UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-51000 Summary Calendar

GUILLERMO SALDAÑA, Individually; MARIA SALDAÑA, Individually; LAURA LUNA, Parent and Next Friend of Laurelle Vanity Luna, A Minor,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA; MOISES J. OLIVARES,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas (EP-98-CV-507-EP)

January 22, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

This action arises out of William Saldaña’s being shot and

killed by Border Patrol Agent Olivares. It was filed against Agent

Olivares pursuant to Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics,

(1971), and against the

Government under the Federal Tort Claims Act (FTCA). Asserting

qualified immunity, Agent Olivares moved for summary judgment; the

Government moved for summary judgment on the ground that Agent

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Agent Olivares’ actions were privileged under section 9.51(c) of

the TEXAS PENAL CODE. Both motions were granted.

Concerning Agent Olivares, Appellants fail to identify any

error in the district court’s qualified immunity analysis.

Therefore, they have abandoned the issue. See e.g., Elvis Presley

Enters., Inc. v. Capece,

, 193 n.2 (5th Cir. 1998)

(issues not raised on appeal are abandoned).

Appellants contend the district court erred in permitting the

Government to invoke the privilege under section 9.51(c), which

governs the use of deadly force by a law enforcement officer. See

TEX. PENAL CODE ANN. § 9.51(c) (Vernon 1994). Because Appellants

assert, for the first time on appeal, that the section is a defense

solely to criminal liability, our review is limited to plain error.

E.g., Robertson v. Plano City of Tex.,

(5th Cir.

1995).

Principles of Texas tort law govern this question. Crider v.

United States,

(5th Cir. 1989), cert. denied,

(1990). Under Texas law, the Government was entitled to

claim section 9.51 as a defense to civil liability under the FTCA.

See Fraire v. City of Arlington,

, 1276-77 (5th Cir.)

(police officer not liable for excessive force because section 9.51

requirements met), cert. denied,

(1992); Hinojosa v.

City of Terrell, Tex.,

(5th Cir. 1988) (conduct

not tortious if actor privileged to engage in it), cert. denied,

(1989).

2 Next, Appellants claim the district court abused its

discretion in denying their Rule 56(f) motion for a continuance to

conduct additional discovery. See FED. R. CIV. P. 56(f).

Appellants’ motion did not state with specificity how additional

discovery would create a material fact issue. Thus, the district

court did not abuse its discretion. E.g., Krim v. BancTexas Group,

Inc.,

(5th Cir. 1993).

Finally, Appellants maintain the district court erred in

granting the Government’s judgment motion. We review the summary

judgment de novo. E.g., Tolson v. Avondale Indus., Inc.,

(5th Cir. 1998). Based upon our review of the record, the

district court did not err in granting it to the Government,

because there was no material fact issue concerning Agent Olivares’

conduct satisfying the requisite elements under section 9.51(c) for

the use of deadly force. See FED. R. CIV. P. 56(c).

AFFIRMED

3