Mr. Chief justice, may it please the court. When this case was first argued to this court two years ago, counsel for respondent and counsel for the United States were asked if they were standing on u. S. Soil when he was shot and killed. Both said yes. The question before this court today is therefore whether the sacks nevertheless foreclosed because in this case, sergio was standing a few feet to the mexican side of the border at the time he was shot. For two reasons we believe that it isnt. First, where the victim is standing does not in fact trigger any of the special factors counsel, identified by the respondent or the United States. Most importantly it is difficult to see how Foreign Relations could be a special factor concluding if it wouldnt have been the claim if he had been standing a few feet away. It is belied by the long history of successful tort claims against federal Law Enforcement officers including cases in which the victim was a foreig r er harmed on foreign soil. Nor does extra territoriality cut against it. Not only was respondent standing on u. S. Soil when he pulled the trigger but he could not have known in that instant where the wlet would even land, let alone the nationality of anyone it might hit. Secondly, it is bivens or nothing. Neither the respondent nor the United States seriously disputes the it prevents the recommended they could have pursued. And neither has identified any other alternative remedy for the petitioners here as opposed to other parties in other cases. All of this goes to why this court was right when explaining there are powerful reasons to retain bichbls a its a recommended for individual instances of Law Enforcement overreach. It goes to why even though he was standing on mexican soil when he was shot and killed, this case presents the exact Law Enforcement overreach that ned mind. I think it is a useful place to begin our analysis. In that place, not only did this court suggest that there were still Important Reasons to retain bivins in Law Enforcement context but this court actually preserved and retained one of the plaintiffs bivens claims. It returned to the court rather than dismiss him the abuse claim of the warden. And we think that reflects four of the reasons why retaining bivins in the Law Enforcement makes essential. First, as this court said, it is difficult to contemplate other remedy whens individual instances overreach in play. A damage action after the fact will usually be the only possible recourse. It will be difficult to claim in advance. Second, the deterrent effect, what this court has called the poor purpose of bichbls to determine individual officers could quite easily be lost in the absence of remedies, unlike when this court stressed there were alternative recommendeds available to the plaintiffs. Third, the historical tradition that we note in our brief where federal courts and state courts going all the way back routinely imposed tort damages against federal officers without suggesting there was separation of powers obstacles to doing so. Without suggesting there was anything wrong the federal courts providing a cause of action in those cases. As opposed to where the inquiry has focused. Immunity are. There cases to actually hold the defendant officer harmless. He was active in good faith or under the clause he didnt violate clearly established rights. Thank you. If the officer in this case had been a state officer and Everything Else was the same, would the victim have a claim in federal court . So if the questions in federal court, justice alito, i dont think the victim could make a claim under 1983. As the government points out, the language of that statute limits the class of plaintiffs. But justice alito, congressman enacted in 1983 as the judge noted in his disent below was not thinking about limiting recommendeds. It was thinking about expanding remedies in that context in 1871 to newly freed slaves. So it does nothing for whatever state tort remedies. That will vary a bit. Suppose there were no 1983, and a state officer had done exactly what the agents did in bivins. Would there be an action against the state officer . There would be. And i think in this context, reminding the court in the position in bivins. It was not that the federal courts should not be recognizing these remedies in any context. Rather the context in bivins was that new york state tort law would have provided an adequate remedy. Not just against the law but also had they been new York City Police officers. That new york trespass law would have provided the rep did i to quote frye the governments broef in bichvins, it should on be recognized when it is necessary. And the argument was whether a complimentary federal remedy was necessary for the Fourth Amendment rights given the existential of new york trespass law, given the argument that new york trespass law in that context was adequate to vindicate the plaintiffs Fourth Amendment interests. And this was the common law model. I think were all familiar with henry harts dialectic. It was understood that even federal officers would be principally responsibility to judges in state court. There was no general. You referenced the governments position in bivins. That was almost 50 years ago. In the interim, there is been a firstly dramatic change in how we approach things