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tv   Senate Hearing on Transportation  CSPAN  February 26, 2020 4:00am-5:09am EST

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back to the archives, by those little video clips, and do a segment on that. one could sponsor filmmakers from all over the world to do this. i'm visualizing one, where there is no language, where there is one thing that is language free. and others have subtitles with the language, or the audio over it. so that everyone knew their everyone was seeing this exact same information at the same time. and maybe in awards category could be invented, given the global national movie industry. they could do that con. for the academy awards. or whatever. let's get the world using those cellphones for massive education. he of video psas. thank you for your work. one more thing. i have the flu today. i have influenza. i went to my doctor yesterday. i'm 72 years old. i'm sick for a couple of weeks.
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i did get the shot today for reasons that don't matter. i got it yesterday after the doctor suave my nose. he confirmed fear that test, that i have influenza. i'm a highly knowledgeable person, i could not even know that war was a test to confirm i had a flu. and what strayed it was. we need more education here at home for ourselves, about the basics of where the science is right now. the game in the shot again. the flu shot. even though the season is going to end. i can't use any of the other stuff. because i'm too far into the infection. i just wanted to say, we need education at home and abroad. >> got a barbara, thank you. >> that is a great idea. i really like it. getting those short psas and animations out there, it's something we have done with our members and activists around the world. getting in front of millions of people is really tough.
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i did want to comment that this is one of the things that other partners on the ground due to tell communities there is going to be a vaccine day. they will get the community leaders, and who paid advertisements and billboards. most everybody listens to the radio. they will do radio advertisements. women will walk for hours and their sunday best for a vaccine day. because i know the power these vaccines to say their kids lives. >> for viewers i want to learn more, you can go to one daughter. you can follow on twitter. at one campaign. tom hart, thank you for this conversation.
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he's, 16, 78. hernandez. >> mr. chief justice merkel's report. when this case was spurs argue to this for two years ago. counsel responded, and council for the united states, were
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both asked for the petitioners would have -- if sergio hernandez was standing on u.s. soil when he was shot and killed by respondents? well said yes. it wasn't for the score today, is whether in action is nonetheless foreclose. because in this case. sergio ascending on a few phoenix of the mexican border at the time he was shot. for two reasons we believe that it isn't. first. the fortuitous of where a victim is standing does not affect trigger any of the special factors. identified by responders or the united states. most importantly. it is difficult to see how foreign relations could be a special factor for including a bevin suit here. if it wouldn't have precluded acclaim if he wasn't standing just a few feet away. moreover the governments would dramatically undermine u.s. foreign relations in diplomacy is, belied by the long history towards claims towards federal officers, including as in the avalon, this is where the
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victim was a foreigner harmed on foreign soil, the diplomatic sky did not fall. nor this extra territoriality. not only were responded stain on u.s. soil when you pull the trigger. they could not have known in that instant, where the bullet would even lands. let alone the nationality of anyone who may hit. second, as import labor petitioners here. it is begins or nothing. another respondents northerners united states seriously disputes, the west hall act preempt -- and neither has identified any alternative remedy for the petitioners year. as opposed to other parties in other cases. all of this goes to why this court was right, when it explained there are powerful reasons to retain divisions as a remedy for individual instances of law overreach, it goes to why sergio was sent on mexican soil when you shot and killed this, case provides the
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law enforcement overreach that they had in mind. think abbas is a useful place to begin our analysis, and that case only did that court suggest that there is still important reasons to retain bivens him on forcing contacts. this court actually preserve and retain one of the bivens claims. a return to the district court and sort of dismissive. the prison reviews before against the nbc. a reflects four of the reasons why irritating bivens and a lot sphere. obasi whoever -- is difficult to contemplate other -- when individual officers are playing. his contacts of damage after the fact will be the only possible legal recourse. it is going to be difficult to a claim in advance. the deterrent effect. but his court has called the core purpose of bivens. the bitter individual officers, could be a loss in the absence
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of remedies and the law. as obasi, or alternative remedies. the historical traditional donor brief. where federal courts and state courts, going all the way back to the founding. routinely impose, for damages against federal officers, acting in ultra beers. without suggesting there was separation of powers. without suggesting there is anything wrong with the federal courts. providing a cause of action in those cases. as opposed to having focus on immunity. reasons in these cases actually hold the defended officer harmless. not because there is no cause of action, but because he was acting in good faith. for under the modern standard, because he did not violate establish rights. how are his position would be aware. >> if the officer in this case, i've been a saint officer, and
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everything else was the same. with the victim have a claim in federal court? >> that the question isn't in federal court, i think would depend on diversity. i don't believe that the victim would be able to run a claim under 1983. because as a government points out, the language of that statute limits a class of plaintiffs to u.s. citizens and those under the jurisdiction of thereof. justice alito, congress when enacted in 1983, as a judge noted in his below. i did not limit remedies otherwise available. it is about expanding remedies in that context of 1980 71. normally three slaves. it has nothing to displace, any toward remedies that might be available towards state officers. that's one of every a bit. >> there were no 1983, and a state officer had done exactly what the bureau of narcotics agents did. in bivens.
