when this case was st argued to this court two years ago counsel for respondent and counsel for the united states were both asked whether petitioners would have a been dramedy if sergio hernandez had been standing on u s soil when he was shot and killed by respond both said yes the question before this court today is therefore whether a begins action is 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 i fortuity of where a victim is standing does not in fact trigger any of the special factors counsel and hesitation identified by respondent or the united states most importantly it is difficult to see how foreign relations could be a special defense claim had sergio been standing just a few feet away moreover the government's assertion that permitted petitioner suit would dramatically undermine u s foreign relations and diplomacy is the law by the long history of successful tort claims against federal law enforcement officers including as in the apple on cases in which the victim was a foreigner harmed on foreign soil the court awarded damages and the diplomatic sky did not fall nor does actually territor petitioners here it is begins or nothing neither respondent nor the united states seriously disputes that the westfall act pre amps the texas tort remedy petitioners could otherwise 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 in a bossy when i explained that there are powerful reasons to retain divisions as a remedy for individual instances of law enforcement overreach and it goes to why even though sergio was standing on mexican soil when he was shot and killed this case presents the exact kind of law enforcement overreach that abbassi how the mind i think a posse is a useful place to begin our analysis because in that case not only did this court suggest that there were still important reasons to retain divisions in law enforcement context but this court itself actually preserved and retained one of the plaintiff's defense claims this court returned to the district court rather than dismissing individual instances of law enforcement overreach are at play in those contacts the damages action after the fact will usually be the only possible legal recourse it's going to be difficult to prevent claim in advance nd the deterrence effect what this court has called the poor purpose of divisions which is to deter individual officers could quite easily be lost in the absence of remedies in the law enforcement context unlike in a boss you are as this court stressed there were alternative remedies available to the  plaintiffs rd the historical tradition that we know in our brief where federal courts and state courts go all the way back to the found in routinely imposed tort damages against federal officers act in alter of europe's without suggesting there were separation of powers obstacles to doing so without suggesting that there was anything wrong with the federal courts providing a cause of action in those cases as opposed to i think where the inquiry historically has focused immunity are there reasons in these cases to actually hold the defendant officer harmless not because there is no cause of action but because he was acting in good faith or under the modern standard because he did not violate clearly established rights of which a reasonable officer his position would have been aware they are in deep 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 i think if the questions in federal court justice alito i think it would depend on diversity i don't position and divisions the government's position in defense itself was not that the federal courts should not be recognizing these remedies in any context rather the government's position in dividends was that new york state tort law would have provided an adequate remedy justice  just against the federal officers defendants and divisions but also had they been say new york city police officers that new york trespass law would provide the remedy to quote from the government's brief and did is a federal remedy should only be recognized when it is necessary and the argument in defense was simply as to whether a complimentary federal remedy was necessary to vindicate the plainest th amendment rights given the existence of new york trespass law given the government's argument that new york in that context was adequate to vindicate the plaintiff's th amendment interest and this was the common law model and i think we are all familiar with henry hart's dialectic where professor hart suggested that the original understanding was that even federal officers would be principally responsible to could judges in state court there was no general federal question statute your reference to the government's position in bids that was almost fifty years ago in the interim there's been a fairly dramatic change in how we approach things as implying causes of action both under statute and under defense and it's been forty years since the last time we recognized a cause of action indifference so i think you need to sort of move up half a century and explain to us why we should take a year or your approach today regardless of what the the prevailing legal regime was in seventy one i take the point mr chief justice and if i may offer two points in nine cases this court has decided since carlson which the government points out at page eleven of it's a new case brief where this court has had the opportunity to recognize have been dramedy and has chosen not to do so none of those involved a claim that an individual federal law enforcement officer was acting alter pyrrhus 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 none of the suits or at least not all of the cases even involve claims that we have had a common law parallel and so we certainly recognize that this court has been increasingly skeptical of judge me cause of action in general and of defense in particular our point is simply that that skepticism has been reserved