judgment would prove and whether the Mexican Government would be able to satisfy the very different inquiry of whether theres sufficient evidence to sustain a criminal indictment and to warrant extradition under the terms of the u. S. Mexico extradition treaty. Thats the key point. On the governments logic, all it takes is the government showing up after an incident and saying, there is some reason why we dont believe this was unlawful. Or theres some foreign implication to a judge holding this. And it is after the fact, it wouldnt matter. Thats a fairly unfair characterization of what the government did in this case according to the representations. It was a fairly thorough investigation. And maybe at the end of the day, maybe a jury would come the a different determination handle the the governmental investigation. I dont think thats fully responsive to the International Relations kernels. It has to be, it is simply a new context. That may well be. I think our submission is simply that. The question this court has always suggested is how to preserve its core deterrent purpose. The context in which the governments after the fact determine participation an office her acted appropriately under the circumstances were sufficient to be a policy choice that does not give rise to the deference this court has historically reported. It is not clear, if not in this case, it would swallow the category. If it meant what it said when it said there are powerful reasons to retain bivins in the Law Enforcement context, we think thats true even when the government has other equities at stake. Because again, the key for us is when a court is saying an individual officer has acted, it is not the same thing as saying the governments policy is somehow inconsistent with the constitution. It is not the same thing saying were secondguessing how the government has chosen to conduct Border Patrol policies. It is simply saying this one officer went out of balance. It is the kind of claim congress preserved in the amendment. And if i may, i think the point of abbasi at the end of the day is to draw the distinction between the kind of claim this court rejected. A high level challenge to post 9 11 policies formulated by the attorney general and the if i have director and the individual Law Enforcement officer. Thank you, counsel. None has existed since the formation of our republic by extenting in a new context. Where congress has not as declined to provide a remedy and congresss silence is telling, theyve addressed this issue in the ftca which bars foreign claims of the theyve addressed it again in the eighten tort statute. And they addressed it again in west faul that carved out the exception for bivins of the the new context in this case is not tonight transnational aspect but also the utilization of the fifth amendments due process clause. The new context itself fails and the argument that there is a lack of a remedy fails when the court takes into consideration the special factors involved in the case. Intruding on the separation of powers where congress and the executive is their domain. National security and Border Patrol is National Security. The border is the forefront of our National Security. The Border Patrol, much like the military is a Paramilitary Organization charged with protecting our borders. Congress has chosen and not inadvertently. And if a damages remedy is appropriate, is the unique domain of congress the interest the public policy, to balance the protected costs, and it requires an assessment of its impact systemwide. The executive is in charge of Foreign Affairs. Theres an actual dispute in this case as mexico would like remedy and the United States has argued against a remedy. If we can go back to this complaint, and at this stage, this very preliminary stage, it was supposed to step complaints allegations as true. That here we have a rogue officer acting in violation of the agencys own instruction. Using Excessive Force to kill a child at play. How does that call into question any Foreign Policy or National Security policy . Well, it would create a Chilling Effect as to the Border Patrol agents in conducting their day to day activities. But not only a Chilling Effect. You would be, the lower courts would be in chaos. Doesnt that happen if the shooting happened in our own land . Meaning, the Border Patrol agent who sees a child at play and kills him two feet from theu÷3;t is not chilled. He knows he cant do that. What makes it chilling to tell a Border Patrol agent, dont shoot indiscriminately at children standing a few feet from the border. We have to accept the facts of the complaint on their face. Thats correct. On their face the complaint says thats what the border agent did. You cant view it in a vac upper. Well, the vacuum, this doesnt involve a mexican defendant. Mexican law or mexican courts. It involves a u. S. Defendant acting on u. S. Soil, pulling a trigger on u. S. Soil, doesnt involve. So how would we be interfering . Are you suggesting the decedent wouldnt be inside the u. S. I just said to you it involves a u. S. Border patrol agent pulling the trigger