Isnt. First the fortuity of where the victim is standing does not trigger any of the special factors counsel and hesitation identified by respondent or the United States, most importantly its difficult to see how Foreign Relations could be a special factor precluding here if it wouldnt have precluded devons claim had sergio been standing a few feet away. The governance assertion that permitted petitioner suit would dramatically undermine us Foreign Relations in diplomacy is belied by the long history of successful court claims against federal Law Enforcement officers including as in the avalon cases in which the victim was a foreigner formed on foreign soil. The Court Awarded damages and the diplomatic sky did not fall nor did that territoriality cut against the different rabbit remedy here not only with respondents standing on us soil but he could not have known in that instance where the bullet would land or the nationality of anyone it might hit and more importantly for petitioners here its nothing, neither respondents nor the United States seriously disputes that the westfall act preempts the texas port remedy petitioners could otherwise have pursued and identified any other alternative remedies for the petitioners here as opposed to other parties in other cases. All this goes to why this court was right when it explained there are powerful reasons to retain veterans as a remedy for individual instances of Law Enforcement overreach and it goes to white even though sergio was standing on mexican soil when he was shot and killed this case presents the Law Enforcement overreach that he had in mind. Divorce is a useful place because in that case not only did this court suggest there were still Important Reasons to retain veterans in Law Enforcement context but this court itself preserved and retained one of the plaintiffs claims, this court returned to the District Court rather than dismissed it. The prisoner abuse claim versus the warden and since that reflects four of the reasons why retaining bivens in the Law Enforcement makes sense. As this court said it is difficult to contemplate other remedies when individual uses of Law Enforcement overreach are at play. In the context the damage and action after the fact would be the only possible legal resource. Its going to be difficult to bring a claim in its hands. And the deterrence effect, what this court has called the sole purpose of bivens which is to deter officers could be lost in that absence of remedies in the Law Enforcement context unlike in abbasi where as this court stressed there were alternative remedies available to the plaintiff. The historical tradition that we note in our brief where federal and state courts going all the way back to the founding routinely imposed tort damages against federal officers without suggesting there was separation of powers. Without suggesting there was anything wrong with the federal courts providing a cause of action in the cases as opposed to i think where the corey has focused immunity, are there reasons to hold the defendant officer harmless not because theres no cause of action but because he was acting in good faith or under the modern standard because he did not violateclearly established rights of which a reasonable officers position would have been aware. If the officer in this case had been a state officer and Everything Else was the same, with the victim have a claimin federal court . Its a question in federal court justice, it would depend on diversity. The victim would not be able to bring a claim on the 1983 because the language of that statute limits the class of plaintiffs to us citizens and those are to the jurisdiction thereof but Justice Alito, congressman and acted in 1983 as judge prado noted in his dissent was not thinking about limiting remedies that were otherwise available, it was thinking about expanding remedies in that context to newly free slaves so in 1983 does nothing to disclaim whatever state tort remedies might be available against stateofficers and thats going to vary a bit. Suppose there were no 1983 and a state office that had done exactly what the bureau of agents did in bivens. Would there be an action against the state officer . There would be Justice Ginsburg and reminding the court of the governments position the governments position itself was not that the federal courts should not be recognized in these remedies in any context. Rather the governments position in bivens was that new york state tort law would have provided a remedy not against the federal officer defendants in bivens but had they been new York City Police officers that new york trespass law would have provided the member remedy. To quote from the briefs a federal remedy should only be recognized when it is necessary and the argument in bivens was to whether a complementary federal remedy was necessary to vindicate the plaintiffs Fourth Amendment rights given the existence of new york trespass law, given the governments argument that new york trespass law in that context was adequate to vindicate the plaintiffs Fourth Amendment interest and this was the commonlaw model and we are all familiar with henry hart dialectic where professor hart suggested the original understanding was that even federal officers would be principally responsible to judges in state court. There was no general fred oral question statute. You referenced the governments position in bivens. That was almost 50 years ago. In the interim theres been a dramatic change in how we approach things as applying causes of action both under statute and under bivens. Its been 40 years since the last time we recognize the cause of action so i think you need to move up half a century and explain why we should take your approach today regardless of what the prevailing legal regime was in 71. The point mister chief justice is i say all this by way of putting bivens in context that rather than a ball from the blue bivens was a continuation of this tradition but the wind the clock forward and i think the task for the court today i think its worth stressing that of the nine cases this court has decided since carlson which the government points out at page 11 where this court has had the opportunity to recognize the bevins remedy and has chosen not to do so , none of those involved a plan that an individual federal Law Enforcement officer was acting. None of the suits involved the kind of claim we had here. None of the suits involved the context in which the historical tradition which was at its richest. None of the suits or at least not all of the cases involved claims that would have had a commonlaw parallel so we recognize this court has been increasingly skeptical of judgment clauses in general and bivens in particular and our point is that skepticism has been reserved or at least focused on categories unlike this one. If bivens were a statute in effect we would apply the presumption against extraterritorial application and the other side argues that therefore even if it were a statute it wouldnt apply in a circumstance like this. Whats your answer to that . The first and most important is that bivens is not a statute and that court has not suggested that in looking at whether particular constitutional provision applies extraterritorial he we would use any of the typical presumptions that we apply to statute because it is a fundamentally Different Task from the perspective of looking at the extent to which the constitution applies versus what congress would have intended but even if this court nevertheless believe its appropriate to map on that presumption i think it helps us more than it hurts us because in coble this court said there will be cases in which the underlying conduct, the plaintiffs complaint involves activity that touches and concerns us oil with sufficient force to displace the presumption against extraterritoriality so i think this court could assume without deciding that extraterritoriality is a special factor for purposes of