your argument first this morning in case fifteen one eighteen hernandez versus mason mr hilliard mr chief justice in may please the court fifteen year old sergio hernandez was standing in mexico barely across the border and threatening in an armed when he was shot and killed by u s border patrol agents standing inside the united states this tragic case is one of the most simplest extraterritorial cases this court will ever have in front 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 don't mess to 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 we're all five of those necessary in your view for there to be a difference claim as anything else necessary is that exactly the rule that you want us to adopt justice kagan the rule that we're asking this court to adopt to avoid the anomalous result when the u s domestic officer on u s soil shoots and there's no constitutional constraints is that when there is a cross border shooting involving a federal law enforcement officer on u s soil and the resulting injury is in close proximity even fourth amendment constraints on that officer should apply and that's  that's a task that surprisingly fits the exact facts of your case it seems to me that the principles you're arguing for can't be so narrowly confined and for example how how do you analyze the case of a drone strike in iraq where the plane is piloted from nevada why wouldn't the same analysis apply in that case the chief justice if it was a drone strike i'm assuming that it was it was probably military i'm assuming that there was cooperation with other governments here in our case so if this were in your case somebody from the state national guard or whatever then there'd be a different result  well if it was a state national guard i'm not sure that they would be shooting across the border i mean you can imagine a situation that is not precisely like the facts of your case with military officials may be involved i can imagine that scenario but that's the purpose or the intent of this rule the purpose of intent and intent of our rule is simply to involve this court in addressing an ongoing don't mess dick routine law enforcement issue along and we also reckon i understand that but i'm trying to see what the logic is other than yours happened to involve the nonmilitary actor and my hypothetical involves a military actor under a begins analysis i'm not sure that that makes a difference maybe there will be some defenses once you recognize the cause of action that have to do with the military operation but i'm not sure why you wouldn't have a cause of action under your theory our theory is meant to address it to address the ongoing problem along the southwest border that has resulted in at least ten cross border shootings and six mexican national deaths in every time the constitution cording to the government turns off at the border even though all the conduct happens in the united states i recognize that under the military situation there are orders that may be being followed here we have a rogue officer who actually is not following his own federal regulations which says you can't use deadly force without imminent peril i mean i don't question the question the question that we it's 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're delighted with because you when that isn't the problem the problem is other 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 of people in our country set off the drone that's what the chief justice brought in and are we in deciding for you a deciding as well that anyone who suffers a drone strike can come to new york and bring a law case are we deciding that the matter is unclear so that when the proper authorities get advice from their lawyers over in the executive branch they have to say we're confused ok so what are the words that we write that enable you to win which is what you want and that avoid confusion uncertainty or decide these other cases the proper way that's the question you've been given three times and i would certainly like to know your answer just as part of this this rule does not involve drone strike and i do not intend to suggest that it should this involves only that part of the question is what words do we write so that this opinion doesn't affect the drone strike which is what you seem to want again so the the rule that we are suggesting has a close proximity element to it it has all of the at conduct of the united states officer on the united states soil shooting across the border so  sassed point by point and ask you whether it would apply in a situation where each of those factors was a little bit different so the your client was fifteen what if he was nineteen would that be  no justice alito of course it wouldn't be different but the sudden rule would apply there the rule would apply if he was nineteen standing unarmed in mexico when he was all right what if he was armed but he had his hands up again we're not asking for a win here we're simply asking of the constitution applies and that he can take in the defense of self defense by the officer can happen at the trial court what if he wasn't in this culvert but he was two hundred yards beyond in mexico would it be different that it may be under the boom it may be an element of nature of the site so this culvert is unique if if the court i would invite the court to look at exhibit one eighty eight of the petitions exhibit which appendix which is a picture of the covert and what if the officer was not standing in the united states but actually ran a short distance across the border into mexico that would seem to be worse wouldn't it but would you say the rule would be different there justice alito it may be because the first the border patrol agents are strictly prohibited from crossing the border like federal these are strictly prohibited right so suppose he violates that will into mexico and then he shoots the right the mexican national right it may not the rule would not apply but it doesn't mean that on the committee in standards that there's not constitutional protections did he not know where the line was did he intentionally go in hard hot pursuit was he called over by a federally the specifics of the facts would affect the decision of whether the constitution applied under or under our proposed rule as mexico pointed out in its brief there's been two hundred forty three shootings along the border with border patrol using deadly force ten of those across the border and i understand that but as justice prior said we have to articulate a rule that