on u. S. Soil and subjecting the u. S. Border agent to the u. S. Court. Were not dragging the agent anywhere else. Thats correct, but the agent would know when he took his actions that he was inside of the jurisdiction of the he always knows hes inside and subject to u. S. Law. Dont that never changes no matter what we do here. Thats correct. But in this case, youre asking for the petitioners are asking for an extension of the constitution into a foreign republic. We assume here that it is extended. We assume the Fourth Amendment applies, my understanding is. So, we know this place by picture. Its a culvert. Its a big culver like here to the end of the room and theres a bridge. And across this bridge, hundreds, perhaps thousands, of people walk each day on their way to work or on their way home. Now, a border agent whos standing near the bridge picks up a gun and shoots one of them. If hes crossed that imaginary line in the center of the bridge, i take it you agree that you can bring action. Thats correct. And if he is an american and on the other side, you agree he can bring abivens action. That would be correct, your honor. So, the only person who cannot bring action and the border agent has no idea whether hes shooting such a person is someone who is just on the mexican side of the imaginary line on the bridge and whom he shot deliberately or roguely or whatever. That would be correct now, here is the standard. Justice kennedy writes it. The necessary inference is that the the inquiry that were off about what you this is an extension of the bivens action must weigh the cost of benefit to allowing the action to proceed. Okay. Thats my standard. Ive given you the facts. Whats the problem . We would like we ordinarily have such actions. The mexicans want it. They want the action. So, whats the special problem . It would become a matter of line drawing. No, no, not line drawing. Theres no line drawing problem. The line drawing problem may come in as to whether the Fourth Amendment applies. But here were assuming it does. And assuming it applies, whats the problem with the bivens action . Whats the linedrawing problem there . It would be the extending of bivens into a new why is it extending . I mean after all maybe in hawaii theres never been a bivens action brought before on the 14th island. Is that an extension . Its not. Its been the United States. Oh, i understand that, and this is on the other side of the line. Also, by the way, it was at 7 00 in the evening. In fact, 7 02 and there never has been a bivens ax brought at 7 02. But theres never been a bivens action brought by a transnational shooting. Ah, i got that point. All im saying is why is that different in terms of a problem caused than the fact that it was 7 02 59 on the fourth island of hawaii. You got my point . I do. All right. He does. What is it . Dont ask my point. I want to know your answer. I have to go back to it being different in so much as it is transnational. Youve said that. All im saying is why it makes a difference whether its in a bridge, on a culvert i wont repeat myself. But i went through every factor that seems to me very, very similar. I just dont understand it. So far what youve said is it will freeze the Border Patrol to which i say good. I dont think theres an american anywhere in the world who wouldnt want to stop the kind of action here. That doesnt seem a factor cutting against. You can do it if its an american. If theres a remedy to be fashioned, that would be for congress to decide. Thats the conclusion. And my answer my question is why . Because theyll be able to weigh the constant benefits of the actual remedy itself, the lu limits of the remedy, the parameters of the remedy for the courts to be able to provide guidance to the lower courts. There will be very little guidance to the lower courts. I dont understand your answer. You cant shoot an unarmed juvenile at play. And the remedies limit is that one. Thats the only thing that a court would be deciding, whether there truly was cause or no cause for the shooting. But then the determination would be on an ad hoc basis creating instability in the lower court. Why . Whats the greater instability when you already admit that bivens would apply if that child was standing two feet from the border . And if even would apply according to you if it was an american child standing two feet on the mexican border. I dont see where the greater instability arises in that situation. The instability would rise because of the actual areas where youre at. Its a National Border with the Border Patrol providing National Security in that area. So, what youre basically saying is bivens shouldnt apply ever against a border a rogue Border Patrol who just stands there shooting people both on the u. S. Side indiscriminately, takes a gun, and just sweeps both sides of the border. It would apply to those standing on the United States side certainly. Let me ask, this is actually bothering me. Im not ask you to look, if you were talking about extending the Fourth Amendment, i would see a problem. I might think we should or i might think we shouldnt. But i