bivens and say this case is different because respondent was standing on us soil at thetime he pulled the trigger. That is touching and concerning us territory. From my perspective the way he meant it. And thevictim hernandez , this court has said i think that a noncitizen who enters a broad doesnt have any Fourth Amendment rights so it seems like a rather area discussion at the end of the day, there is no federal constitutional right. They can be asserted on a noncitizen who is injured abroad. Vertigo stands for the proposition that in that case there was no Fourth Amendment protection for a Mexican National home was searched by dea agents operating in conjunction with the Mexican Government. I think this court itself suggested in hernandez 12 years ago that the Fourth Amendment question in the context of a crossborder shooting is more complicated and it is the fastest facet that question is unsettled. This is my question to and i want to pick up onJustice Ginsburg. What then is the limiting principle . We have a Foreign National injured abroad by an action in the United States. I can think of a lot of cases thatthats going to encompass. Not to cross the border shootings but all kind of quirks that can occur transactionally. We should capture all of those . Notat all Justice Gorsuch. This cant be good for one shooting only. This court is aware theres been more than one shooting know, i think the larger point is our position focuses on the lawenforcement nature of cognitive issue here so many of the hypotheticals that you were thinking of that id be thinking of for context in which the Us Government person in the United States why would it be limited to Law Enforcement as opposed to other Law Enforcement functions that injured persons abroad . Its in the lawenforcement that theres the strongest appeal to the historical tradition where there is a Straight Line dating back to thefounding where it was Law Enforcement where commonlaw remedies against federal officers were so important. There are many examples, i could find none of combat operations where state courts were imposing tort remedies against federal officers. You draw a line there actively in this case and say that any actions involving military operations , diplomatic operations, any other operations of government, theres no bivens action there, only for Law Enforcement whatever that means. Obviously i wouldnt decide more than is necessary. But thats what i thought youd say. So where is, if youre not willing to draw that line , where is it and how is this courtsupposed to draw it . You could say this but i wouldnt say it. Where would you draw the line . I think based on this courts jurisprudence, the line could reasonably plausibly not reasonably plausibly, where would you have this court draw the line . There are decisions this court has handed down that are consistent with this whole tradition but its left open Law Enforcement conduct Justice Gorsuch and its not just this court, congress in 1974 amendment to the federal court tort act went out of its way to expand the liability of the United States for intentional torts committed by Law Enforcement officers. Its not just intentional torts, its world intentional torts,thats an important limiting principle. It is. Accepting the facts of this case, the use of force is on us land and its unreasonable the claim is that this young man was doing nothing but standing on the other side of the border. This might be sort of a more convincing answer i hope to Justice Gorsuch which is i believe it is relevant to the claim and the strength of our claim in this case that the respondent was according to the plausible allegations in the complaint violating not just the constitution but his own departmental regulations , that we have not just a Law Enforcement officer but one acting alter veras. Are we supposed to decide this . I thought i wrote a dissent i guess and this is special because its american law and of course american soil and he saw he might be shooting at an american and the border in this case is rather special. Its not just the line, its a river and it was administered by an international commission. I have about six wonderful reasons that persuaded only me. Now i thought we weretaking this case on the assumption that the Fourth Amendment does apply. And we only issue in front of us is not that but rather we assume that the Fourth Amendment applies, that it is a clear violation of the Fourth Amendment and the question is abbasi, where there is a bivens action for a clear rogue violation of the Fourth Amendment that takes place in the way this does. Is that sufficient to use the abbasi term which ive now lost but the abbasi term that this is some kind of extension of the Fourth Amendment or that this is some kind of specialsituation . That i thought was the issue and at some point i feel ill try to answer that question but id like to hear what you say about that. I agree completely justice breyer. I think abbasi all i want to hear is your argument. I dont want to repeat myself but on the assumptions i gave what is your argument that this is not an extension, that this is not special, that this is not an unusual thing. Our argument is first that this court has long recognized that claims against individual lawenforcement officers were Excessive Force are what the fifth circuit called classic bivens claims. Theres an opinion by judge kavanaugh relating to the core of bivens that an individual lawenforcement officer was acting altra viris but the government and respondent have identified three special factors that they are the Council Applications at first they say its because the state case implicates Foreign Relations as we suggested our briefs we dont believe that follows from the fact that Sergio Hernandez was standing on the mexican side of the border and the government argues extra toward territoriality and i hope ive played in response to Justice Kavanaughs question, we dont think extraterritoriality is implicated here because this case touches and concerns us territory with forced to displace the presumption and the Third Special factor in both sides, respondent and the government s congressional action and i think in that context there is no example of congress specifically trying to preclude claims like the kitcheners here and the only Time Congress has ever spoken to the tort liability of again Justice Gorsuch this is where we get our test from, individual lawenforcement officers. Congress has expanded that liability. There has been diplomatic correspondence between the Mexican Government and our government with respect to this incident. The Border Patrol has conducted an investigation and its reached the determination that the action of the agent was not contrary to policy and you would have the courts look into this by a, providing a bivens remedy that could come to the opposite conclusion so that in terms of our relations with mexico we have one agency saying this was not inconsistent with policy, we have the court saying it is and that is the type of thing that makes it at least a new context. You can say it doesnt make a difference but in terms of our relations with mexico got two Different Things and at least with respect to Foreign Relations i thought the country was supposed to speak with one voice. I agree the country is supposed to speak with one voice. Two points in response. If the government continues to believe there would be a bivens remedy, if Sergio Hernandez had been standing on american soil its not clear why the same concerns wouldnt be equally present. By that logic anytime a us officer harmed any Foreign National even if bivens itself had been a Foreign National its not hard to imagine similar diplomatic correspondence following from that incident. They argue its not merely a Foreign Policy implications but that Border Security is also National Security in some respects and thats a different context, slightly different than the Foreign Relations. We agree that