or at least focused on categories unlike this one if pivots were a statute in effect we would apply the presumption against extraterritorial application and the other side argues that therefore particularly constitutional provisions apply after 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 whether the extent to which the constitution applies overseas versus what congress would have intended but even if this court nevertheless believes that it's appropriate to map on that presumption i actually can kill bill helps us more than it hurts us because in kio bill this court said there will still be cases in which the the underlying conduct of the grab the men of the plaintiffs complain it involves activity that touches concerns us soil with sufficient force to displace the presumption against after territoriality and so i think this court could assume without deciding that actually territoriality is a special factor for purposes of divisions and still say this case is different because respondent was standing on us soil at the time he pulled the trigger that is touching and concerning  no th amendment protection for a mexican national whose home was searched by dea agents operating in conjunction with the mexican government i think this court itself suggested in hernandez twelve years ago that the th amendment question in the context foreign national injured abroad by an action in the united states i can think of a lot of cases that that's going to encompass right not just cross border shootings but all kinds of torts that can occur transnationally which you capture all of law enforcement nature of the conduct at issue here and so many of the hypotheticals that suspect you are thinking of your honor that i'd be thinking of for a context in which a u s government person in the united states could why would it be limited to law enforcement as opposed to other governmental functions that happen here but happen to injure persons abroad because i think it's in the law enforcement context that there is the strongest argument the strongest appeal to the historical tradition we know 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 federal officers were so important there are many examples i could find none of combat operations for example where state courts were imposing tort remedies against federal office so you'd have a s you draw a line there and act actively in this case and say that any any actions involving military operations diplomatic operations or any other operations government are not there's no bivins action there it's only for law enforcement whatever that means operations so now obviously i wouldn't decide more than is necessary but i'm ok but that's what that that's what i thought you'd say but all right so so where is if you're not willing to draw that line where is it plausibly where would you have this court draw the line was there frankly i thought there are decisions this court has handed down in the bivins contests that i think don't necessarily are necessarily consistent with this whole tradition but it has still left open law enforcement conduct just of course it and it's not just this court that has done that congress in the one thousand nine hundred and seventy four amendment to the federal tort claims act went out of its way to expand the liability of the united states for intentional torts committed by law enforcement officer  lists lands and it's only reasonable 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 sort of a more convincing answer i hope to justice corset which  i do believe that it is relevant to the claim and the strength of our claim in this case that the respondent was according to the plausible allegations in the plaintiff's complaint violated not just the constitution but his own departmental regulations that we have not just a law enforcement shooting at an american and the border in this case is rather special it's not just the line it was the river and it's administered by an international commission dog ok i have about six wonderful reasons that persuaded only me ok the i believe you our side when you thought we're taking this case on the assumption that the th amendment does apply and the only issue in front of us is not that but  situation that i thought was the issue and at some point i feel try to answer that question but i'd like to hear what you say about that i agree completely justice briar i mean i think that a bossy i don't think a boss i don't care whether you agree or not all i want to hear is your argument or on assume i don't want to repeat myself there on the assumptions i gays what is your argument that this is not an extension that this is not special that this is not an unusual thing i like your argument or argument is st that this court has long recognized that claims against individual law enforcement officers for excessive force are what the th circuit called classic claims i believe there is an opinion by then judge kavanaugh referring to as the core of bivins to bring a claim that an individual long course an officer was acting alter pyrrhus so just as prior i think there's at least an argument that this might not even be a new context but even if it is a new context the government and respondent have identified three special factors that they argue counsel has attention st they say it's because this case implicates foreign relations and national security as we suggest in our briefs we don't believe that follows simply from the fact that sergio hernandez was standing on the mexican side of the border as opposed to the american side of the border the government also argues action territoriality is a special factor as i think i hope i explained in response to justice kavanagh's question we don't think action territoriality is implicated here because this case touches and concerns us territory with sufficient force to displace the presumption and the rd after the rd special factor invoked by