might think we should. But i certainly would say there is a problem. But once we say the Fourth Amendment is there in just the same way it is two feet on the other side, at that point, whats the special problem of giving a damages remedy to a mexican youth just as you would give it to an American Youth, whether that American Youth is over over on one side of the border or the other. At that point i hesitate and say thats what were supposed to find. Assuming did not fore close that, there would not be a difference. If theres no difference, then thats the end of it, isnt it . Because kennedy says look, youve got to find hes not talking about the Fourth Amendment. Hes actually not even thinking about that possibly, i dont know. Were thinking about sixth amendment, eighth, tenth amendment, i dont know. But assuming he is. Once were there, the Fourth Amendment really does apply. You say you cant think of a difference and i cant think of a difference. So, we send the case back. Now, consider the Fourth Amendment. Thats what we should do . Well, the Fourth Amendment i believe is closed by language claiming that a u. S. Agent even acting on foreign soil is not constrained by the Fourth Amendment. I thought your point was the Foreign Policy implications are triggered when its on the other side of the border and thats why we give significance to the border. But i want to press on that because wouldnt there be Foreign Policy implications even if the victim were a Mexican National and killed even on the u. S. Side of the border . Those kinds of incidents create lots of international and Foreign Policy implications as well. So, why do Foreign Policy implications track the border so neatly in your view . They track the border because the border is a paramilitary area that the Border Patrol patrols under the guidance of the executive. But do you agree there could be serious Foreign Policy implications even from an incident inside the United States with a victim whos a Mexican National . Absolutely just in the way there were in this case dealing with the extradition and the damages remedy asked for by the Mexican Government. And the u. S. Government opposing their request for a damaging remedy. So, its been 40 years and theres been no extension of bivens beyond the trilogy that this court has outlined. The presumption of ad hoc application of the law. Should we think about the lack of alternatives to mention there is no remedy at all which is unlike not all the bivens cases but some of them. When you look at the myriad of special factors including the separation of powers, National Security, foreign diplomacy, public policy, and projected cost, i think that creates quite a different picture of that and its better left for congress and the executive to decide those issues. And specifically congress to balance the public policy, the limits of the law, and to provide guidance for this court to interpret an actual statute that they would create. I believe the new context of this nature in a transnational shooting should be dispositive. It relates to a seizure as weve discussed the covered by the Fourth Amendment and is not a substantive due process claim. It would require extension of um dean to a foreign country where it maintains no jurisdiction whatsoever. It would create line drawing. It would create an unpredictable application. Even if this court were to fashion a damages remedy, the application of that remedy would be very difficult and would create chaos, in my opinion, of the lower courts and its very application. Why chaos . I guess im not seeing that. You would just extend it and it would apply just like bivens applies to lots of cases all the time . Well, it would be line drawing, wouldnt it . Justice societ mayer gave yo the line. And you look at the actions to see if there was Excessive Force. I take your point on the new context, but the chaos argument is not resonating with me. The lower courts have stood on this courts presumption against the extension in order to provide stability and guidance to them in their decisions, extending it again, extending it transnationally would create a myriad of problems. Mr. Ortega, i think im a little bit confused. Do you or do you not contest suppose there were a Border Patrol officer used Excessive Force but ten miles from the border while carrying out Border Security operations. Ten miles from the border inside of the u. S. Yeah, hes a Border Patrol officer, active within the scope of his deployment. Its very important. Hes trying to find people who have crossed the border. Hes engaged in usual Law Enforcement work. Can you bring a bivens action against that officer . The injuries occurring in the United States or outside of the United States . You know, yes, its in the United States. But this is Border Patrol work. This is border work. This is Border Security work. You can bring the bivens action if he was a rogue actor acting outside of policy which does not present itself here. If we are assuming the officer used Excessive Force, you can bring the bivens action, is that correct . If it fell outside the policy, yes, of course. Now