Aguilar
Aguilar v. Drug Enforcement Agency
Opinion
Dissenting Opinion
Tallman, J.
dissenting.
Having concluded that Agent Laverty’s life was in imminent danger sufficient to warrant invocation of deadly force when David Aguilar first assaulted him with a loaded, sawed-off rifle, the district court erred as a matter of law when it parsed the officer’s split-second decision and found that the danger had passed at the moment the fatal shot was fired. As our Court has cautioned in reviewing police deadly force cases, “liability cannot rest upon such an exercise in ’20-20 hindsight.’ ” Garcia v. United States, 826 F.2d 806 , 812 n. 14 (9th Cir.1987). Assuming Dominic’s testimony is accurate, I fail to see how Aguilar’s slight lowering of the gun while Laverty began to back up his car dissipated the state of imminent danger the officer still faced. Laverty was always well within range of the rifle, which Aguilar could easily have raised and fired within an instant. As Justice Holmes so trenchantly observed, “[djetached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U.S. 335, 343 , 41 S.Ct. 501 , 65 L.Ed. 961 (1921). I respectfully dissent.
Lead Opinion
MEMORANDUM *
The United States appeals a district court judgment in favor of Eneida Aguilar, her children, and her parents-in-law, all of whom are the statutory beneficiaries of Eneida’s husband, David Aguilar. The beneficiaries brought suit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., after David was shot and killed by James Laverty, a Special Agent of the Drug Enforcement Administration.
An advisory jury found, and the district court agreed, that the government should be hable for David’s death because Laverty was not acting in self-defense when he shot David. The district court then awarded damages to the estate’s beneficiaries.
The FTCA’s provisions incorporate the law of the state where the alleged tort occurred. Because the alleged tort occurred in Arizona, its law determines whether Aguilar’s estate can recover on account of David’s death. See Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir.1984). The determination of whether someone acted in self-defense is a factual one, reviewed for clear error. See Garcia v. United States, 826 F.2d 806, 810 (9th Cir.l987)(holding, under Arizona law, that the question of whether a person acted in…