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whether be in action against the state officer? >> there would be. it is worth in this context, reminded the court of the government's position in bivens. their position was not at the federal court should not be recognizing these remedies in contacts. rather the government's context in bivens. was that new york state tort law would provide an adequate remedy. not against a federal officer, but against had they've been new york city officers. that new york trespass law. it would provide the remedy. to quote for the government's briefing. a federal remedy should only be recognized when it is necessary, and the argument ambivalence, was simply asked to whether a complimentary remedy was necessary. they vindicate the plaintiff's fourth amendment rights. given the existence of new york traps past law. given the government's argument that new york trespass law in that context was adequate to vindicate the interests.
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this was a common law model. i think we are all familiar -- with that the original understanding was that even federal officers would be principally responsible for judges in state court. there was no general federal question statue. >> your reference to the government's position in bivens. that was almost 50 years ago. and the interim, there's been a fairly dramatic change and how we approach things, causes of action, under statutes. and under bivens. it's been 40 years since we last recognized a class action in bivens. we need to move up half a century. explain to us why we should take your approach today, regardless of the prevailing legal regime was in 71. >> i think the point. if i may offer two points a response. i say all this by putting
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bivens in contacts. bivens with a continuation of this tradition. the 1:00 forward is the task for the court today. i think it is worth stressing. of the nine cases, this court has decided since carlson, which a government point out in page 11. at this gorgeous had the opportunity to recognize the bivens remedy, and it shows are not to do. so 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 common-law 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
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presumption against extraterritorial application and the other side argues that therefore even if it were a statute it wouldn't apply in a circumstance like this. what's 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 it's 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 plaintiff's complaint involves activity that touches and concerns us osil with
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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 the time he pulled the trigger. that is touching and concerning us territory. from my perspective the way he meant it. >> and the victim hernandez, this court has said i think that a noncitizen who enters a broad doesn't 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 non-citizen who is injured abroad. >> >> >> not at all justice
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whose home was searched by agents operating in conjunction with the mexican government. i think this court itself suggested in hernandez one two years ago that the fourth amendment question in the context of a cross border shooting is more complicated. and it is the fact that that question is unsettled. this is my question to. i'm going to pick up on justice ginsburg. what that is the limiting principle? we have four national injured abroad in the united states i can think of a lot of cases that that would encompass right? not just cross border shootings, but things that occur transnational. would you capture all of those? not at all gorsuch. >> this can't be good for one shooting only. >> this court is aware there's
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been more than one shooting know, i think the larger point is our position focuses on the law-enforcement nature of cognitive issue here so many of the hypotheticals that you were thinking of that i'd 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? it's in the law-enforcement that there's the strongest appeal to the historical tradition where there is a straight line dating back to the founding where it was law enforcement where common-law remedies against federal officers were so important. there aren't 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
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operations of government, there's no bivens action there, only for law enforcement whatever that means. >> obviously i wouldn't decide more than is necessary. >> but that's what i thought you'd say. so where is, if you're not willing to draw that line, where is it and how is this court supposed to draw it? you could say this but i wouldn't 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 it's left open law enforcement conduct justice gorsuch and it's 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
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united states for intentional torts committed by law enforcement officers. >> it's not just intentional torts, it's rogue intentional torts, that's 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
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acting alter vera's. >> >> i agree completely the border in this case is rather special. it's not just the line, it was the river. administered by international commission. i have about six wonderful reasons that have persuaded only me. >> i thought we 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 soon to the fourth amendment applied, that it is a clear violation of the fourth amendment and the question is a bossy. whether there is a vince action for a clear rogue violation of the fourth amendment that takes place in the way this does. is that sufficient to use in a bossy term? which i'm now lost.