applies we can't just say that in that  on the particular facts here there was that mr hernandez's to the petitioners have a habit of its climb and the states a violation of the fourth amendment we have to have a rule to that can be applied in other cases and i don't know what the what rule you want us to adopt other than to say you when of course that's what you or you need to do for your client but you need to give us a principle that  is workable this is your rule that we if the u s agent commits on foreign soil an action that would be a violation had occurred within the united states that there is a defense claim and there the border patrol is forty four thousand strong along our southwest border and they only interact with mexican nationals we've had ten shootings across the border so though we might get the w it will at least not turn off the constitution m well your rule would be the same if this was the first time it happened if it was one person and the other facts were the same right my rule may be the same but my response to the question wouldn't have as much meat on it because we're here after many of these shootings have occurred and we're here because 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 let you or i think that the boom boom of the end made clear justice ginsburg that aliens abroad have constitutional rights depending on whether or not there is a after the evaluation whether functionally the constitution should apply this court has that was dealing with a vs but the court did a full survey of the entirety of the extra territory extra territory cases and they said there's a common thread and what this court does is it looks at where we sending this concept where are we sending the constitution and what are we asking it to do and i acknowledge and recognize in this court has already said it's not a worldwide constitution but it has gone abroad many times depending on what it needs to do and what it's being asked to do beings i think you said what your rule is in a pretty clear way you said essentially it's a border area and the shot came from the united states so that i take it as a rule so it seems to me that the harder question is actually but there are problems there might be problems in other situations as well and there might be problems when u s officials go into a foreign nations territory so so that leaves me still uncertain you're saying as a practical matter this is where the incidents are but is that all you have as to why this is your rule why the border cases are different so  or are used to plug in the rule that we're asking for for example the the media factors or nature of the site status of the person seeking the constitutional protection importance of the right and so those factors we plugged into this rule to address not just the specific problem but in reliance on the median opinion which said there's a common thread on all these cases and it's a functional application we took we took the four elements of the framework of a million and applied them into our rule well but one obvious difference with my d n a is you're in there you were dealing with an area subject to the exclusive control of the united states here you're dealing with mexico entirely different situation mr chief justice i would i would acknowledge that you're right we are in many and is in cuba but it's a it's  it's basically as do many unrecognized united states territory here you have a u s law enforcement officer who's one hundred percent of his conduct is in side united states to jury and to sovereign united states property no other government could control his actions but our government and while inside the united states under his own constitution which is was going to abide by his shoes you know the hypothetical that i have may well put a just to stop you there so is it any time that the u s officer is in the united states that that's that satisfies the question under it and no it does not is because the injury occurs in a different jurisdiction right it's because the injury occurs in cults close proximity and this is a unique area again i would invite the court to look at exhibit one hundred eighty of the appendix which shows this culvert does not delineate were united states ins and where suit that's true of a lot of borders well and the reason that that's important in regards to the truth of that statement is because the united states exercises some degree of control into the colbert and as michael fischer said in his testimony to congress they project is the government of the united with that the government of mexico agree agrees that their sovereign is violated when the united states shoots bullets into their land and kills their citizens the question is whether the government of mexico agrees with your statement that the jurisdiction of the united states extends beyond the mexican border mr chief justice it was not that the jurisdiction extends beyond the border it's that that control projects from our physical border as michael fisher the head  border patrol said outward it's not the first or last line of defense and guard the government of mexico has not addressed his statement but as a fact along the entirety of the southwest border the border patrol stays on the border and projects authority out and i ask about an anomaly created by your rule i take and everybody agrees that if there were a texas state trooper who was involved in the exact same conduct that trooper he would not be able to sue that trooper so why is it that bivins which is usually thought of as a more limited remedy than one nine hundred eighty three i mean why should you have this situation where you can sue the federal agent but not the state agent justice kagan in all respects except where the victim lied this is a typical bivins case you have a u s law enforcement officer exercising unreasonable force  in the group of victims or at that are injured as a result of excessive force the issue is is where he fell and where he shot does it take it out of his right to a bit well  action we look for special considerations you've indicated that there's a problem all along the border why doesn't that counsel us that this is one of the most sensitive areas of foreign affairs where the political branches  should discuss with mexico what the solution ought to be it seems to me that this is an extraordinary case for us to say there's a bit of ins action in light of what we've done since one nine hundred eighty eight we haven't created a single one askin me there is no alternative remedy