were bringing it ten miles up the border except the person involved is on the u. S. Side of the border, still a bivens action . Inside of the United States border, correct. Okay. So a lot of Foreign Affairs concerns are present there. So too a lot of National Security concerns if were saying that Border Security is a facet of National Security, right . Correct. Okay. So, then the question is why when we just moved 3 inches over theres a different answer. That, i think, is the question that many people have been asking you. Thats right. I believe the border is real. Its a real line. It cannot be extended. The constitution cant be extended into a foreign country. It is a real line. One way to line draw is find a real line, i suppose. But i guess usually the analysis we go through on a bivens claim and i think this is the analysis the government wants us to go through is to ask about are there special Foreign Affairs concerns, special National Security concerns. And the question is why would there be special Foreign Affairs and National Security concerns with respect to a shooting that occurs 3 inches on one side of the border versus 3 inches on the other side of the border or even a little bit away from the border but very much involving Border Security work . If it keeps extending into mexico, then there would be no line. It would just keep going and going. It would be all of chihuahua, it could be all of mexico. It would never end. It would be no different than a drone pilot in colorado hitting the wrong target in syria. I think were positing a defendant in the United States and who is committing his action in the United States. So, unless this is a very farreaching bullet, i dont think so. Thats correct, and that was the hypothetical i gave you regarding a drone pilot in colorado happens to hit a village in syria. It would be the same action. He would be in the United States. The victims would be in syria. The injury would occur in syria. Thank you, counsel. Mr. Wall. Mr. Chief justice, and may it please the court, a Foreign National was killed on foreign soil by a federal officer patrolling an interNational Border. That is plainly a new context for bivens purposes and several special factors counsel hesitation here. Clear Foreign Relations concerns with peks had mention and the need for Border Security, clear extraterritoriality, and clear signals from congress in 1983 and the ftca that it does not approve for damages liability for injuries abroad. Taking a step back, lower courts marketedly less willing to apply causes of action for damages. If this Court Extends bivens here on these facts, it will threaten to reverse that trend by undermining the courts consistent message about the importance of caution and judicial modesty in this area. To turn to the first of the three special factors, the Foreign Relations with mexico. I dont think its difficult to figure out why Congress Might pause. The United States and mexico have an active disagreement over what happened here. We have bilateral mechanisms for working it out like the border violence prevention counsel which meets and talks about things like use of force. When we are conducting those negotiations, if we are taking positions about what has happened at the border and courts mr. Wall, the problem is that the allegation here is not about their meeting and talking about policies. Its about rogue actions. And i take a look at the unique eye, the former like the cpb, but others who tell me pretty persuasively and extensively that the Border Patrol might be a bit of a miss and that disciplining is at a minimum here. Investigating, et cetera, is not done in the way that others of us would think would be appropriate to an agency. All of those things suggest to me that the class you want to create is a class of Border Patrol agents whether they shoot across the border or shoot in the border. Justice sotomayor, im happy to go through the reports in the evidence and say look there were 55 use of firearms in fiscal year 12, more than 70 drop in 18. We can go back and forth about whether we think the customs and Border Patrol is doing a good job at the border or not. I think the bottom line point is this is subject of legislative debate. There is a body to consider these kinds of questions. That would have been true in bevins itself. Someone could have said there are all sorts of things that control the fbi, and we shouldnt extend bevins but we did because theres a fundamental belief that unconstitutional actions that stem from the United States, this agent fired that gun from here, should provide a remedy. Yes, as you said, bivens was a product in an era no, hes not a product of an era. Thats what the court said in abossy. Thats what abossy said, but if you look at bivens itself, it was based on a historical finding that rogue actions, even in foreign soils, taking a ship improperly, doing other things across the border required a remedy. Justice sotomayor, if i may, theyre very different and i want to be very clear on this with the court. It is true that courts for a long time applied the same common law rules to federal