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but the bossy term that this is some sort of extension of the fourth amendment, or it is some sort of special situation. that i thought was the issue. at some point, i feel i'll try to answer that question, but i'd like to hear what you say about that. justice breyer. i think abbasi -- >> all i want to hear is your argument. i don't 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. >> recognized. the claims against individual law enforcement officers for excessive force or what is called a classic events claim. then judge kavanaugh referring to it as the core of biden's.
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justice breyer, i think there's at least an argument, that might not even be in your context. but even if it is in your context. the government have responded and identified three special factors. first they say it's because the case involves foreign relations and national security. we don't believe that follow 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 extra territoriality is a special factor. i hope i explained in response to justice kavanaugh's question. i don't think that 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 responded and the government is congressional action. i think in that context, there is no example of congress specifically trying to preclude claims like here. and the only time congress is ever spoken to the tort liability, again justice
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gorsuch, this is where we get our test from, individual federal enforcement officers. councillors expanded. >> just a moment ago with the first of the things you mentioned, the international relations. there has been >> 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 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 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 doesn't 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
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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 it's not clear why the same concerns wouldn't be equally present. by that logic anytime a us officer harmed any foreign national even if bivens itself had been a foreign national it's not hard to imagine similar diplomatic correspondence following from that incident. >> they argue it's not merely a foreign policy implications but that border security is also national security in some respects and that's a different context, slightly different than the foreign relations. we certainly agree that border security as a policy is important policy of the united states. that if we were here challenging one of the governments border patrol
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policies, this would be a different case. but i think it's important to note, back to the chief justices question, the dispute here is over whether responded violated the very government policy it issued. that is to say, we are not challenging a policy of the government. we are claiming responded himself did not comply with a policy. the governments entitled, mr. chief justice, its own preliminary of the question. we don't think it is the kind of policy, to which this course has historically accorded difference, in the fourth shun relations and national security sphere. if it's an after the fact, factual determination about a single incident, as opposed to say a challenge to an entire border patrol policy. i thought you are challenging. policy. does that provide the basis for a federal claim, if you put the fourth amendment decided that the action was contrary to border patrol policy, with that provide the basis for a federal claim? not for damaged.
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>> yes. >> it is our possession plea back to the question with justice gorsuch. the reason why we believe this is in the heartland of violence, notwithstanding the concerns the chief justice has referred to and justice kavanaugh alluded to. it's because here we do not have a case where the claim is not the particular a policy of the united states in the foreign relations or national security. sphere fourth of the injury to the plaintiffs. your argument is that the policies actually co-extensive with the constitution. and so that if we are correct. which we have not had a chance to prove. if we are correct. that responded violated his constitutional rights. it would also be a violation of policy. to us. the questions blend together because it helps to drive home why this case is not like the nine cases quarters had since carlson. >> can we go back to the question i ask? if breaking into someone's home
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and searching and seizing, if that's not a fourth amendment violation because the person is a non citizen and a half in the bra, he said across border shooting is more complicated, why? why should it be different? >> doesn't gibbered. i think this court has that in her natives one. the reason why is because there is some of certainty in the lower courts. as reflected in the ninth circuit's decision in the rodriguez case. the three judge panel decision this case. there's uncertainty in just how broadly this it which the court said, and mexican national cannot invoke the fourth amendment to channel the search of his home. by the a officer. there's uncertainty about how far that sweeps. is it a categorical, on off switch, at the border? are the reason to actually think that the fourth amendment question is more complicated in the context of which you have crossed borders episodes.