respondent and the government is congressional action and i think in that context there is no example of congress specifically trying to preclude claims like petitioners here and the only time congress has ever spoken to the tort liability of again just of course it's this is where we get our test from individual federal law enforcement officers congress has expanded that wide ability consul just to go with the st of the things you mentioned the international relations there has been diplomatic correspondence between the mexican government and our government with respect to this this incident the border patrol has conducted an investigation and it's reached the determination that the action of the agent was not contrary to policy and you would have the courts look into this of providing a bit of ins remedy they could well come to the opposite conclusion so that in terms of our relations with mexico we'd have one agency saying this was not consistent consistent with policy we have the court saying it is and that is the type of thing that it makes it at least a new context you can say it doesn't make a difference but in terms of our relations with mexico they've got two different things and least with respect to foreign relations i thought the country was supposed to speak with one voice so i do i certainly agree that that the country supposed to speak with one voice mr chief justice to two points in response the st is of course if the government continues to believe and respond continues to believe there would be appearance remedy if sergio hernandez had simply been standing on american soil it's not clear to me why the same concerns wouldn't be equally present that is to say by that logic any time a u s officer harms any foreign national even if bivins in itself it begins had been a foreign national it's not hard to imagine so miller diplomatic  correspondents following from that incident they argue it's not merely the foreign policy implications of the chief justice of benefit but the border security is also national security in some respects and that that's a different context lightly different from the foreign relations can you address absolutely and we certainly agree that border security as a policy is an important policy of the united states that if we were here challenging one of the government's border patrol policies this would be a different case but i think it's important to note back to the chief justice h question that the dispute here is over whether respondent violated the very government policy at issue that is to say we are not challenging a policy of the government we are claiming respondent himself did not comply with that policy the government's untitled  determination of that question we don't think it is the kind of policy to which this court has historically accorded deference in the foreign relations and national security sphere if it's an after the fact factual determination about a s provide the basis for a federal claim if that were if you put the th amendment aside but the action was contrary to borders border patrol policy with that provide the basis for a federal claim for a damages suit of course but yes but it is our position justice alito that is to go back to my colloquy with justice course it again the reason why we believe this is in the heartland of bivins not was down the concerns that the chief justice has referred to in that justice cavanaugh alluded to is because here we do not have a case where the claim is that it particularly policy of the states in the foreign relations or national security sphere was the source of the injury to the plaintiffs i'm here arguing is that the policy is actually coextensive with the constitution and so that if we are correct which we have not yet of course that chance to prove i respect actually who is this court that said that internet is one and i think the reason why is because there is some uncertainty in the lower courts as reflected in the th circuit's decision in the rodriguez case the original three judge panel decision in this case there is someone certainty about just how broadly this court's decision in quito was in which the court said a mexican national could not invoke the th amendment to challenge the search of his home the warrantless search of his own by the office or there's uncertainty about how far that sweeps is that still have the same force now mr burdick there is one part of the cheese question you didn't answer the government speaking with one voice when you said the government should but he's posited to big difference here the government the executive has said this was not a room action this security guard they've concluded on based on what we don't know that this officer was being attacked and that's why he shot the allegations of this complaint or to the court has never suggested that every single thing the united states says that has any bearing on any possible sliver of foreign relations is the kind of foreign policy where this court has said that the government should be allowed to speak with one voice and so i think there's a meaningful distinction between a policy that is x and t shape and conduct of our border patrol officers of our government officers where educational decision might call into question the policy and a context where the dispute rises and falls on whether the government's own policy prohibiting excessive force in violation of the constitution was violated that is to say it seems to me that there is merger well what if mr ruddock you had you have this one incident and the executive branch had a very different view of what happened then the courts did and court said there was unconstitutional conduct here it's the use of excessive force but the executive branch thought he did everything by the book and  he isn't subject he shouldn't be subject to any action even a disciplinary one and then the court's decision contrary to that let's say mexico