officers that they applied to everybody else. That was perfectly fine up until eerie and perfectly fine up until the west faul act. Thats not what the court was doing in bivens and thats not the way it conceived of bivens and leader cases. It was a special rule directly in the constitution in the absence of statutory authorization from congress. Thats a different animal from what state and federal courts were doing for a long time. At some point i would like to hear your three reasons. You had three reasons. I hope to go to same question i asked 15 times, isnt this a problem for the Fourth Amendment. But if you assume the Fourth Amendment applies, whats the added problem . After all, the Fourth Amendment suppresses evidence. Were not going to change that, are we . And if the Fourth Amendment applies, suppressing evidence will happen when theres a violation and after all thats arguable in congress, it creates a mess in court, da da da. So, whats special about this . Ill try to get through a couple of things really quickly. One the friction with mexico and i think is obvious. Two, extraterritoriality. If there were a statute and it was the same as 1983 for federal officers, i dont take anybody to be disputing that absence on clear indication of language that it wouldnt pick up an entry across the border. And it seems passing strange that if the express statute didnt get it, an implied cause of action wouldnt. If you disagree with me on that, congress has judgments in this area. It cut off liability for things that happen across the border, injuries abroad. You couldnt get it if you were a state officer at least in 1983. It has recognized that the border is really significant, and why . Because when youre injured abroad, you dont work out through damages lawsuits. You work out through diplomatic and administrative processes. And thats the way congress has always done it. I think somebody needs to explain to me the kind of Foreign Affairs concerns that youre worried about. Its easy to just wave your hands and say Foreign Affairs when theres been a crossborder shooting. But i think it would help me at least to have some specifics about what kind of situations youre worried about. Here, obviously, mexico would prefer that a bivens action be given. And thats not dispositive by any means. But i guess im wondering what is the problem . I guess the problem is that the United States and mexico actively discuss incidents at the border, both specific incidents and general policies as they have for years. And for instance, cvp revised the two and as they did in this case even while the bivens suit was going forward. The bivens claims does not seem to have prevented mexico and the United States from having discussions and negotiations about this very incident, did it . Thats right, but the question under abossy isnt look, can you show that in every case this is always the kind of im looking for any case. Right. And what im saying is take this case. We disagree with mexico. We had a pair of cases n. One of them we thought the agent acted unlawfully. In the other we did a thorough investigation. We concluded he hadnt acted unlawfully. Mexico believes were wrong about that. It believes were not taking the policy seriously at the border. We have a state department and they talk about these issues. Im still looking for in one state of the world you dont have a bivens claim in mr. Hernandezs position. In another state of the world, he does have a bivens claim. How does that interfere with the United StatesForeign Policy . Justicety kagan, you really think that the next time we go in to talk to mexico and we take a position on something at the border they wont say how is your representation credible . You told u. S. Last time that your own courts told you were wrong. I think it undermines the credibility of the executive branch in working with the foreign government. Why wouldnt the United States then say we live in a country in which courts play an Important Role in determining whether conduct is lawful. Thats not an embarrassment to the United States or to the executive branch. Of course courts play a role. But the role under abossy is a limited one where if there are special factors that counsel hesitation, court says we leave it to congress, even if you disagree with me on Foreign Relations, you have statutes passed. We know from chappelle that you weigh the aggregate. The question is across all of these things is there enough here to think that we ought to pause before we apply cause of action and we ought to leave it to congress. I think looking at the balance theres clearly enough to say there is a body that can address these kinds of on the grounds concerns at the border, but its congress. Its not the courts. And i guess the last thing i would say is, you know, the fifth circuit looking at this said, look, facts are tragic. This court said last time its a heartbreaking loss of life but said this is not a close case under abossy. I disagree with respondents counsel about hypotheticals 3 inches inside the line or ten miles inside the line but you dont have to agree with us to think that