Duke Law | Dean’s Cup Final Round 2019

Duke Law | Dean’s Cup Final Round 2019

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SPEAKER 1: The Dean’s Cup is
Duke’s premier oral advocacy competition. The Moot Court Board hosts
the Dean’s Cup annually for second and
third-year students. This year’s tournament saw
31 talented students compete in the initial fall bracket
before being narrowed to the 16 semifinalists you see
on the back of your program. We are proud of all
of our competitors and our semifinalists. We are especially proud of the
four final competitors arguing today. For the petitioners, 2L Farrah
Bara and 3L Luke Morgan. For the respondents, 3L Hugh
Hamilton and 2L Jack Smith. We would also like to thank
the following individuals for their incredible
contributions to the 2019 Dean’s Cup. Dean Abrams, Professor
Andrussier, Professor Beale, Professor Metzloff, Sara
Emley and Corinne Crews from the Clerkship Office, Laura
Grisham and Elizabeth Green from the Events
Office, Taylor Clark, Pam Wyatt from Student
Affairs, Bryan Czako and Zach [INAUDIBLE],, and, of
course, all of our faculty who judged both the oral
arguments and the written briefs. Our biggest thank you goes
to the judges who you can read about in your programs. Those are Judge Restrepo
from the US Court of Appeals for the Third Circuit, Judge
Ho from the US Court of Appeals for the Fifth Circuit,
and Judge Moritz from the US Court of Appeals
for the 10th Circuit. This is a case about a
fatal cross-border shooting by a US Border Patrol
agent, petitioner Swartz. Standing on US
soil, Agent Swartz fired across the border at an
unarmed 16-year-old Mexican citizen, allegedly
without justification, killing him on a public street. On behalf of his estate,
the teenager’s mother, respondent Rodriguez, sued Agent
Swartz personally for damages, contending that Agent
Swartz violated her son’s purported Fourth Amendment right
to be free from excessive force and unreasonable seizure. At the Rule 12(b)(6) stage,
a divided Ninth Circuit panel ruled in her favor. Holding one, that a
Bivens action for damages may lie under these
circumstances; two, that the
decedent was protected by the Fourth Amendment,
even though he was a nonresident
alien seized abroad; and three, that Agent Swartz
is not otherwise protected by qualified immunity. Agent Swartz is
challenging those rulings by the Ninth Circuit. Finally, we ask that while the
arguments are ongoing, please silence your phones,
remain in your seats, and refrain from talking. Thank you. SPEAKER 2: All rise. The Honorable,
the Chief Justice, and Associate Justice
of the Supreme Court of the United States. Oyez, oyez, oyez. All persons having business
before the Honorable, the Supreme Court of
the United States, are admonished to draw near
and give their attention. The court is now sitting. God save the United States
and this honorable court. NANCY L. MORITZ:
Please be seated. Welcome, everyone. We will now hear the
arguments in the case of Rodriguez versus Swartz. We’ll hear from the
petitioner first. And I understand you’d
like some rebuttal. Is that correct? FARRAH BARA: Yes, your honor. Three minutes, please. NANCY L. MORITZ: Three minutes. All right. Thank you. FARRAH BARA: Thank you
Madam Chief Justice and may it please the court. My name is Farrah Bara, and
I, along with my co-counsel, Mr. Luke Morgan, represent
the petitioner, Agent Lonnie Schwartz. I will address
Bivens and Mr. Morgan will address the
extra-territoriality of the Fourth Amendment
and qualified immunity. In Ziglar v. Abbasi, this
court called implied causes of action ancient, disfavored,
and a judicial practice that this court has refused to
engage in for over 30 years. But in this case,
the Ninth Circuit extended an implied
cause of action anyway. In doing so, the Ninth
Circuit committed an error and we’re asking this court
to reverse that error. JAMES C. HO: Then
why did you concede that Bivens is available
in the district court? FARRAH BARA: Well, in
the district court level, we were trying to specifically
focus on the qualified immunity issue. However, we weren’t
conceding it. JAMES C. HO: You could walk
and chew gum at the same time. Why did you– you did not– I’m wondering if
it’s even preserved, this Bivens argument that
you’re making, that you seem to think it’s so obvious. FARRAH BARA: You’re
right, your honor. That was definitely a mistake on
our part on the district court level. However, we do contend that
the Bivens analysis still must go forward, because as
this court explained in Abbasi, Bivens is always an
antecedent matter. That is why in Hernandez,
even though that wasn’t the specific cause of action
that was alleged in the circuit court level, in the
Fifth Circuit court, it was still preserved for
the Supreme Court level to send it back down. LUIS FELIPE RESTREPO:
So do you think this Bivens claim is analogous
enough to the original Bivens claim or do we have
to break new ground? FARRAH BARA: No, as the
respondents concede this is a new context for Bivens. And I believe that
is entirely accurate. It’s a new context
for Bivens, because it doesn’t resemble the fact– LUIS FELIPE RESTREPO: They’re
both Fourth Amendment cases, right? FARRAH BARA: That’s
true, your honor. But the same is true for Abbasi. Abbasi was also a
Fourth Amendment case. But in that case,
the court still held that that was a new context
and found that there was– LUIS FELIPE RESTREPO: It
was a class action involving post-9/11 activities. It was very different
than this case. FARRAH BARA: That’s
true, your honor. But there have also
been cases, for example, in which the Supreme Court
found in Carlson v. Green that there was an Eighth
Amendment violation, a Bivens claim for an Eighth
Amendment violation, and then a subsequent case where
this court found that there wasn’t a subsequent
Bivens extension for also an Eighth Amendment violation. And as this court
explained in Abbasi, even a modest extension
is still an extension. JAMES C. HO: But
in what world do we think Congress was
perfectly fine with shooting of an innocent unarmed boy? FARRAH BARA: In no
world, your honor. And, in fact, that’s
why Congress– JAMES C. HO: So it’s not really
that much of a stretch then here. FARRAH BARA: It’s a stretch
because we’re extending monetary damages to this claim. What’s been
authorized by Congress is criminal liability
for this sort of conduct. And in fact, that’s
already occurred. JAMES C. HO: Why isn’t civil
liability lesser included? I’d rather pay money
than be put in prison. FARRAH BARA: That’s
true, your honor. But as this court
explained in Abbasi, civil liability tends
to be more of a problem from a separation of
powers perspective, because it requires an
assessment from Congress about the operations
system-wide. JAMES C. HO: So it’s an
interesting theoretical question, but CBP policy
also prohibits this. So there’s no separation
of powers problem. FARRAH BARA: It’s
true, your honor. CBP policy prohibits
this and then describes as the procedure
that is supposed to result from it a DOJ
investigation and then criminal prosecution. At no point does the CBP
authorize civil liability. Nor does Congress
authorize civil liability for this sort of suit. And as this court
explained in Abbasi, monetary damages tend
to pose a bigger problem or tend to pose a big
problem for individuals because they often make
individuals second-guess their choices. And that’s a bigger problem
from criminal liability, because under criminal
liability the government assesses the claims
before deciding to bring a prosecution. That’s not true of
civil liability, where anyone can bring any
claim regardless of the merits of the case itself. That would subject
individuals to what this court in
Verdugo-Urquidez feared most, which was case
by case adjudications of the government. And that poses– LUIS FELIPE RESTREPO:
But don’t we do that in a lot of
different contexts case by case adjudications
of the government? FARRAH BARA: That’s
true, your honor. But the court in
Verdugo-Urquidez worried about that concern specifically from
extraterritorial plaintiffs, because it alleged that the big
fear was individuals with no connection to the United States
bringing these Fourth Amendment claims, would subject the
United States to a multiplicity of suits, especially
because the United States– LUIS FELIPE RESTREPO:
Well, suppose we write narrowly and
confine a judgment to the shooting in the
back of a juvenile that posed no threat to national
security or anybody else within 30 feet of the border. Suppose we make it real narrow. That alleviate your concerns? FARRAH BARA: It would
not, your honor. Because as this court
explained in Verdugo-Urquidez that narrowness can’t
solve the problem. In Verdugo-Urquidez,
this court was confronted with a singular case. A single Mexican national faced
a seizure in his home in Mexico by the DEA. But the court– LUIS FELIPE RESTREPO:
Everything took place in Mexico. Here, the shooter was
clearly on US soil. FARRAH BARA: That
is true, your honor. That is a distinction between
Verdugo-Urquidez and this case. However, in
Verdugo-Urquidez, the court still analogized
to any US official that exhibited extraterritorial
conduct, because in that case it held that by allowing
for a Fourth Amendment right to proceed, any US official,
including the military, could be subjected to a
Fourth Amendment suit. Even though this case
is a little different, because you have conduct
occurring from the US side of the border,
that’s not significant because the United States
frequently engages in conduct from within the
United States that could result in a Fourth
Amendment violation abroad. LUIS FELIPE RESTREPO: What
if J.A. Was a US national? FARRAH BARA: If J.A.