for the family there has been two hundred eighty three shootings and we know shootings with the border that that means that's a critical area foreign affairs we're not attacking the policy of the united states government in regards to mexico in fact the policy of the united states is a border patrol agent should not use deadly force without even a peril we're asking that when it's a rogue of the policy of the united states i suppose we can ask them if they're not going to give any compensation from a special bill for congress or by pickup by an executor agreement the policy of the united states is that this injury or serious injury goes unaddressed and if we assume that the officer was completely at fault and that there's really no defense we don't know what the facts are but if we assume the facts most favorably favorably to you there should be some relief but isn't this an urgent matter  of separation of powers for us to respect the duty to the principle role that the executive and the legislative have with respect to foreign affairs just a skinny i would say it is an urgent matter of separation of powers but it would be inside the united states and the only thing the government can say is it implicates foreign policy and national security in that situation then you have taken away begins claims for the largest police force in this country in the area that they operate the case that's one that we're going to put in my opinion you start with we start in your opinion that the load that if all of the conduct happens inside the united states and there is a close proximity cross border shooting then the fourth amendment fourth amendment constraints on deadly force apply to hold otherwise justice kennedy is is to prevent bivins in the area of the border whether it's south or north of the line because the reason for the i write the opinion just as you said it and it says what it's only thirty feet away the victim then the bivins action and the fourth amendment apply but if it's thirty miles away or three hundred miles they go ok that's what you want me to right now the next sentence has to have the reason why i drew that distinction and that's what i think people have been looking for and so just please if you're anything else you have to say i think you don't have anything else to say but if you do i would say this is a good time to say it my point is that the close proximity takes it away from your analogy just as briar my point is that if the all the conduct does that isn't the reason you normally can give opinion i had a few problems with applying it across the board i mean maybe i could but that once was to say because it took away from the problems that justice bro now of course you can't so so so what is it i can see if i understand your question question just as part of the reason that bit of an should be allowed if all of the conduct happens in the united states is  wrong there's a bit of there is it's with all due respect it's not the same with the drones because there is no proximity and there's no cross border shooting there's a drone that goes somewhere else to do something else what about a different approach and i just want your reaction because you suggested at the end of your brief if you have anything to add to it yes all the action took place in the united states but it took place at the border not beyond the border at the border the border is the river we have a treaty that says the river we also have a treaty that says there will be a line down the middle of the culvert but the culprit will be maintained by mexico and the united states jointly and there are many documents including the treaty of her you know that famous treaty which drawing a blank on the dollar go get us right which refer to the river as the border so it has not taken place in a foreign country it's taken place on territory that  mexico's but which is a special kind of cart used part of the started talking about the curtilage is there any other word curtilage suggests a house then you started talking about cannon shots going off somewhere so you did research into this now if i want to say this is a special kind of physical place what words do i use i think just by a viking if i if i can get you get your question in and the middle of the river according to the treaty of a is the deepest trench of the middle of the river and there's no river here anymore it's simply a flat culvert which is part of the we are responsible for maintaining at not by ourselves but with mexico and the reason we are maintaining it is because at one time the whole river and now the line down the center are the boundary and we don't want the river to jump its banks and create new boundaries so this is a boundary case now now you obviously explored that and then i think you gave up on it and so i would like you to tell me what you want me to hear about it so the colonel is cases were used in order to show that there is a subject of reason is about the way she and in regard to the close proximity requirement of our as a practical matter is the mexican jurist brief points out there is no practical way for the courts of mexico to review this conduct so i appreciate if i can get back to justice briar's  concern and in korea and that is if all of the conduct happens in the united states and as a fact there is some exercise of control right at the border then if the injury occurs in close proximity to that border then that's a rule that would both be workable and would take care not only of the issue of sergio hernandez but would also take care of the issue of the entirety of the southwest border of the united states where the conduct continues to occur even today can i ask you to go back to justice kagan is question if the if the officer here was a state or local officer would you be able to file a claim for damages in the united states in a federal court covert and this is never been decided what jurisdiction is in regards how i would not put that aside let's assume this is in mexico plainly in mexico would would you have a claim against the state or local officer and if not  issue sorry why not if it's a state officer who lives in i guess this is sexist right why couldn't the family sue that state officer under the theory that justice ginsburg raised which is if all the acts happened in the united states but were projected injuries to another state most states i think including texas but i could be wrong we have counsel from for officer m border is the border patrol with mexican nationals on the south and south or north