once youve crossed the border and dealing with Foreign Nationals on foreign soil, now youve crossed into territory did you say you disagree, mr. Wall . I do. So, the 3 inches inside the line, whats the case there . Take the easiest hypothetical, Foreign Nationals going across the border. Certainly grant special factors arent going to apply. Youve still got Foreign Relations and National Security concerns. I think probably best answer is theres not a bivens action. How about ten miles from the bord border but doing Border Security work . Youve still got foreign action. But whether or not you agree with us on that, this is a special case. Thank you, counsel. Mr. Black, three minutes. Thank you, mr. Chief justice. I take the answer that the government has changed the position from hernandez one where the argument was actionable under bivens. That aside i want to go back to putting this case in the broader context. I think its important to understand how we got here. Historically, the whole way that the liability worked through government misconduct was that this court and state courts looked to existing common law causes of action and focused on immunity defenses as the way of calibrating the harm that citizens and others faced when injured by government officers against the need to protect officers acting in good faith. Back to judge hand. The court struck this balance by fashioning immunity defenses where the fight would be over whether the officer was entitled to immunity or not. For Law Enforcement officers specifically, this court has longrejected the argument there should be any context in which Law Enforcement officers because of the frequency with which they interact with average individuals, because of the nay choufr their interactions, because of the powers they have to search, to seize, to arrest in this context to use lethal force did not justify absolute immunity. And instead justify aid more narrowed qualified kind of immunity for those most likely to come face to face with private citizens. Distilled to its simplest, the governments position in this case is that officers in what is selfdescribed as the nations largest Law Enforcement agency should have a functional absolute immunity at least where Foreign Nationals are concerned. Our submission is that is not consistent with how this court always understood the relationship between causes of action and immunity in this context, it is not required by this courts decisions, it does not abide by abossy, and it would eliminate the one deterrence that is meaningfully available to ensure that officers in the nations largest Law Enforcement agency are compliant with the law. Before you finish, can you address one decision that the government seems to put a lot of stock in, and that is rjr rs what is it . Is it rjr . So, that goes again to the question of whether extraterritoriality is a special factor counsel on hesitation. I want to be clear. We agree there will be much harder cases if say for example, agent mesa was miles into mexico acting under legal authority. But nabisco reinforces. When the underlying conduct touches and concerns u. S. Territory with sufficient force to display the presumption. If ever there was a case, your honors, where the underlying conduct touched and concerned u. S. Territory with sufficient force, its when a u. S. Law enforcement officer standing on u. S. Soil uses lethal force. Thank you, counsel. Case is submitted. Centers for Disease Control and prevention director dr. Robert redfield will testify on the coronavirus spons. Watch that live thursday on cspan3, online at cspan. Org, or listen live with the cspan radio app. Sunday book tv features on ve conversations on u. S. President s and race. Live conversation with author and White House Correspondent april ryan. I studied for this at Morgan State University just down the road. I studied for this. This was my vocation, not knowing that i would be under fire for asking questions. I have asked questions of each president , the same question except for one, of each president over the last 21 years. But asking questions now has me fearing more if i life. Earliest book is under fire, her other books include at mamas knee and the presidency in black and white. Join the conversation with your tweets and facebook messages. At 9 00 p. M. Eastern on after words cal thomas discusses americas role as a super power. We are not each others enemies as lincoln said. If we dont make this great experiment called democracy or Constitutional Republic work for succeeding generations as i argue in my k boo, were going to expire. There is no guarantee. Things are looking great. But when things are looking great, its time to shore up the foundations. Watch authors april ryan and cal thomas sunday on book tv on cspan2. U. S. Governors invited their counterparts from canada to the u. S. For a discussion on how states and canadian provinces can Work Together on trade, infrastructure, and the environment. This is part of the National GovernorsAssociation Annual winter meeting held in washington, d. C. Well, so, our next panel, were very excited to get an