once to extradite the border patrol officer and that puts i would think the executive branch in a quite difficult situation should and mexico is pointing at a court judgment but the executive branch thinks that there is no earthly reason to extradite what happens ry of whether there is sufficient evidence to sustain a criminal indictment and to warrant extradition under the terms of the u s mexico extradition treaty i think that's the key point here is that on the government's logic all it takes is the government showing up after an incident and saying oh there are some reason why we don't believe this was unlawful or there are some foreign relations implication to our judgment holding us lawful and if it's after the fact that won't matter would still preclude difference well that's as i think a fairly unsure characterization of what the government did in this case according to the representations it was a fairly thorough investigation and maybe it's not me at the end of the day maybe a jury would come to a different determination than the governmental investigation but i don't think that's fully responsive to the international relations concerns that's what even if not fully responsible it has to be done so it's simply a new context for the bit in question that that may well be and i think our submission is simply that the question this court has a policy choice that does not actually give rise to the kind of deference this court has historically accorded right that's what we're about because it's not clear how that wouldn't potentially if not in this case swallow the category right that is to say if a bossy meant what it said when it said there are powerful reasons to retain bivins in the law enforcement context we think that's true mr chief justice even when the government has other other equities at stake because again the key for us is when  court is saying an individual officer has acted altar of your us it is not the same thing as saying the government's policy is somehow inconsistent with the constitution it's not the same thing as saying we are nd guessing how the government has chosen to conduct border patrol policies is simply saying this one officer went out of bounds and that's the kind of claim that was historically available at common law is the kind of claim congress preserved in the f c c amendment and if i may i think the the point of the bosses at the end of the day is to draw the distinction between the kind of claim this court rejected which was a high level challenge to post nine hundred and eleven dollars policies formulated by the attorney general and the f b i director and the individual law enforcement officer and patient overreach thank you foreign claims they've addressed it again in the alien tort stand too and they addressed it again in westfall that carved out an exception for a bit of the new context in this case is not only the trans national aspect but also the utilization of the th amendment to 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 that are involved in this case intruding on the separation of powers work congress and the executive at is their domain national security and border patrol is national security the border patrol 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 to nominate virtually not to create a damages remedy and if the damages remedy is is in charge of foreign affairs there's an actual dispute in this case as mexico would like a remedy and the united states is arguing against a room in mexico if we can go we would create a chilling effect as to the border patrol agents and conducting their day to day activities but i don't know not only a chilling effect you would be the lower court chilled he knows he can't do that what makes a chilling to tell a border patrol agent don't shoot indiscriminately the children are standing a few feet from the border we what this doesn't involve a mexican defended mexican law or mexican courts it involves a u s defendant acting on u s soil pulling the trigger on u s soil and subject to that does never changes no matter what we do here that's correct but in this case you're asking for the petitioners are asking for an extension of the constitution into a foreign republic which might soon here that it is extended be assume the th amendment applies my understanding and so we know this place by picture it's a covert it's a big culvert like here to the end of the room and there's a bridge and across these bridges hundreds perhaps thousands of people walk each day on their way to work or on their way home now a border agent who standing near the bridge picks up a gun and shoots one of them if he's crossed that imaginary line in the center of the bridge i take it you agree that you can bring a bit of inspection that's correct and if he is an american and on the other side you agree he can bring a begins action and i would be correct you ok so the only person who cannot bring a bit into action and the porter agent has no idea whether he shooting such a person is someone who is just on the mexican side of the imaginary line on the bridge and when he shot the liberally or rogue leader whatever that would be correct that's it  problem we would like we ordinarily have such actions the mexicans want they want the action so what's the special problem it would become a matter of line drawing where with no no not lying drawing there's no line growing problem we assume the line drawing problem may come in as to whether the th amendment applies but here we're assuming it does and assuming it applies what's the before on the th island is that an extension if it's not it's within the united states you know i have to stand that and this is on the other side of the line also by the way it was at seven o'clock in the evening in fact the seven o two and there never has been abridged into action brought at seven o two but there's never been a byzantine action that involves a trans national