was a US national, then he would be able to have– there would still be
a Bivens separation of powers and special factors
that counsel hesitation analysis that would
have to proceed, which may prevent a Bivens
action from proceeding. But he would certainly have
a Fourth Amendment right, which my colleague Mr.
Morgan will talk about in a little bit. LUIS FELIPE RESTREPO:
So if he was a national, there would be no Bivens
action in your world? FARRAH BARA: Well, your
honor, even in every– LUIS FELIPE RESTREPO: Yes or no? FARRAH BARA: No, there would
not be a Bivens action. And that’s because in every case
that this court has addressed since 1980, for the last 39
years, all of the individuals were US nationals. All of them claimed
constitutional violations. And yet, none of them
got Bivens actions, even though some of the claims
that they were contending– JAMES C. HO: None of
them were murdered. FARRAH BARA: That’s
true, your honor. None of them were
murdered, but– JAMES C. HO: It seems to
be a [INAUDIBLE] assumption that Congress would not
want to cure and provide an action for, frankly, the
most grotesque violation of a right one can
imagine, which is murder. FARRAH BARA: Your honor they
have provided an action. The action is
criminal liability. And this is a crime. It is murder. It is not a tort. JAMES C. HO: You
think Congress– if the question were actually
presented to Congress– we know they’re
busy, so they don’t answer everything, that’s
why we have Bivens, to infer actions when
it’s appropriate. Do you think Congress,
if actually presented with this question, would say,
you know what, murder is fine, no civil damages? We’ll put him in prison,
but you get nothing. FARRAH BARA: Right. Well, I’m not sure
what Congress would say on this specific
issue, but regardless– JAMES C. HO: Well,
why isn’t it obvious that they would say,
well, of course, damages? FARRAH BARA: Congress
is absolutely allowed to do that, your honor. But the proper
medium as this court explained in Bush v. Lucas,
the inquiry and special factors analysis that counsel
hesitation is specifically who should decide the case,
Congress or the courts? And Congress should
decide this case. Congress may very well
say there should be a civil action in these cases. And if Congress
decides that, that is perfectly fair and
reasonable for Congress to do. NANCY L. MORITZ: But
isn’t one of the questions just whether there is
a remedy available? And is there a remedy– FARRAH BARA: Well, your honor– NANCY L. MORITZ:
–for this plaintiff? What is the remedy, if not this? FARRAH BARA: Well, your honor,
under the criminal liability that Agent Swartz faced,
had he been convicted and found guilty– NANCY L. MORITZ: You’re going
to talk about restitution? FARRAH BARA:
Precisely your honor. NANCY L. MORITZ:
That’s entirely up to the government’s
discretion, first of all, whether they charge. Secondly, whether they
can get a conviction, as can be seen as what
happened in this case. I mean, I think they’re
retrying this individual– Mr. Swartz. LUIS FELIPE RESTREPO: And it
is probably judgment proof. NANCY L. MORITZ: But I mean,
and it may be judgment proof. That’s not a remedy
for this victim. FARRAH BARA: Well, your
honor as this court explained in
Schweiker v. Chilicky the absence of the
remedy does not imply the existence
of a Bivens action. Moreover, as this
court explained in multiple suits, including
Abbasi, and including Melesko and Wilkie v.
Robbins, the existence of administrative procedures,
such as in this case the DOJ investigation, and the
criminal conviction afterward, even if it is up
to the government’s discretion and not as complete of a remedy
as this court could afford, still shows us,
it gives us a hint that this is within
Congress’s domain. And so long as we know that this
is within Congress’s domain, Abbasi instructs
that if Congress might doubt the necessity
or efficacy of this action, the courts must refrain. JAMES C. HO: So basically,
what you’re saying is we’re never going to
do new actions ever again. It sounds like a
categorical rule. FARRAH BARA: Well,
your honor, Abbasi did recognize the continued
force of Bivens actions in the context in
which they arose. So in the context of– JAMES C. HO: What you’re
essentially saying is we’re never going
to extend beyond what the precedents require. Would you at least acknowledge
that that’s essentially what you’re proposing? A categorical rule
nothing new ever again. FARRAH BARA: I
would not say that. I think there can be something– JAMES C. HO: Well, what would
you do, yet not cover murder? That’s what I’m
having trouble with. FARRAH BARA: Well,
your honor, there can be new causes of action. There can be situations
and a new context if the special factors
don’t indicate that Congress should be deciding the issue. But the case is still
pretty similar to Bivens. For example, if
we had a situation that was similar
facts to Bivens, but we had a different agency. Perhaps not the Federal
Bureau of Narcotics, now the DEA, but an
entirely separate agency engaging in that
search and seizure, but still domestically. Then we could argue that
it is a new context, because even a modest
extension is an extension. But the special factors
that counsel hesitation aren’t that strong. LUIS FELIPE RESTREPO:
This was Bivens. I mean, this was a Bivens case. It was a seizure. You agree it’s a seizure? The kid’s dead. FARRAH BARA: This is a seizure. It is certainly a seizure. LUIS FELIPE RESTREPO: It was
a Fourth Amendment seizure? FARRAH BARA: It was certainly
an unreasonable seizure. We do not contend that J.A.