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that is this a. this purdue goes all the same force? >> there is one part of the cheese question you deny answer. the government speaking with one voice. he said the government shouldn't he is positive, the executive has said. this was not a rogue action. this security guard, they concluded, based on what we don't know. that this officer was being attacked. that's why he shot. the allegations of this complaint or to the contrary. if the court were to rule in favor of your client. another court, but a jury, which i found him favor of your client. would we be speaking into voices? >> thank you. another response is that this court has never suggested that every single thing that the united states says, that has any bearing on any possible sliver of foreign relations, is the kind of foreign policy in
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which the court, the government says people one voice. there is a meaningful distinction between a policy that is ex anti shaping of a conduct of our border patrol officers, where a judicial decision michael into question the policy, and a context for the dispute rises and falls along whether the government's own policy prohibits excessive force in the constitution. whether that was violated. it seems to be that there is a merger. what >> what i have for you have this one incident. and the executive van had a very different view of what happened. then the courts do then the courts do and the courts said there was unconstitutional conduct here. it's through use of excessive force but the executive branch thought he did everything by the book and he is, he shouldn't be well subject to any action even a disciplinary one and then the court's decision contrary to that, let's say mexico once to expedite the border patrol
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officer and that puts i would think the executive branch in a quite difficult situation. mexico is pointing at a court judgment of the executive branch things that there's no earthly reason to extradite. what happens then? >> justice kagan, there's a difference between the preclusive effect of a civil judgment about the unconstitutional conduct by the officer would prove and whether the mexican government would be able to satisfy the different inquiry of whether there is sufficient evidence to sustain a criminal indictment and warrant extradition under the terms of the us mexico extradition treaty. on the governments logic, all it takes is the government showing up after an incident and saying there's some reason why we don't believe this was unlawful or there's some foreign relations implication to a judgment holding this unlawful and after-the-fact it would still preclude bivens. >> that's a fairly unfair characterization of what the
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government did in this case. it was a fairly thorough investigation and maybe 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. it has to be simply a new context. >> demi will be. i think the mission is simply that the question that his quarters always suggested in the bids contest. is hard to preserve its core contacts. the context in which the governments after the fact, factual determination, that an officer had acted in appropriately under the circumstances, for sufficient to be policy choice, that doesn't actually give rise to the difference of this court has historically recorded. that's all we're worried about. it is unclear how this would potentially in this case swallow the category. that is this, if a boss ami
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what he said, when it's other powerful reasons to retain begins in a law enforcement contacts. we think that's true mr. chief justice, even when the government has other equities at stake. because again, the key for us is when a court is saying an individual officer has acted ultra virus, it is not the same thing as saying the government's policy is somehow inconsistent with the constitution. it is not the same thing as saying we are second guessing how the government has chosen to conduct, border patrol policies. is simply say that this one officer went out of bounds. that isn't a claim that has been historically available at common laws. they're gonna clean the congress preserve and the amendment. i think if i may, the point of a bossy at the end of the day, it's a draw the distinction. between the kind of claims court rejected. which was a high level challenge the post 9/11 policies formulated by the attorney general and the fbi general and individual law enforcement overreach.
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>> thank you counsel. >> mister ortega. >> mister chief justice may it please the court. the petitioners are asking this court to create a cause of action where none has existed since the formation of our republic. by extending bivens in a new context. where congress has not has declined to provide a remedy and congress is telling, they've addressed this issue in that a ftca which bars foreign claim. they've addressed it again in the tort statute and they addressed it again in westfall that carved out an exception for bivens. the new context in this case is not only the transnational aspect but also the utilization of the fifth amendment's new process clause.
