Ramon Garcia Maria Morfin Garcia v. United States of America, U.S. Dept. Of Justice & I & Ns

The memorandum disposition filed July 28, 1987, is redesignated as an authored opinion by Judge Beezer. See the attached opinion.

OPINION

The United States appeals from judgment assessing liability under the Federal Tort Claims Act (FTCA) for damages to Ramon and Maria Garcia. Ramon Garcia, a citizen of Mexico, was shot when he threatened Walter Hummel, a border patrol agent of the Immigration and Naturalization Service, with a stick and rock in an effort to compel Hummel to release a prisoner Hummel arrested on United States soil. Because Hummel did not forfeit his right to self defense, we reverse the judgment.

I

Background

On the evening of December 14, 1982, a group of Mexican citizens, including plaintiff Ramon Garcia, gathered on the west side of the Colorado River near Morelos Dam for the purpose of crossing without inspection into the United States. They were waiting for dark in order to cross the river undetected. The Colorado River flows north to south at Morelos Dam, with Mexico to the west side of the river and the United States to the east.

Two fishermen parked their truck at the dam and walked approximately 100 yards away for the purpose of fishing. Agent…