had a Fourth Amendment right. And Mr. Morgan will address
that in a little bit due to the sufficient
connections test under– LUIS FELIPE RESTREPO: Excellent. We’ll look forward to his– FARRAH BARA: Absolutely. But in this case we also
have a case– since we’re looking primarily
at whether or not something is within
Congress’s domain, we’re looking inherently to
figure out whether or not Congress should be
deciding the issue or not. And here, because we
have a situation where there is a national security
concern inherent in customs and border protection,
that is typically within the domain of
Congress, that that issue should be left to Congress. LUIS FELIPE RESTREPO:
So you’re suggesting there’s a national security
concern when the Border Patrol agent kills an unarmed child. That’s a national
security concern? FARRAH BARA: Your honor, I
see that my time has expired– LUIS FELIPE RESTREPO:
Please answer the question. FARRAH BARA: –may I answer
and briefly conclude? LUIS FELIPE RESTREPO: Yeah. FARRAH BARA: No, that is not
a national security concern. What we contend is that Congress
has a rational basis for being able to find that
extending a Bivens action, extending monetary damages
against CBP agents, could pose a national
security concern. Thank you. NANCY L. MORITZ: We’ll
hear from our next speaker. LUKE MORGAN: Madam Chief Justice
and may it please the court. Luke Morgan, for the petitioner,
on the Fourth Amendment and qualified immunity issues. The Fourth Amendment protects
against unreasonable searches. LUIS FELIPE RESTREPO:
Let me start with a qualified immunity. LUKE MORGAN: All
right, your honor. [LAUGHTER] LUIS FELIPE RESTREPO: All right,
so let’s talk about qualified immunity. Why are you even arguing this? Are you suggesting that
the constitutional right not to be shot in the
back didn’t exist? LUKE MORGAN: There is no doubt
that the Fourth Amendment protects a right not
to be shot in the back. But the question is whether
an individual possesses a Fourth Amendment right? And we contend that J.A. did
not possess a Fourth Amendment right. LUIS FELIPE RESTREPO: Because? LUKE MORGAN: Because
he was a non-citizen with no sufficient voluntary
connections to the United States to render him essentially
part of the national community. LUIS FELIPE RESTREPO:
So that would in essence immunize the Border Patrol
from shooting people across the border. They’re standing on the
other side of the border. In your world view, they can
shoot them with impunity. Kill them. LUKE MORGAN: That’s
not necessarily the case, your honor. LUIS FELIPE RESTREPO: That’s
what happened in this case. LUKE MORGAN: Well, in this case
Agent Swartz was prosecuted and a jury of his
peers acquitted him. LUIS FELIPE RESTREPO:
Under the civil context we’re talking about. So you’re immune from
any civil liability? LUKE MORGAN: Well, for
instance, if J.A. was an American citizen,
there would be no doubt that he had a Fourth
Amendment right. But J.A. as a non-citizen
with no sufficient connections to the United States did not
possess a Fourth Amendment right. JAMES C. HO: But
is that the test? LUKE MORGAN: That’s the test
that this court enunciated in Verdugo-Urquidez, which
is the controlling Fourth Amendment precedent. JAMES C. HO: Yeah,
but it seems to me that Justice Kennedy’s
view has prevailed. He didn’t go along
with that test. LUKE MORGAN: That’s
true, your honor. Although, I would note
that Justice Kennedy did join the majority opinion. Justice Stevens, for instance– JAMES C. HO: It is curious
what he did, I agree. [LAUGHTER] But at the end of the day, we
have the Boumediene opinion. It seems to have
overtaken Verdugo. LUKE MORGAN: I don’t think
that’s the case, your honor. And the respondent
argues in her brief, for instance, that
Boumediene clarified the Verdugo-Urquidez test. But Justice Kennedy’s
opinion in Boumediene only makes one reference
to Verdugo-Urquidez. And it’s a see cite to
his own concurrence. That’s a concession
by Justice Kennedy that the Verdugo-Urquidez
majority did not, as the respondent
alleges, essentially adopt his impracticable
and anomalous test. JAMES C. HO: The fact that
the Boumediene majority relies on the Verdugo
concurrence cuts in your favor or against you? LUKE MORGAN: No, your
honor, the respondent alleges in her
brief, for instance, that the majority
in Verdugo-Urquidez, by talking about the significant
and deleterious consequences of extending the right, thereby
adopts a functional test. And therefore, Justice
Kennedy’s concurrence is essentially the controlling
opinion from Verdugo-Urquidez. But if you look at what
Boumediene actually said, Boumediene makes no attempt
to clarify Verdugo-Urquidez. And the court explicitly
limits its holding to the suspension clause, which
is why virtually every lower court since Boumediene has
used the Verdugo-Urquidez test, rather than Boumediene, for
adjudicating bill of rights questions as opposed to
suspension clause questions. And there’s a good
reason for that. The suspension clause
is a structural limit on government power. By its very text, it’s distinct
from the Fourth Amendment, which purports to
be a right held by individual
classes of persons. So it’s the textual basis that
Justice Kennedy objects to. Drawing that from a
strict textualist method. That’s his objection
in Verdugo-Urquidez. NANCY L. MORITZ:
Didn’t Justice Kennedy in Boumediene, if I’m
thinking correctly, didn’t he review about
20 years of case law– extraterritorial cases–
and not restricted to any particular set
of facts or issue? And doesn’t that
suggest that the holding was much broader than what
you’d like to tell us today? LUKE MORGAN: It’s no doubt that
Justice Kennedy in Boumediene alleged essentially a
century-long, in fact, pattern of a functional approach to
extraterritorial constitutional adjudication. And to that point, for instance,
he marshaled the insular cases. But we believe that the
insular cases actually have a different lesson. For example, if you look
at the case of Balzac, which comes down in 1922. It’s the last of
the insular cases. And it’s Chief Justice
Taft’s opinion. He says that the
Constitution applies wherever and whenever
the United States exerts its sovereign power. And as the
Verdugo-Urquidez court notes, when the United States
exerts its sovereign power is when Congress is
the ultimate governing authority for an arena. Now, Justice Taft notes that
the functional approach taken in the insular cases
is a result of the fact that different
constitutional guarantees, by their very nature, have
different applicability to different territories, even
territories that the United States controls. But Justice Taft says in Balzac
that the fundamental rights from the beginning were
incorporated within the United States’ territories. So, in fact, the insular cases,
far from endorsing a functional approach, endorse a
bright line approach where Congress is the
governing authority– the ultimate governing
authority over a territory the Constitution applies. When that’s not the case, even
under the Boumediene test– and we can talk about
the Boumediene test. NANCY L. MORITZ: Let’s
do talk about Boumediene. LUIS FELIPE RESTREPO: But didn’t
all the contact at issue take place within the territory? The firing of the
weapon took place within the territory of
the United States, right? LUKE MORGAN: That’s
true, your honor. And there’s no
doubt, for instance, that the Constitution and
the laws of the United States govern to Agent Swartz’s
behavior when he fired his gun. But the question
in this case is, does the Fourth
Amendment right– does J.A. have a Fourth
Amendment right that he can press against Agent Swartz? So that’s why there’s a
distinction, for instance, between a United
States citizen who’s injured in this
scenario and J.A. who’s injured in this scenario. LUIS FELIPE RESTREPO: What if
he’d been a permanent resident alien? LUKE MORGAN: In that
case, your honor, I think that J.A. would
have a Fourth Amendment right, because citizenship
is not required. The question from
Verdugo-Urquidez is whether you have sufficiently
established yourself as part of the national community. LUIS FELIPE RESTREPO:
What if he’s a DACA? LUKE MORGAN: Well,
your honor there have been cases– for
instance, the Seventh Circuit in the United States
versus Mesa Rodriguez– quoting the Verdugo-Urquidez test, said
that undocumented immigrants have a Second Amendment right. An undocumented
immigrant, specifically, who had been in the
country for 20 years had established himself as
part of the national community. So the language that has emerged
from cases on this question is whether they have taken
on essentially the rights and responsibilities, duties
and obligations of existing within our national community? There is no serious
argument that J.A. had connections to the United
States that rise to that level. LUIS FELIPE RESTREPO:
Grandparents were US citizens, right? LUKE MORGAN: His
grandparents were at the time lawful residents. They’ve since
become US citizens. But your honor, the
Constitution is not contagious. You don’t catch
constitutional rights by interacting with
people who have those constitutional rights. Now, if J.A.– for instance,
if his parents were US citizens and he was full time taken
care of by his parents, then that’s a
different scenario. But all we have here is that
his grandparents were citizens and he was relatively
near the border. He lived in a border town. And it can’t be the case that
mere geographic proximity alone is enough. Turning, as Chief Justice Moritz
requested, to the Boumediene test, briefly. Boumediene enunciates
three factors. The first is
citizenship and status. Both count against J.A. here. He’s a non-citizen. And unlike the
petitioners in Boumediene, he’s not a detainee within the
exclusive control of the United States, which the Seventh
Circuit has pointed out points towards someone having
some constitutional protection. Because if they don’t have
constitutional protection, what do they have? Second of all, we look at
the control of the territory. And I’ve already
discussed this briefly. The question is whether Congress
has control of the territory? And there’s no doubt
that Congress does not exercise de jure sovereignty
over the Mexican side of the US-Mexico border. NANCY L. MORITZ:
But there is some– at least by the
record in this case– it looks like there is some
aspects of control over that just the border itself. That street where this
young man was walking. LUKE MORGAN: It’s
undoubtedly true that the United States exercises
some authority over that space. It does so with the consent