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the new context itself fails in the argument that there's a lack of a remedy, fails when the court takes into consideration the special factors in this case. intruding on the separation of powers where congress and the executive, that is their domain and national security and the border patrol is national security. the border patrol is the forefront of our national security. the border patrol much like the military is a parent paramilitary organization charged with protecting our borders. congress has chosen and not inadvertently to create a damages remedy and if the remedy is appropriate it's the unique domain of congress to consider the public policy, the balance, the projected cost and it requires assessment of its impact systemwide. the executives is in charge of
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foreign affairs. there's an actual dispute in this case as mexico would like a remedy and the united states has argued against a remedy. >> if we can go back to this complaint. and at this stage, this very preliminary stage, we are supposed to accept the complaints allegations as true. which is, then here we have a rogue officer, acting in violation of agencies own instruction. using excessive force to kill a child at play. how does that call into question any foreign policy or national security policy? >> it would create a chilling effect as to the border patrol agents in conducting their day-to-day activities.
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but not only a chilling effect, the lower courts would be in chaos. >> does that -- doesn't that happen if the shooting happens in our own land? meaning the border patrol agents who sees a child at play and kills him two feet from the line, is not chilled, he knows he cannot do that. what makes it chilling to tell a border patrol agent don't shoot indiscriminately a children standing a few feet from the border? >> we have to accept the facts of the complaint from their face. >> that's correct. >> all right. on their face, the complaint says that's with the border agent did. >> but you can't view it in a vacuum, it would be applicable ... (inaudible) the vacuum. this does not involve a mexican defendant, mexican law or mexican courts. it involves a u.s. defendant,
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acting on u.s. soil, pulling a trigger on u.s. soil, and subject to u.s. law. we're not dragging the patrol border agent to a mexican court. how would we be interfering? i just see you border patrol agent acting on us soil on the trigger on us soil and subjecting the us border agents to a us court. by dragging the agent anywhere else. >> but the agent would know when he took his actions that he was inside of the jurisdiction. >> always knows he's inside and subject to us law.that never changes no matter what we do here. >> that's correct but in this case the petitioners are asking for an extension of the constitution into a foreign republic.
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>> it is extended, you assume the fourth amendment applies so we know this place by picture. it's a called iraq, here to the end of the room and there's a bridge and across this bridge hundreds, perhaps thousands of people walk each day on their way to work or on their way home. now, a border agent who's 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 bivens action and if he is an american and on the other side, you agree he can bring a bivens action. >> that would be correct. >> the only person who cannot bring a bivens action and the border agent has no idea
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whether he's shooting such a person is someone who is just on the mexican side of the imaginary line on the bridge and whom he shot deliberately or rogue or whatever. >> here's the standard, justice kennedy writes it. the necessary inference is that the inquiry that we're after, about whether this is an extension of a bivens action must concentrate on whether the judiciary is well-suited absent congressional action to weigh the costs and benefits of allowing action to proceed. that's my standard, i've given you the facts. what's the problem? we would like, we ordinarily have such actions. the mexicans wanted. they want the action so what's the special problem?
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>> it would become a matter of line drawing. >> there's no line drawing problem, the line drawing problem may come in as to whether the fourth amendment applies here we are assuming it does.and assuming it applies, what's the problem with the bivens action? what's the line drawing problem there? >> it would be the extending of bivens into a new -- >> maybe in hawaii there's never been a action brought before on the 14th island. is that an extension? >> it's not, it's within the united states. >> i understand that and this is on the other side of the line. it was at 7:00 in the evening, 7:02 and there never has been a bivens action brought >> but there's never been an action that involves the transnational today. >> i got that point. all i'm saying is why is that
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different in terms of a problem cause than the fact that it was 7: 0 259 on the fourth island of hawaii? you've got my point? >> i do. >> what is it? >> don't ask my point, i want to know your answer. >> i have to go back to it being different in so much as it is transnational. >> you said that, all i'm asking you is why that makes a difference. whether on the bridge, on the colbert, i won't repeat myself but i went through every factor and it seems to be very similar and i just don't understand it so far what you said is it will freeze the border patrol to which i think good, i don't think there's an american anywhere in the world who wouldn't want to stop the kind of action here that doesn't seem factor cutting against and
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at any rate he can do it if it's an american and he doesn't even know it's an american. >> that would be for congress to decide. >> that's a conclusion and my question is why >> they will 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 an unarmed juvenile and the remedies limit is that. that's the only thing that the court would be deciding, whether there truly was cause or no cause for the shooting. >> but then wouldn't the determination be on an ad hoc basis creating instability in
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the lower court? >> why? what's the greater instability when you already admit that bivens would apply if that child was standing 2 feet from the border and if even, it 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. >> the instability would rise because of the areas where you are at. it's a national border. with the border patrol providing national security. >> what you're basically saying is bivens shouldn't apply ever against a rogue border patrol who stands there shooting people on the us side
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indiscriminately, takes a gun and just sweeps both sides of the border. >> it applies to those standing on the united states side certainly. >> this is bothering me, i'm not happy her here but if we were talking about extending the fourth amendment i would see a problem. i might think we should, i might think we shouldn't but i would certainly say there is a problem but once we say the fourth amendment is there, in just the same way it is two feet 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. >> at that point i hesitate. i say that's what we're supposed to find here under the statute and what is it?