implying causes of action and under bi l bivins. Its been 40 years since the last time. So i think you need to move up half a century and explain to us why we should take your approach today regardless of what the prevailing legal regime was in 71. I take point. If i may offer two points in response. I say all this by putting bivins in context. Bichbls with you a continuation of its tradition. The government points out on page 11. Where this court has had the opportunity on recognize the bivins drremedy, none involved claim that an individual federal Law Enforcement officer was acting. None of the suits involved the kind of claim we have here. None of the suits involved the context in which this historical tradition was at its richest, mr. Chief justice. Not all the cases even involved claims that would have had a common law parallel. So we prog this court has been increasingly skeptical of causes of action in general and not i have abouts in particular. Our point is that it has been reserved, or at least focused on categories unlike this one. If bivins were a statute, in effect, we would apply the presumption against extra territorial application. The other side argues that therefore even if writ a statute, it wouldnt apply in a circumstance like this. What is your answer to that . I think we have two answers, justice kavanaugh. The first is that bivins is not a statute. This court has never suggested that in looking at whether particular constitutional provisions applied territorially, we would use any of the typical presumptions that we apply to statutes because it is a fundamentally Different Task from the perspective of looking at the extent to which the constitution applies overseas, versus what comments would have been tended. But even if it is believed it is appropriate, i think it helps us more than it hurts us. They said there will be cases in which the underlying conduct, it involves activity that touches and concerns u. S. Soil with sufficient force to displace the presumption against extra territoriality. So we can still say this case is different. The respondent was on u. S. Soil. The victim, hernandez, this court has said, on that it is injured abroad. It doesnt have any Fourth Amendment rights. So what seems like a rather arrogant discussion, at the end of the day, there is no federal constitutional right that can be asserted by a noncitizen who was injured abroad. Verdugo stands for, in that case there was no Fourth Amendment protection for a National Whose home was searched by dea agents. I think this court suggested in hernandez two years ago that the Fourth Amendment question in the context of a cross border shooting is more xlatd. And it is the fact that that case is unsettled sorry. This is my question too. What then is the limiting principle in we have a Foreign National injured abroad by a national in the United States. I can think of a lot of cases that will encompass. Not just cross border shootings but all kinds of tort thats can occur transnationally. Would you capture all of those . Not at all. It cant be this is good for one shooting only, right . No. And i think the court is familiar with there is more than one shooting. But the larger position is it is focused on the Law Enforcement nature. So many of the im athletic chy that were thinking of why would it be limited to Law Enforcement as opposed to other governmental functions happened here but injured persons abroad . Because it is in the Law Enforcement context that there is the strongest appeal to the historical tradition in our briefs. Where there is a Straight Line dating all the way back to the founding where it was Law Enforcement where common law remedies against officers were so important. There arent many examples. I could find non. Of combat operations, for example, where state courts were enforcing tort remedies. So you draw a line there actively in this case and say that any actions involving military operations diplomatic operations, any other operations of government are not, there is no bivins action there. Only for Law Enforcement, whatever that means, operations. I wouldnt decide more than is necessary. Okay. Thats what i thought you would say. All right . So where is, if youre not willing to draw that line, where is it . And how is this court supposed to draw it . You say, you could say this but i wouldnt say it. Where would you draw the line . I think based on this courts jurisprudence, i think the line could reasonably applausebly no, no, not reasonably, plausibly. I think it isnt necessarily squint this full tradition. It has still left open Law Enforcement conduct. Not just this court. Congress in the 1974 amendment to the federal tort claims act went out of its way to and fanld liability of the United States for intentional torts committed by Law Enforcement officers. It is not just intentional torts. It is rogue intentional torts. Thats an important limiting principle. It absolutely is. Excepting the facts of this case, is u. S. Of force on u. S. Lands, and it is unreasonable because the claim is that this young man was doing nothing but standing on the other side of the border. And i think this might be a more convincing answer, i hope to Justice Gorsuch. I do believe it is relevant to the claim and the strength of our claim in this case that the respondent