of the Mexican government. That’s not
necessarily the case– JAMES C. HO: That’s kind of
like the lease in Boumediene. LUKE MORGAN: With Guantanamo
Bay, your honor, yes. In that sense, Cuba
consented to it. But there is no doubt
that Mexican law applies on the US-Mexico
side of the border. A Cuban law has no force on
the Guantanamo Bay Naval base. And I think the
difference is best illustrated by imagining the
reaction of the United States if Cuba drove a military caravan
into the Guantanamo Bay Naval base or if Mexico drove a
military caravan along its side of the Mexican border. In the latter circumstance, we
might wonder what was going on, but it wouldn’t
be an act of war. And I think that you can
distinguish them that way. Further, I would argue that
the control the United States exerts over the Mexican side
of the US-Mexico border, relying too much on that
factor points to the problem with the test in general. Which is that the United
States exercises enough control over email servers in Germany
to search those servers. That control test essentially
authorizes a worldwide class of plaintiffs. And that’s the problem here. The final Boumediene factor
is the practical obstacles. Those practical obstacles
mirror the practical obstacles we talk about in
the Bivens context. And it’s primarily
this global class of plaintiffs that is waiting
for a Fourth Amendment right to be recognized. LUIS FELIPE
RESTREPO: Suppose you limit this global
class of plaintiffs to unarmed children
shot in the back. LUKE MORGAN: Well, your
honor, I don’t think that the court can slice– LUIS FELIPE RESTREPO: Well,
we can do whatever we want. [LAUGHTER] NANCY L. MORITZ: Why can’t we? LUKE MORGAN: That’s
very fair, your honor. This court has never before
sliced the Fourth Amendment right, for example, between
a search and a seizure, saying that one person has
a right not to be seized, but not a right
not to be searched. Within the functional
test, we would still have a problem of
looking at the control and looking at the
citizenship status. And with respect to
those two factors, a person whose email is searched
in Germany is no different than J.A. They have had– LUIS FELIPE RESTREPO:
They’re alive. LUKE MORGAN: They’re alive. That’s true, your honor. But in terms of having
their Fourth Amendment right violated, it’s been
violated in both cases if that right exists. And this quandary about
the Fourth Amendment is precisely why the
court can and should end its analysis here. Because as it noted in
Pearson versus Callahan, it’s frequently
the better decision to decide on the
existence of the right rather than the clearly
established prong. Because the facts
are often going to be clearer on the existence
of the right than they are on the clearly
established prong. But turning to that
prong, briefly, this court has said in Al-Kidd
that a right must be settled beyond all
debate before it’s clearly established. And in Pauly versus
White, it clarified that the plaintiff
in the lower court must identify a case that
would give a reasonable officer notice that he was violating
the Fourth Amendment. LUIS FELIPE RESTREPO: Well,
we said the exact opposite in Hope and last
term in [INAUDIBLE].. LUKE MORGAN: Well,
in Hope v. Pelzer, for example, your
honor, this court used the obvious case language. And the respondent
relies on that language. NANCY L. MORITZ: Why isn’t
this the obvious case? It’s so blatant and so obvious
that any reasonable officer would know that
this was not knowing what the status of the
individual he was shooting at was, because that’s what
we have to assume here. It would know that it was
unconstitutional to do so. LUKE MORGAN: Your honor– NANCY L. MORITZ: Why
isn’t this a Hope case? LUKE MORGAN: It’s not a
Hope case for two reasons. First of all, Hope is an
Eighth Amendment violation. And this court has
traditionally kept officers on a tighter leash with
respect to the Eighth Amendment than it has with the
Fourth Amendment. That’s why, for example,
the Fourth Amendment has a good faith exception. There is no good faith
exception for cruel and unusual punishment. But second of all, this
isn’t an obvious case, because of the exit– may I briefly conclude? NANCY L. MORITZ: Please do. LUKE MORGAN: Because
the existence of the border in between
the officer and the victim, the fact that it’s a
cross-border shooting, calls into doubt
the very existence of the constitutional right. The question is not
whether the officer could have known that he
was doing something wrong or even committing a murder. The question is
whether the officer could have known that he was
violating the Fourth Amendment. And that’s not the case here. LUIS FELIPE RESTREPO:
So under your analysis, if J.A. had been a
permanent resident alien or a DACA, Fourth
Amendment protection would’ve attached, right? LUKE MORGAN: That’s
true, your honor. Although, the Bivens– LUIS FELIPE RESTREPO: Right. Yeah, I get that. But because he was
a Mexican national, he doesn’t have that
Fourth Amendment right. That’s what you’re telling us? LUKE MORGAN: That’s
correct, your honor. Now, the citizenship
doesn’t matter for the purpose of the
clearly established prong, because the officer didn’t
know J.A.’s citizenship status. And that’s why under
Pearson versus Callahan, this court should decide
this on the existence of the Fourth Amendment right,
because otherwise the court would be in the
position of saying that a right was
clearly established and that it did not exist. Thank you. NANCY L. MORITZ: Thank you. We’ll hear from the petitioner–
or the respondent, I’m sorry. HUGH HAMILTON:
Madam Chief Justice and may it please the court. My name is Hugh Hamilton. And I, along with my
co-counsel, Jack Smith, represent the respondent,
Araceli Rodriguez. I’ll discuss why
a Bivens action is appropriate and
necessary to remedy Rodriguez’ loss of her son. Mr. Smith will discuss why the
Fourth Amendment prohibited Agent Swartz from shooting
without justification a child and why Agent Swartz is not
entitled to qualified immunity. Decided by this court
nearly 50 years ago, Bivens recognizes
the right of one harmed by an unlawful search
and seizure of federal law enforcement to seek
a damages remedy. In that case– JAMES C. HO: That’s exactly
your problem, right? I mean, 50 years ago we did
implied rights of action very differently than what we
do today ever since Sandoval. HUGH HAMILTON: That’s
true, your honor. The general approach to implied
causes of action has changed. But as recently as
Ziglar v. Abbasi, this court reaffirmed the
continued force and necessity of Bivens in the
search and seizure context in which it arose. JAMES C. HO: We said
it’s disfavored. HUGH HAMILTON: Bivens’
remedy is not disfavored. Expanding Bivens to contexts
for which it is ill-suited is disfavored. JAMES C. HO: You acknowledge
that this is an extension? HUGH HAMILTON: This is a new
context as a factual matter, your honor. Certainly, a
cross-border shooting is factually distinct from the
search and seizure in a home. But it is not diverged
as a structural matter. And that is what this
court’s Bivens jurisprudence is trying to suss out. Whether the differences
between a claim and Bivens, in the first instance, create
separation of powers concerns? JAMES C. HO: Bivens
doesn’t involve any international
diplomacy concerns. This one has those
concerns in spades. HUGH HAMILTON: Your honor,
this does not actually implicate diplomatic
discussions. Certainly, the United States– JAMES C. HO: The assassination
of a foreign national doesn’t implicate
international concerns? HUGH HAMILTON: It
certainly implicates international concerns,
but it does not impinge on the diplomatic
prerogatives of either of the political branches. NANCY L. MORITZ: Weren’t there
ongoing negotiations here between our two governments,
because of this occurrence? HUGH HAMILTON: Your honor– NANCY L. MORITZ: In this very
case we had those concerns. HUGH HAMILTON: Your honor,
there are ongoing discussions between the United
States and Mexico on a whole host of issues
related to the border. NANCY L. MORITZ: But
this was significant. This was significant. HUGH HAMILTON: Certainly, this
featured in the discussions. But the discussions
were not for the purpose of resolving this claim. Certainly, that would
be a stronger instance of diplomatic prerogatives. But here, this is the single
claim of an aggrieved mother. And the civil
adjudication of that does not withdraw any
option or prerogative from the political branch. Certainly, Mexico has
expressly consented to a remedy here by virtue of their letter. And so it’s hard to
imagine how this actually impacts any option
that the executive may have had in these negotiations. And the petitioner’s
recitation of certain cases in which this Court has
declined to extend Bivens beyond the search
and seizure context, it’s easy to overlook the
fact that those cases were themselves outliers. In several of those
cases, plaintiff sought to sue an entity
defendant, which is plainly at odds with the
purpose of Bivens, which is the deterrence of
individual law enforcement officers from violating
the Constitution. And in other cases, there was
a comprehensive remedial scheme that evidenced
Congress did not view damages remedy as necessary
in those circumstances. LUIS FELIPE RESTREPO:
What’s your response to counsel’s argument that
this would open, in essence, the floodgates of litigation? Servers in Germany,
all sorts of incidents on the border,
everybody would all of a would be a plaintiff
in US district court. HUGH HAMILTON: Your
honor, that argument is to some extent
always available whenever we’re dealing
with an extension of Bivens as to a foreign national. But what’s essential
here is that the conduct occurred in the United States. Everything that Agent Swartz
did when he pulled the trigger was from his duty
station in Arizona. And that’s a critical
distinction for two reasons. First– LUIS FELIPE RESTREPO:
Well, counsel is going to say all the searches
of the computers in Germany were done in the United States. HUGH HAMILTON: Well, your
honor, the touchstone of whether a claim is
domestic or extraterritorial is what is the sort of
conduct the Congress sought to regulate. That comes from this
Court’s jurisprudence on the presumption against
extraterritoriality. And although that is an
admittedly awkward fit in Bivens, which is a judicially
implied cause of action, there are reasons to
consider a presumption against extraterritoriality
in Bivens extensions. This was the argument made
by then Judge Kavanaugh in his concurrence in Meshal v.