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>> assuming perdue go did not foreclose that. >> if there's no difference, that's the end of it because kennedy says look, he says you've got, he's not talking about the fourth amendment. is actually not even thinking about that possibly, i don't know. we're thinking about sixth amendment, 10th amendment but assuming he is. once we're there, the fourth amendment really does apply. you say you can't think of a difference and i can't think of a difference so we send the case back. now consider the fourth amendment. >> the fourth amendment i believe is foreclosed by verdugo in its language claiming that a us agent even acting on foreign soil is not constrained by the fourth amendment. >> i thought 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
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to the border but i want to press on that because when there before and policy implications even if the victim were a mexican national and killed even on the us side of the border, those kind of incidents create lots of international and foreign policy implications as well so why do foreign policy implications tracked the border so neatly in your view? >> a track the border because the border is a paramilitary area at the border patrols under the guidance of the executive. >> do you agree there could be serious foreign policy implications even from an incident inside the united states with a victim whose a mexican national >> absolutely just as the way there were in this case with the damages remedy asked for by the mexican government. >> can the us government decide or oppose their request for
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damage? >> it's been 40 years and there's been no extension of bivens beyond the trilogy this court has outlined. the extension provides the lower court stability versus an ad hoc application of the law. >> should we think about the lack of alternative remedies? there's no remedy at all which is not unlike all the bivens cases but certainly some of them >> when you look at the myriad of special factors including the separation of powers, national security, foreign diplomacy, public policy and the projected costs i think that creates quite a difference, a different picture and it's better left for congress and the executive to decide and specifically congress to balance the public policy, the limits of the law
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and to provide guidance for this court to interpret the actual statute that they would agree. >> i believe the new context of this nature and a transnational shooting should be dispositive. an injury to a foreign national on foreign soil is untenable because excessive force relates to a seizure as we discussed it covered by the fourth amendment and it's not a substantive due process claim. it would require an extension of limiting to a foreign country where the us maintains no jurisdiction whatsoever, whether de facto or actual. it would create line 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 court and it's very application.
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>> y chaos. it would just extend it and it would apply just like it and applies to lots of cases all the time. >> it would be line drawing, wouldn't it within mark. >> justice soto mayor gave you line and you have a defendant on us soil whose a >> official. >> you can just look at the actions to see whether it was excessive force. i take your point on the new context but i guess the chaos argument is not resonating with me. >> the lower courts have stood on this court's presumption against the extension in order to provide the stability and guidance to them in their decisions, extending it again, extending it transactionally would create a myriad of problems. >> i think i'm a little bit confused. do you or do you not contest, suppose there were a border
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patrol officer used excessive force 10 miles from the border. while carrying out border security operations. >> 10 miles from the border inside? >> is acting within the scope of his deployment, he's trying to find people who have crossed the border. he's engaged in usual law enforcement work. can you bring a bivens action against that officer? >> the is the injury incurring inside the united states? >> it's in the united states but this is border patrol work. this is border security work. >> you could bring the bivens action if he was a rogue actor acting outside of policy which does not present itself here. >> if we are assuming the officer used excessive force you can bring the bivens action, is that correct? >> if it fell outside the policy.
