Guadalupe GUERRERO, individually as the surviving mother of deceased Carlos Lamadrid, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, 705 F. App'x 663

MEMORANDUM 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 Tid-well 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 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 forcé [was] immediately necessary to protect himself’ against a third party’s use of “unlawful deadly physical force.” See Ariz. Rev. Stat. § IS-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.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.