Decision. Heres the oral argument from ebruary. Case 115. Mr. Chief justice and may it please the court. 15yearold Sergio Hernandez was standing in mexico barely across the border unthreatening and unarmed when he was shot and killed by a u. S. Border patrol agent standing inside the United States. This tragic case is one of the most similar left extra territorial case this court will have in flont of it for five reasons. First, all of the conduct of the Domestic Police officer happened inside the United States. Second, it was a civilian Domestic Police officer. Third, it was a civilian plaintiff, not an enemy combatant. Fourth, it was one of the most fundamental rights, the right to life. Fifth, the other government involved supports the government of mexico supports the claim. So is that i was trying to figure out from your brief what exactly your rule is. So were all five of those necessary in your view for them to be a claim . Is anything else necessary. Is that the rule you want us to adopt . The rule we are asking this court to rule when the u. S. Domestic officer on u. S. Soil shoots and there is no constitutional constraint is when there is a crossborder shooting involving a federal Law Enforcement on u. S. Soil and the resulting injury is in close proximity, then Fourth Amendment constraints on that officer should apply. Thats a test that surprisingly fits the exact facts of your case. It seems to me the principles ou are arguing for cant be so narrowly confined. How do you annualize the case of a drone strike in iraq where the plane is pirated from nevada, why wouldnt the same analysis apply in that case . If it was a drone strike, im assuming it was military and there was cooperation with other governments here. In our case if this were in your case somebody from the state National Guard or whatever, then there would be a different result . Well, if it was a state National Guard, im not sure they would be shooting across the border. You can imagine a situation that is not precisely like the facts of your case where military officials may be involved. I can imagine that scenario, but thats not the purpose or the intent of this rule. The purpose and intent of our rule is simply to involve this court in addressing an ongoing domestic routine Law Enforcement issue along our southwest border. Your brief excluding military rsonnel and intelligence personnel. Your brief is limited to, as you said civilian Border Patrol officers. So your drone example, taking it from your brief, as a military operation. Thats right, Justice Ginsburg. I understand that, but im trying to see the logic other than you are involved in a nonmilitary actor. Mine is a military actor. Im not sure that makes a difference. Maybe there will be some defenses once you recognize the cause of action that has to do with the military action but why wouldnt you have a cause of action under your theory . To address the ongoing problem that resulted in crossborder shootings and six Mexican National deaths and every time the constitution according to the government turns off at the border, even all the conduct happens in the United States. I recognize under the military situation, there are orders that may be being followed. A rogue officer is not following his own federal regulations, which says you cant use deadly force without imminent peril. The question that we is our problem but we have to have your help in solving it, is you have a very sympathetic case. We write some words. And those words, you are divided with, because who wins. That isnt the problem. The problem is out people will read those words and there are all kinds of things that happen, maybe military, maybe not. Perhaps a foreign country with the collusion with people in our country sets off the drone. Thats what the chief justice brought in. And are we deciding for you, a, deciding as well that anyone who suffers a drone strike can come to new york and bring a law case . Or we deciding the matter is unclear so when the proper authorities get advice from their lawyers over in the executive branch, they have to say were confused . Ok. So. What are the words that we write that enable you to win, which is what you want and that avoid or decide uncertainty these other cases the proper way . Thats the question you have been given three times and i would like to know your answer. This rule does not involve drone strike and i do not intend to suggest that. This case involves we know that part, the question is what words do we write so that this opinion doesnt affect the drone strike, which is you seem to want . Again, sir, the rule we are suggesting has a close proximity element to it. It has all of the conduct of the United States as an officer on the United States soil shooting across the border. We could ask you whether it would apply whether those factors are a little bit. Your client was 15. What if he was 19, would that be different . No, it wouldnt be different. The rule would apply there . The rule would apply if he was 19 standing unarmed in mexico. What if he was armed but he had his hands up . Again, were not asking for a win but the constitution applies and the defense of selfdefense by the officer kkk happen. With what if he wasnt in this culvert but 200 yards beyond in mexico . Would it be different . It may