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>> now we're bringing 10 miles up to the border except the person involved, this is mister vladeck's typo, still on the border. >> inside of the border, correct. , it was in the border and 30 is a fasten national security, right? >> correct. >> why when we moved three inches over, there is a different answer. i believe that is the answer that a lot of people have been asking you. >> that's right. >> i believe the border is real, it's a real line and it can't be extended. the constitution cannot be extended into a foreign country. the real one, the way the line draws the phone a real one. usually. the analysis that we go through on the bidens claim, and i
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think it's the analysis that the government wants us to go through, is to ask other special foreign concerns. other national security concerns? the question is, why would be special foreign affairs and national security concerns with respect to a shooting that occurs three inches on one side of the border, personally inches on the other side of the border? or even a little bit away from the border for very much involving border security work? >> it keeps extending into mexico and there would be no line reedit it would keep going and going. it could be all up to allah, all of mexico. it would never end. there would be no difference in a drone pilot in colorado hitting the wrong village in syria. >> we are positing a defendant in the united states and who is committing his action in the united states so unless this is a far-reaching bullet i don't
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>> that's correct and that was the hypothetical i gave you regarding a drone pilot in colorado who happens to have 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 occur in syria. >> thank you counsel. mister wall. >> mister chief justice and may it please the court. a foreign national was killed on foreign soil by a federal officer patrolling an international border. that is a new context for defense purposes and several factors counsel hesitation. foreign relations concerns with mexico and the need for border security, clear extraterritorial and he and clear signals from congress in 1983 in the ftca and it does not approve of damages liability for injuries abroad. abbasi and other decisions have
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made lower courts markedly less willing to apply causes of action for damages. if this court extends bivens here on these facts, it will threaten the reverse that trend undermining this court's consistent message about the importance of caution and judicial modesty in this area. to turn to the first 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 1983 in the ftca forcing damages and lot liability here. they have an active disagreement about what happens here. we have bilateral mechanisms for working out like the border violence prevention council which 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. >> the problem is that the allegations here is not about their meeting and talking about
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policies. it's about road actions and i take a look at the former like the cvb but others who tell me pretty persuasively and extensively that the border patrol might be a bit of a mess. and that disciplining is at a minimum here. investigating, etc. 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 the class you want to create is a class of border patrol agents whether they shoot across the border or shooting in the border. >>. ,,,.
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. . problems the images. -- that is congress >> >> that would have been true in bivens itself where someone could have said there are also two things that control the fbi and we shouldn't extend bivens but we did because there's a fundamental belief that unconstitutional actions that stem from the united states, this agent fire that done from here should provide a remedy. >> as you said in abbasi, was a product in an area. >> but that's what the court said in abbasi. >> that's what abbasi said but
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if you look at bivens itself it was based on a historical finding that road actions even in foreign soil taking a shift in properly, doing other things across the border required a remedy. >> justice if i may their very different. it is certainly true that courts for a long time apply the same common law rules for trespass and arrest to federal officers that they applied to everybody else and that was fine under federal common law and it was perfectly fine under state statutory and common law up to the westfall act but that's not what the court was doing in bivens and that's not the way it's conceived of bivens it's later cases. it was applying a special rule for federal officers directly under the constitution in the absence of statutory authorization. that's a very different animal from what state and federal courts were doing.