Higginbotham in the DC Circuit. In that case, foreign nationals
were detained and interrogated in the Horn of Africa. And that was a presumption
against extraterritoriality concern, because the
conduct of those officers was outside of
the United States. And I would argue that
similarly the search of a foreign computer
would implicate those same presumption against
extraterritoriality concerns. And so we’re a court faced
with an extension of Bivens to a truly extraterritorial
claim involving something far removed from the
United States interests, that would be a special
factor counseling hesitation. But the other special factors
that the petitioner has invoked here really don’t carry water. The petitioner discussed in
abstracts a national security impact. But we know two things
from this Court’s decision in Ziglar v. Abbasi. First, that search
and seizure claims are the best sort
of Bivens claims. And second, that
national security is not a talisman used to
ward off inconvenient claims. Those propositions,
taken together, means that we have to define
an impact on national security with a greater
degree of precision than the petitioner
has done here. JAMES C. HO: What’s more
relevant to national security than border security? HUGH HAMILTON:
Certainly, your honor, border security is important
to national security. But it’s not enough
to invoke the fact that the defendant’s employer– Border Patrol– plays a
national security role. If that was the case,
we wouldn’t have Bivens, because the defendants there
were what is now the DEA. And certainly, the DEA plays a
very similar national security role as does Border Patrol. They are certainly involved
to a similar extent on the border with drug
interdiction activities. And when you consider the
universe of federal law enforcement officers
that have the authority to use force on behalf
of the United States, it’s hard to imagine
an officer that doesn’t play some sort of
national security role. Whether it’s an FBI agent,
CIA, DEA, or Border Patrol, everyone is entrusted
to use force on behalf of the United States. JAMES C. HO: I
think it’s a stretch to say that every domestic
crime triggers national security concerns. This is an actual border
issue involving the death of a foreign national. HUGH HAMILTON:
Certainly, your honor. But it has none of the hallmarks
of national security concerns that this court invoked
in Ziglar v. Abbasi, and lower courts have invoked. For example, the problem
in Ziglar v. Abbasi was not the fact that
the defendants were national security personnel. It was the fact that
they were the attorney general and the FBI director. And ensuing figures that
senior what the plaintiff there was doing was infecting a
backdoor attack on the United States policy response to 9/11. LUIS FELIPE RESTREPO: So if
you were writing this opinion, how would you define
the extension of Bivens to satisfy us that it’s not
going to open this Pandora’s box of horribles. HUGH HAMILTON: Your
honor, it would be cross-border uses
of excessive force by law enforcement agents
acting in the United States. And it’s not even the
case that this court has to arbitrarily
confine its holding. The existing doctrine of
Bivens does that for you. Because whenever there is any
meaningful factual distinction, the court has to perform the
special factors analysis anew. And that inquiry will catch
anything that causes structural or separation of
powers concerns. NANCY L. MORITZ: I’m sorry. I was going to say, I
have some discomfort in extending a
judicial remedy when Congress itself in
creating private remedies under the FTCA or
Section 1983, would not have extended it to this
extraterritorial circumstance here. What does that tell
us about what Congress might do or intend here? HUGH HAMILTON: Well, your
honor, the existence– NANCY L. MORITZ: I understand
it’s kind of a strange thing to compare at this point. HUGH HAMILTON: It is. But the existence of an
alternative remedial scheme is significant
only insofar as it advances congressional
skepticism of the need for a damages remedy. And none of the remedial schemes
that petitioner has invoked does that. The FTCA does not do that. The availability of criminal
restitution does not do that. And Section 1983
does not do that. To go in that– JAMES C. HO: 1983
specifically limits relief to people within the
jurisdiction of the United States. HUGH HAMILTON: Yes, your honor. And there are two reasons
why that’s not relevant here. First, 1983 and Bivens have
never been symmetrical. 1983 actually permits
claims for violations of certain statutory duties, as
well as constitutional rights. And second, there is
something inherently federal about borders themselves. Congress would
have had no reason to think that state or
local officials would be regularly engaging
in border patrol or cross-border activities. So there’s nothing conceptually
odd about the fact that– NANCY L. MORITZ:
State border officials that are on the border perhaps. I mean, or in areas
near the border. State officials might not have– I understand they’re
not Border Patrol. But– HUGH HAMILTON: Well,
your honor, in light– NANCY L. MORITZ: –states that
are on the border, perhaps. They might have anticipated. HUGH HAMILTON: Your
honor, it’s certainly difficult to impute
congressional intent one way or another with respect
to the border in light of 1983’s legislative
history, which was, of course, a reaction
to the reconstruction. But there is
nothing conceptually awkward about the fact that
a federal agent’s liability for cross-border misconduct
might be different than a state or a local
officer, simply by virtue of their propensity to
engage in that conduct in the first instance. And the FTCA is similarly
irrelevant here. The fact that Rodriguez
could not bring an FTCA claim for this conduct, by virtue of
the foreign country exception, says nothing about Congress’s
general predisposition towards extraterritorial claims. And that is because the foreign
country exception was motivated by choice of law concerns. Congress did not want
its agents subjected to the laws of a
foreign sovereign. And that concern completely
washes away in Bivens, because the law is invariably
the Constitution of the United States. And finally, the
petitioner’s reliance on the availability of
criminal restitution completely allides the focus
on congressional intent, because criminal prosecution
is always available whenever there is a crime. But it’s not the
victim’s remedy. It’s the people’s remedy. And the availability
of restitution is certainly speculative. It depends on meeting a beyond
a reasonable doubt standard. And it’s not going to be
coextensive with the remedies that would be available
in a torts suit. So that would result in
the perverse situation in which the more serious
the intrusion rising to the level of an
independent crime, the less relief that
would be available. Finally, this is not
an attack on policy. This does not impede
any national security investigation. And this is not in
any way impinging on the prerogatives of the
political branches, which is the touchstone of
the Bivens inquiry. The United States has an
incontrovertible interest in regulating the conduct
of its own officers, acting on its own
soil, and using force in the name of
the United States. For that reason, this
Bivens claim should proceed. Thank you. NANCY L. MORITZ: Thank you. JACK SMITH: Madam Chief Justice
and may it please the court. Jack Smith for Ms. Rodriguez. I will be discussing why the
Fourth Amendment prohibited this unlawful shooting and
why qualified immunity is unavailable to
insulate this conduct. Your honors, this case asks
whether a US law enforcement agent standing on US soil must
answer to our Constitution when he fires his
weapon across the border and shoots an unarmed
boy in the back 10 times? He must answer for this
conduct for two main reasons, your honors. First, this court
has rejected the kind of formalistic
extraterritoriality inquiry on which petitioner
relies to exclude J.A. from the
Constitution’s protection. And second, the facts
known to Agent Swartz at the time he decided to
pull the trigger present the most obvious case of an
unreasonable use of force than one can imagine. Now, your honors– JAMES C. HO: When it comes to
the question of whether our law applies or not,
why wouldn’t that be the very situation where we
would want to be formalistic? Wouldn’t we want an
on/off switch rather than a sliding scale? JACK SMITH: Your honor, it