be and the element of nature of the site. This culvert is unique. I would invite the court to look at exhibit 180 of the petitions append discs which is a picture of the culvert. What if the officer was not standing in the United States and actually ran a short distance across the border in mexico, that would be worse. Would you say the rule would be different there . Justice, it may be, first the Border Patrol agents are strictly prohibited from crossing the border. Suppose he crosses into mexico and shoots the Mexican National . The rule would not apply but doesnt mean that under the standards there are not constitutional protections, did he not know where the line was, did he go in hot pursuit and was he called over, the specific of the facts would affect the decision whether the constitution applied. Under our proposed rule as mexico pointed out in its brief, there have been 243 shootings along the border using deadly force, 10 of those across the border. We have to articulate a rule that applies. We just cant say that that on mr. Rticular facts here, hernandezs the petitioners have a business claim and it states a violation of the Fourth Amendment. We have to have a rule that can be applied in other cases. And i dont know what rule you. Nt us to adopt but you need to give us a principle that is workable. Is your rule is if the u. S. Agent commits on foreign soil an action that had it occurred within the United States, there is a business claim and Fourth Amendment violation, is that your rule . No. So our rule involves all of the conduct occurring on the United States side and i acknowledge a w will be nice for our side, but more importantly, the Border Patrol is 44,000 strong and only interact with Mexican Nationals. We have had 10 deadly shootings. It will not turn off the constitution. Your rule would be the same if it was the first time that happened, if it was one person and the other facts were the same, right . The rule would be the same but the response wouldnt have as much meat on that. Many of these shootings occurred and we are here because of the interaction of the Border Patrol in this area, the government has taken the position that on the border, the constitution turns off if the deadly force goes across the border. It has been argued that the constitution is only for people who are within the united tates, therefore, an alien injured abroad has no fourth or fifth amendment rights. The rule made clear that aliens abroad have Constitutional Rights depending on whether or not after the evaluation whether functionally the constitution should apply. That was dealing with habeyass. But the court did a full survey of the extra territory cases and said there was a Common Thread and this court looks like what are we asking t to do. What does it need to do and what it is being asked to do. I think you said what your rule is in a pretty clear way. You said essentially, its a border area and the shot came from the United States, so i take it is your rule. The harder question is actually and this goes back to the chief justices question, why is that your rule . What makes that confluence of factors different from anything else . The reason thats our rule is the interaction at the border of our southwest border has resulted often in shots being fired across the border. Not unique to Sergio Hernandez. You keep saying that but there is a problem here and i respect that. There might be problems in other situations as well. There might be problems when u. S. Officials go into a foreign nations territory. So that leaves me still uncertain why you are saying as a practical matter this is where the incidents are. But is that all you have as to why the border cases are different . So using the framework of the rule and the fact is that this pattern is unique to the case we are here about today but not unique to the situation on the border. He factors are used to plug in the rule that were asking for. R example, the factors are nature of the site, status of the person seeking the constitutional protection, importance of the right. So those factors we plug into this rule to address not the specific problem but reliance on the opinion which said there is a Common Thread in these cases and functional application, we took the four elements of the framework and applied them into our rule. One obvious difference is in there you were dealing with exclusive control of the United States. Here, youre dealing with mexico, an entirely different situation. I would acknowledge, you are right, it is in cuba, but its basically as the court recognized, you have a u. S. Law forcement officer whose 100 is within the United States. Within the United States property. No other government can control his actions and while inside the United States, he shoots. The hypothetical that i have im going to stop you there. Y time that the u. S. Officer is in the United States that thats that satisfies the question . No, it does not. And because the injury occurs in a different jurisdiction. Proximityens in close. This culvert does not delineate where the United States ends. That is true in a lot of borders. And the importance of that, the United States exercises some control into the culvert and in the testimony to congress, they project outwards does the government of mexico agree