Salinas v. United States

9 F. App'x 662

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2001
• Docket: No. 99-15405; D.C. No. CV-97-00125-JMR
• Status: Published

Opinions

MEMORANDUM

**

Salinas appeals the district court’s grant of summary judgment in favor of the United States in her Federal Tort Claims Act action. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the procedural and factual history of the case, we will not recount it here.

The district court did not err in determining that the agent’s conduct did not present a foreseeable and unreasonable risk of harm. Arizona state law governs the duties owed by the officer in this case under the Federal Tort Claims Act. 28 U.S.C. § 1346(b)(1). Under Arizona law, “[t]he test for whether defendants’ conduct was negligent is whether there was a foreseeable and unreasonable risk of harm from that conduct.” Rudolph v. Ariz. B.A.S.S. Fed., 182 Ariz. 622, 625, 898 P.2d 1000 (Ct.App.1995). The determination of what constitutes reasonable behavior is contextual: “a person confronted with a sudden emergency that deprives him of time to contemplate the best reaction cannot be held to the same standard of care and accuracy of choice as one who has time to deliberate.” Myhaver v. Knutson, 189 Ariz. 286, 942 P.2d 445, 447 (1997).

Here, the hidden existence of the girl in a hidden casita was not reasonably foreseeable to an agent who encountered dogs at 3 a.m. in a large, unlighted vacant lot in the desert. It is undisputed that the casita was well-camouflaged by mesquite branches; that the occupants were silent; and that the agent did not see or hear any people during his confrontation with the dogs who were attacking him. As the district court noted, the agent fired his handgun away from the path of footprints he had been following, at a target low to the ground, with the nearest dwellings over 175 yards away. The plaintiff was sixty feet away and concealed from view. Further, the force used was not, as a matter of law, excessive. It is undisputed that the agent discharged his weapon in an attempt to prevent serious bodily injury to himself.

Thus, the district court’s grant of summary of judgment was entirely proper. We need not reach any other issue urged on appeal.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.