seems in the abstract perfectly logical to suggest that a
bright line would be desirable. But this court has foreclosed
that kind of inquiry. JAMES C. HO: It’s far from
clear to me that that’s true. Verdugo-Urquidez remains
the law of the land. JACK SMITH:
Certainly, your honor, Verdugo remains the
law of the land, but there are elements
of that opinion that have been clarified by
the Boumediene opinion as we pointed in our brief. JAMES C. HO: Does
the suspension clause include the words, the people? JACK SMITH: No, your honor,
the suspension clause does not. But the– JAMES C. HO: In Boumediene the
analysis of Verdugo remains. I mean, you may be asking
us to overturn Verdugo, but it remains intact. JACK SMITH: Your
honor, I don’t think we have to overturn the parts
of Verdugo that are that court’s necessary holding. I do think this court needs
to recognize dicta in Verdugo, and that’s to the extent that
the reliance on the language of the people and the
ratification history in the majority’s opinion
there, those reasonings have no bearing on the
ultimate holding of that case that the warrant requirement
is impracticable and can’t be extended extraterritorially
for the home of a foreign national. Now, that’s because Justice
Kennedy’s crucial fifth vote joining the majority relied
on a subset of the reasoning of the majority. And he said as
much in the opinion that he placed no weight on
this notion of the ratification history or on this
text of the people, and said he placed great
weight on the notion that extending the Constitution
abroad is permissible, unless doing so would be
impracticable or anomalous. Now, he didn’t pull that test
out of thin air, your honors. That language comes directly
from Justice Harlan’s concurrence more than
a half century earlier in Reid against Covert. And Justice Harlan’s concurrence
there didn’t make it up either. It drew that concept
from analysis of in re Ross and
the insular cases more than a half
century prior to that. And your honors,
Justice Harlan said that in re Ross and
the insular cases hold that the particular
local setting, the practical necessities,
and the alternatives available are relevant to a question
of extraterritorial judgment. And so it’s Justice Harlan’s
initial accumulation of factors that informed
the court’s later reasoning in the 21st century
in Boumediene. And that’s the factors that
led to this tripartite test that Mr. Morgan referred to. NANCY L. MORITZ:
That tripartite test, if we apply– if we continue on
with that here, the first two factors don’t seem to
support you at all. JACK SMITH: Your honor, that’s
of no moment in this case, because those are
non-exclusive factors and they’re not
each dispositive. It’s not– NANCY L. MORITZ: So we
don’t weigh them at all? JACK SMITH: Absolutely,
they’re weighed. And I think– NANCY L. MORITZ: And
do you agree that they both seem to weigh against you? JACK SMITH: I do not
think all of the factors weigh against us. No. NANCY L. MORITZ: What
about the first two? Yeah, let me see– JACK SMITH: So I think you’re
referring, your honor– NANCY L. MORITZ: The
first one was just the lack of citizenship. The second was the– JACK SMITH: Nature
of the location. NANCY L. MORITZ:
Nature of location. Right. JACK SMITH: So, your
honor, I think certainly citizenship and status
of the claimant we think that weighs against us. But that’s of no moment,
because that didn’t matter for the Boumediene court
either, where not only were the claimants
not US citizens, they were, in fact, alleged to
be enemy combatants detained abroad. Now, the second
factor, your honor, if applied directly as the
way it was in Boumediene, would certainly
weigh against us. We do not allege that there
is de facto sovereignty over the area near the border. But we don’t think
that’s necessary in the Fourth Amendment context. We think that the factors
can be given different weight and different levels of analysis
in different constitutional contexts. And so what might be relevant
for the habeas context, namely absolute sovereignty and
the history of dominion and the common law, as
Justice Scalia pointed out in his dissent in that case,
and as Justice Kennedy addressed in the majority opinion. Dominion and
sovereignty have long played a crucial role in
the habeas corpus context. But in the Fourth Amendment
context, your honor, and in the nature
of trial rights, in particular, those
considerations melt away. And this becomes
clear when we compare the past cases of Eisentrager
and Reid against Covert. So in Eisentrager, this Court
said that habeas corpus rights did not extend to enemy
combatants detained abroad at Landsberg prison in Germany,
for a whole number of factors, including the fact that allies
would depend on how we treated these particular war criminals. The fact that we’d have
to use World War II era transport to bring the
body over to a court of competent jurisdiction. But in Reid against Covert,
just seven years later, that was of no moment when
determining the trial rights of those abroad in
England and Japan and the wives of
American servicemen. And so the practical
considerations between those two locations
would be different depending on the nature
of the right invoked. And so the same is
true here, your honors. That a Fourth Amendment
right does not implicate the same kinds
of absolute control that habeas corpus does. But that also doesn’t
mean that that’s the only way in which
location could be relevant, because as your honors pointed
out in the petitioner’s argument, the facts
in this case do allege some amount of
control over that area. And we don’t think of
it in terms of control, we think of it in terms of
surveillance of routine, regularly being patrolled. We think about it in terms
of being subject to seizure from the United States
side of the border. And this court need look
no further than page 54 of the appendix for the picture
of [INAUDIBLE] International along the edge of
the border wall, and we see that
they run perfectly parallel with about 50
feet separating vertically the top of the wall from the
road on which J.A. was shot. And so, your honors, we submit
that the nature of the location is relevant here. And from that, we derive one
of our core limiting principles that we advocate today. And that is, being
subject to seizure from the US side of
the border and being in an area that is under the
surveillance and regular patrol of the United States. And I think this goes
to Mr. Morgan’s– JAMES C. HO: You got a
border town also in Verdugo. JACK SMITH: Absolutely. JAMES C. HO: So
what’s the distinction you’re attempting to draw
between those two cases? JACK SMITH: Well, your
honor, this goes back to the distinction between
the rights being invoked. And now that is a
Fourth Amendment case, but it’s crucial to distinguish
the warrant requirement is what the court was really
addressing there for a search abroad. And six members of this
Court had no problem– even in the dissent Justice
Stevens had no problem– suggesting that the warrant
requirement could not be practicable abroad. And while petitioner’s suggest– LUIS FELIPE RESTREPO: But
wasn’t all the conduct– the government’s conduct–
in Mexico in that case? JACK SMITH: That’s right. But we think that that’s not– that particular fact in the
search context is of no moment. LUIS FELIPE RESTREPO:
But doesn’t that help you in this case? JACK SMITH: Certainly,
we think so. But we do want to be
careful to clarify that we don’t think the
warrant requirement needs to be extended abroad. That the warrant requirement
is impracticable and anomalous to extend abroad. But we think that’s perfectly
severable from the search and seizure protections– the seizure protections, in
particular, in this case. And there’s nothing
unusual about– JAMES C. HO: Is there any
precedent for chopping up the Fourth Amendment that way? JACK SMITH: Terry
v. Ohio, your honor. The idea that this court
recognized a stop and frisk is both a search and a
seizure and that warrants aren’t required there. There’s any number of
search and seizure precedent for this court in which
warrants are not required. And so that
requirement is actually frequently severed from the
rest of the Fourth Amendment. JAMES C. HO: Then more just
that the jurisdictional analysis would vary. JACK SMITH: Your honor, I think
the insular cases would do us well here. In the sense that, as
Mr. Morgan pointed out, there are separate
rights– there were certain fundamental
rights recognized to apply from the beginning