shooting up i got that point all i am saying is why is that different in terms of a problem cause than the fact that it was seven hundred to fifty nine on the th island of hawaii you got my point i do good  what is it's it's known as my point i want to know you're a cancer i have to go back to being different in so much is that it is trans national and it what you've said that all i'm asking you is why that makes a difference where it's on a bridge in the culvert i won't repeat myself but i went through every factor i thought that i could seems to me very very similar and i just don't understand it so far what you've said is it will freez the border patrol do which i think good i don't think there's an american who anywhere in the world who wouldn't want to stop the kind of action here so that doesn't seem in a factor cutting against and anyway he can do it if it's an american and he doesn't even know if it's an american if there was a remedy to be fashioned that would be for congress to decide but nd inclusion and my answer my question is why because i'll be able to weigh the costs and benefits of the actual remedy itself the limits of the remedy the parameters of the remedy for the courts to be able to provide guidance to the lower courts there would be very little guidance to the lower courts i don't understand your answer you can't shoot and on our juvenile play and the remedies limited is that that that's the only thing that a court would be deciding whether they're truly was cause or no cause for the shooting but then when the determination would be on an ad hoc basis creating instability in the lower well what's the greater instability when you already admit that there has been a that is 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 don't see where the greater instability  arises in that situation with the instability would rise because of the the actual areas where you are and it's a national border with the border patrol providing national security in the so why what you're basically saying has been shouldn't apply ever against a border a real border patrol who just stands there shooting people both on the us side indiscriminately takes a gun and just sleeps problem i might think we should or might think we shouldn't but i might think we should but i certainly would say there is a problem but once we say the th amendment is there in just the same way it is to fee on the other side at that point what's 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 on one side of the border or the other isn't to arrive at that at that point i hesitate i say well that's what we're supposed to find here under the statute and and what is it assuming they do go do not foreclose it out then there would not be a well if there is no difference and that's the end of it isn't it because kennedy says look he says you've got to find he's not talking about the th amendment he's actually not even thinking about that possibly i soil is not constrained by th and larger for your point was the foreign policy implications are triggered when it's on the other side of the border and that's why we give significance to the border but i want to press on that because wouldn't there be foreign policy implications even if the victim were a mexican 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 a incident inside the united states with a victim who's a mexican national absolutely just the way they were in this case the only thing that the extradition in the damage damages  for by the mexican government then the u s government deciding or opposing their request for damage so it's been forty years and there's been no extension of billions beyond the trilogy that this court has has outlined the presumption against the extension provides a lower court stability versus an ad hoc application of the law should we think about the lack of alternative remedies mr of logic to mention that there's just no remedy at all which is unlike not all the bivins cases but certainly some of them but when you look at the marriott and of special factors including the separation of powers national security foreign diplomacy public policy and projected cost i think that that creates quite a different a different picture of that and better life for congress in the executive to decide those issues and pacifically congress to balance the public policy the limits of the law and to provide guidance for this court to interpret the actual statute that they would  i believe the new context of this nature in a transnational shooting should be dispositive an injury to a foreign national on foreign soil is untenable because excessive force that relates to a seizure as we've discussed is covered by the th amendment and it's not a suit substantive due process point would require an extension of boumediene to a foreign country where the u s maintains no jurisdiction whatsoever whether de facto or actually it would create 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 it's very application the lower court have stood on this court presumption against the tension in order to provide the ability guidance to them in their decisions extending it again extending it trans national we would create i think i'm 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 two miles from the border inside of the area is a border patrol officer is acting within the scope of his appointment it's very important he's trying to find people who have crossed the border it's in the united states but this is border patrol work this is border work this is border security work where you can bring of exactly if he was actually the rogue announcer acts acting outside of policy which is not present itself here i mean if if if we are is is on the u s side of the border still of evans action inside of the united states border correct ok so a lot of foreign affairs concerns are present there so to a lot of national security concerns if we're saying