was, according to the plausible allegations, violating not just the constitution but his own departmental regulations that we have not just a Law Enforcement officer, Justice Gorsuch burks a Law Enforcement officer are we supposed to decide this . I thought, i wrote a disent, i guess. I thought this is special. It is american Law Enforcement, american soil, and he thought he might be shooting an american. And the border in this case is rather special. It is not just the line. It was the river. And it is administered by an international commission. Okay. I have about six wonderful reasons that persuaded only me. Now i thought were taking this case on the assumption that the Fourth Amendment does apply. And the only issue in front of us is not that but rather we assume that the Fourth Amendment applied. That it is a cheer violation of the Fourth Amendment. The question is whether there is a bivins action for a clear rogue violation of the Fourth Amendment that takes place in the way this does. Is that sufficient that it is some kind of extension of the Fourth Amendment . Or this is some kind of special situation . That i thought was the issue. Ill try to answer that question, i would like the hear what you say about that. I agree completely, justice breyer. I think that i dont care whether you agree or not. All i want is to hear your argument. I dont want to repeat myself. But on the assumptions i gave, what is your argument that this is not an extension . That this is not special. That this is not an unusual thing. They have long recognized for Excessive Force are what they called classic. I believe judge kavanaugh called at this time core of bivin thats a Law Enforcement was acting. So justice breyer, i think theres least an argument. Even if it is a new context, the government responded how it identified three special factors that they argue counsel hesitation. First because this case implicates Foreign Relations and National Security west dont believe informs simply from the fact Sergio Hernandez was standing on the mexican side of the border as opposed to the merge side of the border. The government argues extra territoriality was a factor. As i think i responded, we dont think it is implicated here because this case touches and concerns u. S. Territory with sufficient force to displace the presumption. And the Third Special factor invoked by respondent and the government is comingal action. And i think in that context, there is no example of congress specifically trying to preclude claims like petitioners here. The only Time Congress has ever spoken to the tort liability of again, Justice Gorsuch, this is where we get our test from. Individual federal Law Enforcement officers. Congress has expand that had liability. Just to go with the first of the things you mentioned. The International Relations. There has been diplomatic correspondence between the Mexican Government and our government with respect to this incident. The Border Patrol has conducted an investigation and reached the determination that the action of the agent was not contrary to policy. And you would have the courts look into this by providing a bivins remedy that could well come to the opposite conclusion. So in terms of our relations with mexico, we would have one agency saying this was not inconsistent with policy. We would have the court saying it is. And that is the type of thing makes it at least a new context. You can say it doesnt make a difference. In terms of our relations with mexico, they have two different things. And at least with respect to Foreign Relations, i thought country was supposed to speak with one voice. I certainly agree that the country is supposed to speak with one voice. Two points in response. The first is, have been if the government continues to believe, if a respondent continues to believe there would be a be bivins remedy, if Sergio Hernandez hbl simply standing on american soil, it is not clear why the same concerns wonlts be equally present biffle that logic, any time a u. S. Officer harms a Foreign National, it is not hard to imagine similar diplomatic correspondence following of the. They argue it is not merely the Foreign Policy, but that Border Security is also National Security in some respects. Thats a different context, slightly different than the Foreign Relations. Can you address that . Absolutely. We certainly agree that Border Security as a policy is important. If we were here challenging one of the governments Border Patrol policies, this would be a different case. I think it is important to note back to the chief justice question, the dispute is over whether the respondent violated the very government policy. We are not challenging a policy of the government. We are claiming respondent himself didnt comply. The government responded. We dont think it is the kind of policy to which this court has historically acovereded deference in the Foreign Relations and National Security sphere. If it is an after the fact single determination as opposed to a challenge to an entire Border Patrol policy. I thought you were challenging the constitutionality of what was done. Not whether it was squint Border Patrol policy. Is that, does that provide the basis for a federal claim . If you put the Fourth Amendment aside that it was contrary to Border Patrol policy works that