where the US exercised sovereign power
abroad in territories, even before they
were incorporated. But that did not mean that
all constitutional rights applied always and everywhere
is the language in the Balzac case from 1922. And, in fact, the court
was willing to parse different rights because of
the unique historical judicial systems of those nations. Before becoming part
of the United States or before not even
joining the United States, that certain
constitutional rights applied from the beginning
in those territories. Now, your honors,
while petitioner wants to rely on his
extraterritoriality argument to suggest that the law here
was not clearly established, I think, as your
honors recognized, that quickly falls apart when
we look at what actually must be proved for the clearly
established inquiry for qualified immunity,
because it’s about whether the officer had notice. Whether it’s fair
to hold an officer liable in this
situation, so that when they are facing
split-second decisions and exigent
circumstances, they’re not second-guessing their
conduct about mistakes of law. Here, there are none of
those concerns present. And as your honor, Chief
Justice Moritz pointed out in the petitioner’s
argument, we can’t rely on any question of
citizenship or contacts, because that was unquestionably
unavailable to Swartz. And so in the context
available to Swartz, the question we ask for
clearly established law is whether it was
clearly unreasonable for him to shoot a child in the
back 10 times for no reason? And this court
doesn’t need to spend too long on that question. And your honors, it’s because– NANCY L. MORITZ: How does the
extraterritorial part of it factor into it? JACK SMITH: Well, your honor– NANCY L. MORITZ: We’ve
been debating that for the last half hour or so. And so what makes
this clearly establish that portion of the inquiry? JACK SMITH: Well,
your honor, I think petitioner must concede
that if J.A. was a citizen, or if this court
were to determine that he had sufficient contacts,
that he would have enjoyed a Fourth Amendment right. In fact, I’m pretty sure
petitioner conceded that point. LUIS FELIPE RESTREPO:
He did concede that. JACK SMITH: Yeah. And so that law is certainly
clearly established. And what we’re really
looking at here then is just the fact
of a child walking away from the officer from
a distance of about 30 feet, not running, not in a vehicle. And we need to look no further
than this court’s recent cases on the use of force
qualified immunity. Mullenix v. Luna, three
years ago, this court suggested that the
proper inquiry is not some abstract inquiry
of the use of force, because that obviously has
been clearly established for more than 30 years. And so– JAMES C. HO: The Fifth
Circuit went the other way. So how is it possible
that we’re going to hold a border agent
to a legal position that even the Fifth
Circuit didn’t figure out? JACK SMITH: Your honor, I
think this court is certainly entitled to suggest that the
Fifth Circuit was mistaken. And that’s our position, is
that the Fifth Circuit was– JAMES C. HO: We’re
going to hold the border agent to a higher standard
than the Fifth Circuit? JACK SMITH: Yes, your honor. [LAUGHTER] There’s certainly a circuit
split on this exact issue right now. And we think this court
can resolve that issue by setting down a clear line
that when an officer does not know the nationality or
contacts of his victim, he must exercise reasonable
care of any officer. And no reasonable
officer in this position would have thought it
necessary to protect his life or the life
of someone else. And so as this court
said in Mullenix, the proper inquiry
is whether it was clearly unreasonable for
the officer in that position to take the action he did? LUIS FELIPE RESTREPO:
Citizenship even matter in that analysis? JACK SMITH: No. All that matters are the
facts that Agent Swartz could have known. And even if there were– LUIS FELIPE RESTREPO: You
can’t shoot a kid in the back. JACK SMITH: That’s our
position, your honor. And that comes pretty clearly
from Tennessee v. Garner. And I just want
to briefly address this notion of the
high level of the law, because it’s certainly true that
Tennessee v. Garner might not be the controlling
law in many cases, but that’s because the role
of precedent in this inquiry is to distinguish the hazy
border between reasonable law enforcement conduct and
unlawful unreasonable searches. There’s no hazy
border in this case. And so the role of
precedent diminishes. And this court’s
reiterated time and again in the Fourth Amendment context,
in Brosseau against Haugen, Mullenix v. Luna,
Kisela v. Hughes last term, that
Tennessee v. Garner will provide sufficient
clearly established law in the obvious case. That’s the Hope
analogy, your honor. And so it has been connected to
the Fourth Amendment context. NANCY L. MORITZ: Your
more difficult prong is the actual constitutional
violation here, I think, isn’t it? JACK SMITH:
Certainly, your honor. NANCY L. MORITZ: It
seems like it’s off in the reverse of that
for the plaintiffs. JACK SMITH:
Certainly, your honor. We do think it’s the
more difficult prong. And we’re not suggesting that
that law was entirely settled. But we do think by
this point, Boumediene has clarified the correct
test and has made clear that this century of
precedent has identified this common thread of
impracticability and anomalous results being the ultimate test. And so we look to the
ultimate limits of action from the United States– JAMES C. HO: To be clear,
you’re asking for an extension of Boumediene right? I mean, that involved a US
lease of over 100 years. We don’t have anything
close to that here. JACK SMITH: It’s an
extension in so far as we’re recognizing the
nature of the location is relevant in ways
beyond de facto control. So if we’re thinking
about Boumediene as purely about de facto control, then
it would be an extension. But we don’t think
that’s ever really been the inquiry based on
the insular cases and Reid against Covert, where
we didn’t suggest we had absolute control
over England or Japan, and we’re willing to extend
rights to those places, or to the Philippines
and Puerto Rico. And so we don’t think that
presents a particular problem here. Now, your honors, this
court’s jurisprudence for over 100 years has
identified this common thread of impracticability and
anomalousness and practical considerations. And here, as my colleague
Mr. Hamilton pointed out, there are no real
practical limits or practical
obstacles to extending or to recognizing
the right here. And there can be no more
obvious case of an unreasonable use of force than shooting an
unarmed child in the back 10 times. Thank you. NANCY L. MORITZ:
Thank you, counsel. Rebuttal? FARRAH BARA: Thank
you, your honor. I’d just like to
address two issues. First, the national
security issue under Bivens and then I’ll talk
about the control theory under Boumediene. If there’s time
I’ll also address what exactly needs to be clearly
established in that analysis. First, national security. Mr. Hamilton pointed
out correctly that national security
shouldn’t be used as a talisman. But as this court
explained in Abbasi, the main reason we
have that concern is for domestic issues for
when there are violations domestically. And as Justice Ho
correctly pointed out, it is a stretch to say that
every domestic crime involves national security. Moreover, it’s
important to clarify what exactly this court needs
to find under special factors analysis. As this court has explained
in every case for the last 39 years, all that is required
is hesitation, not certainty. This court does not need
to be certain that there is a national security concern. All that is required
is that Congress might find that there is a
national security concern. And in the words of Abbasi,
if the court finds that, then the court must refrain. Second, under
Boumediene, this court did establish a control theory. And today, Mr. Smith
brings up a novel theory, which is that the Fourth
Amendment requires a lower level of control
in order to extend it extraterritorially. However, that is simply
ignoring the main concern of Verdugo-Urquidez. As the court in
Verdugo-Urquidez explained, that extending the
right in that case would allow for a global
class of individuals who could bring Fourth Amendment claims. And even though it is true
that the United States exerts some control, it’s not justified
why that exertion of control would establish a Fourth