th border security is a facet of national security right correct ok so then the question is why when we just moved three inches over there's a different answer that i think is the question that many people have been asking you that's right and i believe that the borders real it's a real line and it can't be extended the constitution cannot be extended into a foreign country usa it is a realigned and you know one way to line draw is find a real mind i suppose but i guess what you know usually the what would the analysis that we go through in a bevan's claim and i think that this is the analysis that the government wants us to go through is to ask about are there special for foreign affairs concerns are there 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 three inches on one side of the border versus three inches on the other side of the border or even a little bit away from the border but very much involved in border security work if it keeps going extending into mexico then there would be no wind it would just keep going and going to be all of what is it c action in the united states so unless this is a very far reaching bullet i don't think so that's correct and that was the hypothetical i gave you regarding a drone pilot in colorado who 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 would occur in syria thank you counsel may 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 business purposes and several special factors coun injuries abroad taking a step back abbassi and other decisions have made the lower courts markedly less willing to imply cause of action for damages if this court extends been here on these facts it will threaten the reverse that trend by undermining this court's consistent message about the importance of caution and judicial modesty in this area to turn to the st of the three special factors the foreign relations with mexico i don't think it's difficult to figure out exactly why we think congress might pause as it has in one thousand nine hundred and three in the n t seeing before extending the image of liability here 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 council 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 are still well the problem is that the allegation here is not about their meeting and talking about policies it's about real actions and i took a look at the a week the former like the c p b but others who told me pretty persuasively and extensively that the border patrol might be a bit of a less and that disciplining is at a minimum here investigating except or 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 five incidents of use of force with firearms and so school year twelve there were fifteen last year in fiscal year eating in that's a more than seventy percent drop 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 my bottom line point though is all of that is a subject of legislative debate there is a body that can consider these kinds of questions and tailor a damages scheme to whatever the facts on the ground are but that's congress that would have been true in deference itself with someone could have said there are all sorts of things that troll the f b i and we shouldn't extend bevan's but we did because there's a fundamental belief that unconstitutional action there's that stem from the a properly doing other thing across the border required a remedy i just saw the way or if i may they're very different and i want to be really clear on this with the court yes it is certainly true th courts for a long time applied the same common law rules for trespassing the rest to federal officers and they applied to everybody else and that was perfectly fine under federal common law up until erie and it was perfectly fine under state statutory in common law right up to the w act but that's not what the court was doing in villains and that's not the way it's conceived to begin its leader cases it was implying a special rule not for everybody but for federal officers directly under the constitution in the absence of any statutory authorization from congress that's a very different animal from what state and federal courts were doing for a really long time some point here your three reasons you had three reasons and i hope you leave you enough time to go to the same question i've asked fifteen times look isn't this all a problem for the th amendment but if you assume the th amendment applies what's the added problem after all the th amendment suppresses evidence so now we're not going to change that are we and if the th amendment applies suppressing evidence will still happen when there is a violation and after all that's arguable in congress it creates a mess in the court ok so what special about this so i'll try to get through a couple of things really quickly one the friction with mexico i think is pretty obvious clear indication the language that it wouldn't pick up an injury the cross the border and it seems passing strange that if the express statute didn't get get it an implied cause of action wouldn't and even if you disagreed with me on that then i think you'd say look congress has made judgments in this area called off all liability in the f t c a for things that happen across the border injuries abroad and you couldn't get it if you were a state office on in one thousand nine hundred and three so least as far as we can tell in the judgments congress has made it has recognized that the border is really significant and why mr will because when you're injured abroad you don't work out the damages lawsuits you work it out through diplomatic and administrative processes and that's always been how congress has done it so i mean it i think i need to somebody to explain to me a little bit the kind of foreign affairs concerns that you're worried about and you know it's easy to just sort of wave your hands and say foreign affairs when there's been a cross border shouldn't but i think it would