                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 11 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GUADALUPE GUERRERO, individually                 No.   16-16877
as the surviving mother of deceased
Carlos Lamadrid,                                 D.C. No. 4:12-cv-00370-JAS

              Plaintiff-Appellant,
                                                 MEMORANDUM*
 v.

UNITED STATES OF AMERICA,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                     James Alan Soto, District Judge, Presiding

                          Submitted December 7, 2017**
                            San Francisco, California

Before: M. SMITH and IKUTA, Circuit Judges, and MCAULIFFE,*** District
Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Steven J. McAuliffe, United States District Judge for
the District of New Hampshire, sitting by designation.
      Guadalupe Guerrero appeals the district court’s order entering judgment in

favor of the United States on her wrongful death suit pursuant to the Federal Tort

Claims Act, 28 U.S.C. § 1346(b)(1). We have jurisdiction under 28 U.S.C. § 1291.

      The district court did not err in holding that a justification defense is

available to Tidwell under Arizona law, Ariz. Rev. Stat. § 13-405(A), because the

statute does not make an exception for a person who accidentally injures a third

party while justifiably using force. Although the justification defense is

unavailable in the criminal context if a person recklessly injures or kills an

innocent third party, id. § 13-401, this exception to the justification defense is not

applicable in the civil context. Even if it were applicable here, the exception would

not help Guerrero because the district court did not clearly err in finding that

LaMadrid was not an “innocent third person,” and that Tidwell’s actions were not

“reckless.”

      The district court’s conclusion that Tidwell was justified in using deadly

physical force in this case is amply supported by the record. The district court did

not clearly err in crediting the testimony of Officer Marcus Gonzalez over the

testimony of bystanders, see United States v. Nelson, 137 F.3d 1094, 1110 (9th Cir.

1998), and therefore did not clearly err in finding that an individual was hurling

rocks the size of “softballs” and one the size of a “brick” at approximately 50 to 60


                                           2
miles per hour directly at Agent Tidwell, one of which narrowly missed his head.

Even Guerrero’s own expert concluded that the situation Tidwell faced was life-

threatening. Accordingly, the district court did not err in concluding that a

reasonable person in Tidwell’s position would believe that “deadly physical force

[was] immediately necessary to protect himself” against a third party’s use of

“unlawful deadly physical force.” See Ariz. Rev. Stat. § 13-405(A).

      We also reject Guerrero’s claim that Tidwell may not use a justification

defense because he negligently put himself in a situation where he had to use

deadly force. Guerrero does not assert that Tidwell provoked the rock-thrower’s

use of force, see id. § 13-404(B), and does not point to any other statute or case

under Arizona law making the justification defense unavailable to a person who

has negligently stepped into harm’s way.

      Finally, Guerrero presented no plausible evidence that various federal, state,

and local agencies conspired to conceal evidence, and therefore the district court

did not err in rejecting Guerrero’s spoliation claim. See Akiona v. United States,

938 F.2d 158, 161 (9th Cir. 1991).

      AFFIRMED.




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