Amendment right here. Especially, because as
Justice Restrepo pointed out, the United States theoretically
has enough control to search the
computers in Germany. And because every search
and seizure to some degree requires some control it
seems like a strange line to say that you’d need
a lower level of control for the Fourth Amendment
when every Fourth Amendment violation requires some level
of control in the first place. Finally, on the clearly
established front, it’s important to note
what exactly needs to be clearly established. And as this court has repeatedly
told the Ninth Circuit, in particular, what needs
to be clearly established is that the right at issue is
established with particularity. And as this court has
instructed, if there is even some doubt, then
this court needs to find that that right is
not clearly established. In al-Kidd, this court
said the right needs to be settled beyond debate. Here, we might
have facts that are similar to Tennessee v. Garner. But they are different
in one crucial capacity– a border. And that is not a meaningless
line in the sand in Arizona. That is a distinct
legal definition. Because of this
different category that at the very
least raises doubt, the issue is no longer
settled beyond debate. JAMES C. HO: What you’re
saying is Fifth Circuit judges are reasonable? [LAUGHTER] FARRAH BARA: I am saying Fifth
Circuit judges are reasonable. JAMES C. HO: I just wanted
to have your argument. NANCY L. MORITZ: Yes. [LAUGHTER] FARRAH BARA: If
Fifth Circuit judges had some debate about it,
then at the end of the day it is reasonable that Agent
Swartz in the words of Abbasi, could not have
known and would not have predicted that he was
violating the Fourth Amendment in what he did. Thank you. NANCY L. MORITZ:
Thank you, counsel. We are going to take this matter
under advisement very briefly. And the court will be
in recess until we do. SPEAKER 2: All rise. The Supreme Court of the
United States is now in recess. [APPLAUSE] [SIDE CONVERSATION] NANCY L. MORITZ:
Speaking of thank yous, I want to say a thank
you to Bryan Czako. He’s your Moot Court President. Where’s Bryan? There. Thank you. This whole event was so well
put together and well staged and professional. So thank you. And to your Dean’s
Cup coordinators. Can they all stand up? Jack Lucy, Logan Paige, James
Murray, and Tyler Zollinger. Nice job. Thank you, guys. [APPLAUSE] And I don’t know who
all you are, but I want to thank all the
participants that participated in this particular competition. We were told there were
quite a number of you and that this has been
quite a long process. And that there were some
excellent competitors and it’s hard to
fathom that considering how excellent the four
of you were here today. But I just can’t
think of anything that you could do for
yourself and your careers that would be more helpful
than this process that you’ve gone through. So to all of you who didn’t make
it to these seats, great job, and be proud of yourself
and your involvement. I also want to thank on behalf
of the three judges the Dean. She has been so welcoming
and so hospitable. We all want to just
come back here and live. [LAUGHTER] And spend our days here
at Duke Law School. This is great. Yeah. And Sara Emley– where’s Sara? Sara, thank you. Everything you’ve done
to coordinate this has made it so easy
for us and it’s just been a tremendous experience
being here at Duke. So thank everybody
who’s been involved. If I’ve missed
anybody, I apologize. And we have made our
decision, so we’re going to go ahead and
tell you that before– and king of stop the
suspense, if that’s all right with all of you. And then we just
have a few comments. Is that all right with you guys? The best team– very
difficult decision, but we have chosen
the petitioners. [APPLAUSE] And the best oralist
is Mr. Jack Smith. [APPLAUSE] You and all four stand up. That was just tremendous. I tell you why. [APPLAUSE] And I normally try to give
some balanced comments. I don’t have– I can’t think of anything
to offer the four of you. I want you to appear in front
of me at the 10th Circuit Court of Appeals as soon as possible. All four of you. It was just tremendous. Obviously, you each
had a complete command of the case law. Your advocacy skills are
some of the best I’ve seen. I’m speaking about
all four of you. So it was incredibly
well-balanced. I loved the problem, by the
way, because the problem allowed for that balance. But honestly, I thought
you were all professional, all courteous in the way that
you responded to our questions. And appropriate
in every respect. I’m sorry I’m not giving
you anything here. But honestly, I just don’t– oh, I don’t often get
to see this caliber, even though we see some very
well-qualified and capable practitioners in our circuit. LUIS FELIPE RESTREPO: I thought
you folks did a wonderful job. And among the things
that most impressed me is how well you
responded to the questions. It’s something that you should
really be proud of yourselves. You listened to the questions
and you answered them. You didn’t shy away from
the difficult questions and you did in a very
polite deferential manner, which is important. Whoever wrote the problem
deserves a big shout-out. Is the author of
this problem here? Have I met the author
of this problem? [LAUGHTER] NANCY L. MORITZ:
Oh, there he is. [APPLAUSE] LUIS FELIPE RESTREPO:
Thank you, Professor. I’ve done a lot of these. Not a lot, but several. And this is by far
the best problem. It really presented great
issues on both sides of the V, so thank you very much. And Dean, thanks again for
inviting me– and Sara. But you folks were great. I mean, I couldn’t agree more
with Madam Chief Justice here. You’re all more than
welcome in the Third Circuit and anywhere else you
might find yourselves. Good luck to you. JAMES C. HO: I just want
to echo what’s been said. In my relatively short
judicial tenure– I’ve had four moot
courts so far– and this was I think
by far the most even. NANCY L. MORITZ:
You’re a busy guy. [LAUGHTER] JAMES C. HO: But I
mean, honestly, this was the hardest call of
the moot courts I’ve done. NANCY L. MORITZ:
Yes, absolutely. JAMES C. HO: You all were
just exceptional and very– the differences were
extraordinarily infinitesimally small. So congratulations to you all. This was an interesting
moot, because it was actually fairly realistic. There were moments we
were very, very hot. And there were moments
where we let you talk. And that’s actually
a skill set that you need as an appellate advocate,
because you don’t know what panel you’re going to get. And so to be able to be agile. Each of you were very
strong in that regard. I thought you had a wonderful
rebuttal, by the way. I thought it was just– you took the podium, you
had very strong points you wanted to make, and it
was a powerful rebuttal time. I like the turns of phrases
that you integrated. The constitutional
rights aren’t contagious. NANCY L. MORITZ: Not contagious. Yes. [LAUGHTER] That got me in the brief, too. I like that. JAMES C. HO: Humor is actually
kind of tricky in an argument, but you did in a way
that was appropriate. You weren’t trying for a laugh. You were just making
a point that happened to generate some attention. But you handled it in a
way that really expressed your point vividly and quickly. The tanks– I think it was
the tanks could [INAUDIBLE] or something like that, was
also another good example. The both of you I
thought did a great job integrating discussions
from the other side. One the most important
things about oral argument is actually not
arguing, but listening. Listening to the
other side, taking advantage of opportunities. The both of you very nicely
borrowed from [INAUDIBLE] time to try to score points. And there was a last
thing I wanted to mention. I think that’s it. Great job. LUIS FELIPE RESTREPO:
I just also want to commend you on your briefs. The briefs were
really outstanding. And in our circuit, most cases
are decided on the briefs. We don’t argue as many cases
as some of us think we should. So the briefs are really
important in appellate work. And the briefs in this case
were really first rate. NANCY L. MORITZ: Well done. JAMES C. HO: I’ll just
echo the same comments. Very, very much looking
forward to watching you all appear before the objectively
reasonable Fifth Circuit. [LAUGHTER] You did great. Congratulations. NANCY L. MORITZ: Thank you all. [APPLAUSE]

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