help me at least to have some specifics about what kind of situations you're worried about i mean here the asli mexico would prefer that a bit of an action be be given and that's not dispositive by any means but i guess i'm wondering what is the problem i guess the the problem is that the united states and mexico actively discuss incidents of the border both specific incidents in general policies right now as they have for years and for instance revised to do so and as they did in this case even ensuite was going forward the buildings claims does not seem to have prevented mexico in the united states from having discussions and negotiations about this very incident did it that's why i put the question under abbassi isn't book can you show that in every case this is always the kind of i'm looking for any case right and what i'm saying is take this case we disagree with mexico with a pair of cases in one of them we thought the agent acted on lawfully in the other we did a very thorough investigation it's not in the record  reviewed all the evidence we have you talk about it we concluded he hadn't acted on lawfully mexico believes that we're wrong about that he believes we are extradite him there are get our crack it may believe as a result of this incident that we're not taking seriously our policy at the border that's exactly the sort of thing that we have an ambassador a foreign minister we've state department and they have when they talk about these issues again there's a i'm still looking for you have you in one state of the world you don't have a bevan's claim in mr hernandez's position in another state of the world he does have a claim how does that interfere with in ited states is foreign policy just click and 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 won't say how was your representation credible you told us last time the officer didn't do anything wrong and your own courts potentially even your supreme court told you were wrong i think it does directly undermine the credibility of the exact branch and working with a foreign government but even if you thought i were wrong you still know  united states then say you know we live in a country in which courts plan important role in determining whether conduct is lawful and that started to bear assessments to the united states or to the executive branch it of course courts play a role but the role under obasi is a limited one where if there are special factors that counsel hesitation the courts as we leave it to congress even if you disagree with me on foreign relations you still have clear signals from congress in terms of statute is passed and you have clear extraterritor know from schapelle that you with the special factors in aggregate so the question just is across all of these things is there enough here to think that we ought to pause before we judicially imply a cause of action and we ought to leave it to congress and i just think looking at the balance there's clearly enough to say there is a body that can address these kinds of on the grounds concerns at the border but it's congress it's not the courts and i guess the last thing i'd say is that you know the th circuit looking at th s look facts are tragic this court said last time it's a heartbreaking loss of life but said this is not a close case under abbassi i disagree with respondents counsel about some of the hypotheticals three inches inside of the line or ten miles inside the  line what would be the case there i think if you're to take the easiest hypothetical you've just foreign nationals going across the border right certainly grant that a couple of the special factors are going to apply extraterritorial in congressional action i think you've still likely got foreign relations and national security concerns i think probably best answer is there's not a bit of action and how about ten miles from the border but doing border security well i think maybe you've still got foreign relations and border security but again whether or not you agree with us on that this is the easy case for all of those special factors are triggered to put in this case in the broader context because i think it's important to understand how we got here historically the whole way that the tort liability regime worked for government misconduct was that this court and state courts look to existing common law causes of action and focused on community 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 rejected the argument that there should be any context in which law enforcement officers because of the frequency with which they interact with average individuals because of the nature of 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 justified a more narrow or qualified kind of immunity for those most likely to come face to face with private citizens distilled to its simplest the government's position in this case is that officers in what is self described as the nation's largest law enforcement agency should have a functional absolute immunity at least where foreign nationals are concerned and our submission is that that is not consistent with how this court has always understood the relationship between cause of action immunity tenses in this context it is not required by any of this court's bivins decisions it does not abide by this court suggestion of basi that there are strong reasons and powerful reasons to retain difference in this context and it would eliminate the one deterrence that is meaningful you vailable to ensure that officers in the nation's largest law enforcement all agencies are complying with the law  underlying conduct touches and concerns us territory with sufficient force to displace the presumption if ever there was a case your honour's where the underlying conduct touched and concerned us territory with sufficient force it's when the us law enforcement officer standing on us soil uses lethal force thank you counsel the case is submitted