Salinas v. United States

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…

dissenting.

While I agree with the majority as to the test for negligence under Arizona law- — whether there was a foreseeable and unreasonable risk of harm from defendant’s conduct — I cannot agree with its application in this case. In effect, the majority has drawn all of the inferences in favor of the moving party in the summary judgment context. Thus, I respectfully dissent.

The Border Patrol agent was tracking suspected, undocumented aliens at 3:00 a.m. on a moonless night. This very activity would give rise to a reasonable inference that persons were in the vicinity. Although it may be logical that the aliens would ordinarily head for a pre-arranged pick-up point, once it became evident that they were being tracked, it would not be unusual, and very likely, that some of them may have attempted to hide in the bushes of the vacant lot. The government adduced expert testimony that the agent likely used the “point shoot” method to fire above the intended target of the crouching dog. In so aiming his handgun, the agent had no idea who or what lay beyond the dog in the dark of night. Given that aliens were known to be in the area, it was foreseeable that persons would be in the…