side of our border it's generally the border patrol and there are no other questions i like to reserve the rest of my time thank you counsel i take up mr chief justice may it please the court the fourth amendment does not apply in across the border shooting of a mexican civilian on mexican soil by united states federal agent the petitioners claim for fourth amendment protection mexican officers that's quite a different case isn't it is however in for do go the person claiming protection was in the united states the act occurred in mexico here we have mr hernandez who was seized in mexico he was never in the united states the border is very real and very finite it's not elastic even a greater rationale for this court to extend those protections given the fact that the united states planned the acts in the united states with mr verdugo in the united states and the search occurring in mexico here the seizures in mexico mr nanda is is in mexico he is outside the sovereign territory of the united states there is no defacto jurisdiction of the covert in this area it's very dissimilar an indian had control who controlled the base and here we know that this culvert at least as far as paving it keeping it up spending many millions of dollars seeing that trade if it ever is filled with water goes across the ships or free etc is a joint effort of mexico and the united states so this is not just like a fence it is an area of two fences and between those two areas is joint exercise of border maintenance authority so i guess it's like nothing i've seen before but if it's like and nothing i've seen before what's the problem with taking justice ginsburg's approach and applying it to that kind of area where i m five hundred thousand people walk across it every day and it's a fair inference that perhaps that american citizens adolescents play in the culvert to your  the culvert if i may is not an area where anybody plays i've been there it's not an area to take we have to take as a fact here that the children were playing a jury could find to the contrary bob we have to take that as a fact the border in that area is still fine if you're a border patrol agent cannot step into the sovereign republic of mexico if  were to do that he would be subjected to a five year minimum mandatory penalty for stepping into mexico with his weapon he was riding a bike in the covert area through the wall is on one side he's on the mexico side ground where mexico ends and the united states begins i think the point that justice brier is making is this does seem like a very you know it's a sweet generous kind of case it's this liminal area i don't want to i don't know whether to call it a no man's land but it's this liminal area which is kind of neither one thing nor another thing so maybe it's that both countries maintain it maybe it's that it's sort of neither country whatever it is it's something very different from most areas where we know exactly whose jurisdiction operates and how it is very different but it's the center of the culvert that's the dividing line we distinguishes where the fourth amendment does or does not apply but what was distinguishing in that case your honor is that we exercised control over going tom yes yes correct be correct absolutely right and here the control is significantly diminished compared with the base at guantanamo absolutely correct but the point is there are other factors which we've heard for half an hour at least you know here that you know suggest maybe the fourth amendment should apply but the united states does not exercise any defacto jurisdiction beyond the middle we do two things we do at least have a commission that draws the boundary and with mexico also repairers the culvert and that's expensive so we do two things with mexico there and the fences are on either side of the culvert and it is a border and all and those things taken together either are or are not enough to apply the fourth amendment that's why i say at justice ginsburg's point and add the fact that mexico would like the fourth amendment applied they would like it applied in this case but they have never ceded in any of their jurisdiction beyond the middle of the culvert i understand that the maintenance of the culvert is a joint m safety do not shoot to kill that u s law and that he was law that governs the conduct of the border patrol police so i don't understand all this about mexico the united states law operating on the united states official who is acting inside benighted state this case has as far as the conduct answer is concerned united states written all over it and nothing about mexico the border patrol guard doesn't take his orders from mexico and i think it would be up to the united states to prosecute mr mason criminal if they were to choose choose to do so which would provide a remedy to the petitioners we arrest one or they wouldn't get any damages for the death of their fifteen year old son for their emotional suffering but i think i have  following up on what justice ginsburg are saying a more fundamental question which is i don't think you or the u s government is suggesting that anyone is condoning people standing at the border and taking potshots at passing back seconds absolutely not all right and yes there's a remedy criminal remedy for the government to vindicate its position but why should there be not be a civil remedy to ensure that border police are complying with the constitution the entire either under the fourth or fifth amendment but where would that would shooting potshots at the mexican citizens be shocking to the conscience it is shocking but where would the line apply the adhoc to tell any of the circumstances tested as presented by the petitioners would it be as far as the bullet can travel you know it would be in that or analogy it would apply when the action that violates the amendment takes place in the united states and where the victim is at the border and at the border is defined as including those areas that are jointly administered as part of a border set forth in the treaty we're administration means spending significant amounts of money on the upkeep of those border positions where if you want some additional limitation where both american children and mexican children might play and why do we do that because without such a rule the people of the united states who might play there too are not secure in from unreasonable seizures such as this one  i mean i made that up but he has quite persuasive and nella g s in the law with curtilage use cannon shots  