with that . The government of mexico agrees their sovereignty is violated. Does the government of mexico agrees that the government of the United States extends beyond the Mexican Border . The control projects from our physical border as michael fisher, the head of Border Patrol said, outward. Not the first or last line of defense. The government of mexico has not addressed. As a fact, the Border Patrol space on the board and projects authority. I take it everybody agrees that if there were a texas state trooper who was involved in the exact same conduct, that trooper, you would not be able to sue that trooper. O why is it that bivens is thought of a more limited remedy in 1983, why should you have this situation where you can sue the federal agent but not the state agent . In all respects, except for e victim, this is a bivens case, an officer exercising unreasonable force. And a victim injured. Is where he fell and where he shot, does it take it out of his right to a bivens . I waited for the rule being discussed, but as Justice Kagans question indicates whether or not there should be a bivens action. Since 1988, this court not bivens d a sing the action. Why doesnt that this is one of the most sensitive areas of Foreign Affairs where the political branches should discuss with mexico what the proper solution ought to be. This is and extraordinary case for us to say this is a bivens ction since 1988, but we havent created a single one. There is no alternative recommend did i hy for the family. That means it is a critical area of Foreign Affairs. Were not attacking the policy of the United States government in regards to mexico. The policy of the United States is a Border Patrol agent should t use Excessive Force unless there is imminent peril. If theyre not going to get compensation from a special bill from congress or by executive agreement, the policy of the United States is that a serious injury goes unaddressed. And if we assume that the officer was completely at fault and there is no defense and we dont know what the factsr but if we assume the facts most favor apply to you, there should be some relief. Isnt this an urgent matter, separation of powers for us to respect the duties of the principle rule that the executive and the legislative efforts with respect to Foreign Affairs . It is an urgent matter of separation of powers but it would be the opposite. The fact pattern is that officer mesa grabbed one of sergios friends and grabbed him by the collar. Had he shot that boy, there would have been a bivens claim. And the only thing the government can say it implicates Foreign Policy and National Security, in that situation, then you have taken away claims for the Largest Police force in this country in the area that they operate. The location of the boy in regards to being shot from the United States should not counsel hesitation. You want me to put down in my notes that the location of the boy is irrelevant. Is that what we are going to put in our opinion . You start in your opinion that if all of the conduct happens inside the United States and there is close proximity crossborder shooting, the Fourth Amendment constraints on deadly force apply. To hold otherwise, Justice Kennedy, is to prevent bivens in the border, north or south of the line, if National Security and Foreign Relations is affected 30 feet across the line and officer stands in the same place and shoots sergios friend right next to him, then you have one bivens case. I write the opinion just as you said it and only 30 feet away, the victim, then the bivens action and the Fourth Amendment apply. But if its 30 miles away or 300 miles, they dont . Ok . Thats what you want me to write. The next sentence has to have the reason why i drew that distinction and thats what people have been looking for. If there is anything else you have to say, i dont think you do, but if you do, this is a good time to say it. The close proximity takes it away from your analogy. That isnt the only reason you can give. I had a few problems with applying it across the board, maybe i could. It took away from the problems that Justice Breyer had. Of course you cant say that. So what is it i can say . If i understand your question, Justice Breyer, the reason that b inch vens is allowed with all of the conduct that happens in the United States is because all the conduct happens in the United States with the drones. It wouldnt be to say if the Border Patrol agent shoots allh, west and east with due respect, its not the same with the drones, because there is no proximity or crossborder shooting. There is a drone that goes someplace else. What about a different approach because you suggested, do you have anything to add. All the action took place in the United States but took place at the border, not beyond the border, at the border. We have a border that is the river. And there is a line down the middle of the culvert but it will be maintained by the United States and mexico jointly and there are many documents including the treaty you know the famous treaty which refers to the river as the border. So it has not taken place in a foreign country, its taking place on territory. Ou started talking about the curtilage. It stuggets a house and then you talk about tandem shots going off somewhere. Now if i want to s