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>> at some point i'd like to hear your three reasons. you had three reasons. and i hope that will leave you enough time to go to the same question i've asked 15 times. isn't this all a problem for the fourth amendment? but if you assume the fourth amendment applies, what is the added problem? after all the fourth amendment, suppresses evidence? we are not going to change that are we? if the fourth amendment applies, suppressing evidence will still happen when there is a violation, and after all that is arguable in congress. it creates a mess in the court. okay? what's special about this? >> i'll get to a couple of things quickly, the friction with mexico which is obvious and simplified by this case, to extraterritoriality, i don't have much to add to what justice kavanaugh said. if there were a statute for federal officers i don't think anybody would be disputing that absent him queer indication that it wouldn't pick up an entry across the border and it seems passing strange that this
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express statute didn't get it and implied cause of action wouldn't even if you disagree on that and i think you would say arrest as judgments in this area and call the fda for things that happened across the border and you couldn't get it if you were a state office under 1983 at least as far as we can tell in the judgments, it has recognized that the border is significant because when you're injured abroad you don't work it out through damages lawsuits, you work it out through administrative processes and that's always been how congress has done it. >> i think i need somebody to explain to me a bit the kind of foreign affairs concerns that you're worried about and it's easy to just sort of wave your hands and say foreign affairs when there's been a cross-border shooting but i think it would help me these two have some specifics about what kind of situations you're worried about. you're obviously mexico would prefer that a bivens action be
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given and that's not dispositive by any means but i guess i'm wondering what is the problem? >> the problem is the united states and mexico actively discussed incidents at the border of specific and general policies. as they have for years and for instance cvb revised its use. >> as they did in this case even while the bivens suit was going forward. the claim does not seem to have prevented mexico and the united states from having discussions and negotiations about this incident. >> isn't can you show in every case -- >> i'm looking for every case. >> take this case, we disagree with mexico. and one of them without the agent acted unlawfully and in the other we did a thorough investigation not in the record but i've reviewed all the evidence you concluded he hadn't acted unlawfully. mexico believes we ought to extradite.
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it may believe as a result of this incident are not taking seriously our policy at the border. that's the sort of thing we have an ambassador of foreign minister and they talk about these issues. >> i'm still looking for in one state of the world you don't have a bivens claim in mister hernandez position and in another he does have bivens claim. how does that interfere with the united states foreign policy. >> you really think 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 is your representation credible? you told us last time your officer didn't do anything wrong and your supreme court told you you were wrong. it does undermine the credibility of the executive branch in working with foreign government. >> why wouldn't the united states then say we live in a country in which courts play an important role in determining whether conduct is lawful and
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that's not an embarrassment to the united states or to the executive branch. ,. counsel hesitation as we look at the congress. even if you disagree with melbourne relations, you still have clear signals from congress as -- we know from a chappelle that you weigh the special factor in aggregate. the question is, across all of these things, is there enough here to think that we ought to pause before a traditionally apply a cause of action? or that we ought to leave it to congress? i think that looking at the bounce, there is clearly enough to say, there is a body that can adjust these kind of on the grounds concerns at the border. but it is congress, not the courts. i guess the last thing i'd say, the fifth circuit, looking at this, said. facts are tragic, the court said last time it's a heartbreaking loss of life.
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but said it is not a close case under a bossy. i disagree with the council on the hypothetical, whether inside the line, i don't agree with this. i think that was across the border and you're dealing with foreign nationals on foreign soil, now you cross into it territory where congress is never done. >> are you disagree? >> so the three inches inside the line, what would be the case there? >> it's just foreign nationals going across the border, certainly i grabbed a couple of the special factors are going to apply, extraterritoriality. you've lightly got foreign relations concerns, probably not a bivens action. >> how about during border security-mark. >> again, whether or not you agree with us this is an easy case for all those special factors are triggered. >> thank you, i would supply three minutes. >> thank you mister chief
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justice. i take mister walls answer to justice kagan's last action that the government has changed its position from hernandez one where they argued inside the border hypothetical would be actionable under bivens area i do want to go back to putting this case in the broader context because it's important to understand how historically, the whole way that the tort liability regime worked for government misconduct was that this court and state courts looked to existing common law causes of action and focused on immunity defenses as a way of calibrating the harm that citizens and others faced when injured by government officers against a need to protect officers acting in good faith. that's to judge hand. the court struck this balance by fashioning immunity defenses where the fight would be over whether the officer was entitled to immunity or not and for law enforcement officers specifically this court has long rejected the argument that there should be any context in
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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, seize and arrest, to use lethal force did not justify absolute immunity and instead decided narrower qualified kind of immunity for those most likely to come face-to-face with private citizens to 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 is not consistent with how this court has always understood the relationship between causative action. it is not required by any of this courts decisions. it does not abide by this
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courts suggestion in abbasi that there are strong reasons and powerful reasons to retain bivens and it would eliminate the one deterrent that is meaningfully available to ensure that officers in the nation's largest law enforcement agency are complying with the law. our rule is not case specific. >> before you finish can you address one decision that the government seems to put a lot of stock in. c
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