jointed ministration and the purposes of before the men which is to protect the people we can say maybe american and maybe beyond from unreasonable searches ok there is a set of arguments limitation absolutely imitation no worry about groans flows directly from the media and carries out the purposes of the fourth amendment but it's a whole long argument what do you want to say well you honor i believe that if even if that the approach of taken as framed by your honor were to be applied it would still plunge the lower courts into a sea of uncertainty as to where that line actually ends i understand that your question is focused on the united states all of the u s factors here was u s officer in the united states subject to u s regulation if we were to uphold the officer while here under business what would be the practical obstacles that would prevent orderly administration of that rule to u s officers subject to u s supervision that's the largest or the the most profound practical obstacle i believe would be the application of the rule itself and not applying or not giving lower court a clear certainty a clear defined rule on which to apply mr taylor the rule is very defined if the shot comes from us territory and it had somebody in the colbert then there is a bit there's that there is and action that's a very defined role there's nothing unclear about that you can argue is that the good rule is that a bad rule is there are good reason behind that rule but it's a very clear rule but in areas of the united states that where there is a clearly defined border as we have here the fourth amendment stops unless the person seized in this case fernandez had some voluntary contact with the united states could i ask you briefly we haven't talked about yet a question on the qualified immunity point it seems very odd to me that qualified immunity would turn on a jurisdictional issue in most of our cases you're interested in the conduct of the the officer and whether that conduct was reasonable and like a precedence not issue about whether or not he can be sued by the particular are you aware of any of our cases where qualified immunity turned on in a legal jurisdictional issue in other words it's hard to say the officers conduct is reasonable so long as it turns out the victim you know  is mexican but it's all reasonable if the exact same conduct and it turns out the victim is american i'm not aware of any qualified immunity case like that i don't know of any case that fits that fact pattern mr cheek would you on the u s sorry the border good heavens crime if the officer standing in the same place shoots somebody who's just across the border no thing that doesn't make a whole lot of sense does it to it's a new york mr chief justice and may it please the court the antecedent question in this case is whether this court should create a cause of action for damages under bivins as justice kennedy pointed out for many years this court has declined to extend dividends to new contexts because out of recognition that the creation of causes of action is for congress you're quite right mr neither but there is a difference between this case and i think i think or maybe all but one of these other cases which is in all of these there is the court has been able to point to some alternative remedy it might not have been the complete relief that a plaintiff in a case wanted but it was something and there was an ability to say congress has given you some way to address the harm that you've suffered and here there really is nothing i mean there is the idea that you might prosecute this person criminally but what is the family get from that in any way you almost never do not the only factor that there is the or do we have said that that stanley might be the only case on your side and stanley is a military case where there is like the ultimate special factor so for the most part every time we've said said because there's an alternative remedy and here we can say that well when you say stanley and chappell versus wallace ultimate special factors because of the political branches control of the military that is directly applicable here here you have as a cross border incident which necessarily gives rise to foreign relations problems which are committed to the political branches the there and when congress has chosen to address remedies as a statutory matter the the under federal tort claims act it has created an exception for for injuries occurring in foreign countries in a response to justice ginsburg's question as a matter of federal law under the f t c day under this court sosa decision if the injury o judicially created remedy looking to what congress has done where it has acted and one thousand nine hundred three is another very prime example and we're congress has chosen to create monetary compensation for persons injured abroad by with those words assume the answer to the question i can absolutely see you are saying that if this court fashions a civil remedy for a violation of the third amendment or the second amendment you would be extending dividends but i thought bivins made absolutely clear that where a federal agent hurt someone by violating the fourth amendment there is a interaction no we have an exception and the exception is the military so i think you can look at this either way but i think the more i would tend to look at it as saying of course there is a if there is a fourth amendment violation own last you're in the military which no one says this is true so that's how i've been thinking about the bit of interaction i've been thinking the answer to that question turns on the answer to the fourth amendment question that you can tell me why it's better to use the words you've been using you know the court just because the court has recognized a bivins action for violation of a particular constitutional provision in one context or with respect to one side of the finance it doesn't mean that it that's the heartland of bevan's we don't have to make up anything new we don't have to extend it we don't have to create anything that's just given us it is the heartland of been special factors analysis for the court to create damage remedy  situation fraught with foreign relations issues and this ties directly into your point about so let's talk about that how is this fraught with foreign relations issues because mexico would surely prefer that that it's citizen have a defense remedy so you seem to be using foreign relations as if sort of this touches some other country but in the usual case i think we've asked what's the interference what's the disruption so tell incident and it's illustrated here by a number of factors mexico requested the extradition of of mesa in this case and the united states refused because it had done its own investigation of this incident and concluded that that prosecution should not be brought i'm sure mexico cared a lot about this the question i am asking is how does the presence of the bivins remedy disrupt or interfere with the united states is ability to carry out its foreign policy another illustration and i think i think it's tied to that is one of the reasons that is that why there is not a remedy in mexico is because mexico would recognize the official immunity of officer mason in this circumstance according to the amicus briefs i have no reason to disagree with that that is a recognition by mexico itself that the conduct of the u s officer in these circumstances involves of foreign sovereign problems and another process and other issue here is that the plaintiff here is plaintiffs here are seeking to insert the courts into the resolution of a dispute about which the united states and mexico have a different view of the terms of the questions about line drawing that were raised before the two nations have drawn a line here and this is a circumstance where this is the conduct here is clearly extraterritorial the fact that there may be joint maintenance of a culvert is a very minor factor considering that the only law that governs the point if in fact all that mattered were the existence of a well recognized boundary line this case is over you  but that well recognized boundary line was present in blue median and certainly boo median suggests while it is a factor it is not the only factor that determines the reach of the fourth amendment but me oh there we are we are in court because it is not the only factor and now you add in all this stuff about the culprit and who's playing there and who might be playing there in the five hundred thousand people who cross every day and the joint maintenance of the called in the fact that all this conduct happened in the united states that's what europe opponent brother over there is trying to do really and had to do with the substance of the application of the fourth amendment which i want to get to  in just a minute but the antecedent question is whether this court should answer those questions in a private damage remedy when it hasn't recognized the new context for one and thirty five years along with the government equally well with the government of mexico say if wrote an opinion that says because the united states spent a lot of money to pave this culvert we think that the united states authority with respect to the colbert is basically the same as the authority that we hav mexico mexico holds us accountable for doing something about it we investigated criminally and concluded that a criminal prosecution should not be brought but mexico regards it as the united states responsibility to control their nonviolent prosecution in the united states and to control to control the conduct yes and let me just reemphasize that were congress has has decided the damage remedies are talking about the territory over which the united states exercised jurisdiction independent of the incident that was at issue there here in the united states does not in my hypothetical border policemen are shooting indiscriminately from within the united states across the border this is the allegation in this complaint and i understand you say the government has investigated sees the facts differently have you seen the film that appeared on the youtube i have i do and i can't square the police officers account of this incident with that there were other videos that the the press release nothing in the record and nothing in a minute that like now but there was here was other evidence another video surveillance videos that were taken into account in the investigation if i could have one other question are there examples in the past ten years of the congress of the united states passing special laws for to compensate victims for instances some somewhat like this where the united states has either accidentally or deliberately transgressed on the rights of foreign parts i don't know if that if there were had been private bills but that would be the solution this is that this is something that should be up to congress and again on the application i guess you could say that with reference to even in the united states well in this this court and deciding whether to apply bevan says has look to the question of whether congress is the right body to decide rather than the courts and here we think it clearly is because of the foreign relations implications not to mention the border the border patrol since this incident and we cite this in our brief has undertaken numerous reforms it has changed it's training it is given more detailed instructions on the use of deadly force it has adopted a and this does go to the rule of law adopted a transparent system of the nest again after it and if you want to control agents stood where he stood and took the shot he did and the only difference was that a teenager in the covert was an officer take that position to into this hypothetical the officer shoots the bull shoots the gun the bullet leave the gun it's constitutionally there's constitutional consequences as the bullet travels all the way to the border if there's a boy between the bullet i mean the gun and sergio and the bullet goes through that boy in the u s and then the same bullet hits sergio their position is that there is a big claim and there's a constitutional constraint as to the first boy who dies but not the second boy that dies the the the conduct occurring in the united states one hundred percent of it if it gives a bit as claim if it gives a normal standard bivins claim to the boy who shot some more with the first with the bullet and then does not give one to sergio hernandez is ends up being anomalous as to justice kennedy's question on the fourth amendment the man who many and decided that it is it is a functional  test it's a question of judgment not compulsion is justice harlan said in read and is as too many in suggest for do go has nothing to do with the application of the seizure by shooting someone dead to the search inside the property i think the confirms that the fact pattern of someone being killed is enough at the practical way to provide limited constraints thank you very much thank you counsel the case is submitted