United States District Court, W.D. Washington, Seattle
FINDINGS OF FACT AND CONCLUSIONS OF LAW
L. ROBART United States District Judge.
court conducted a bench trial on Plaintiff Mark
Czarnecki's assault and battery claim on October 20, 21,
and 28, 2016. (See Min. Entries (Dkt. ## 62-63,
65.) Dr. Czarnecki was represented at trial by Timothy K.
Ford and Tiffany Mae Cartwright of MacDonald Hoague &
Bayless. The Government was represented by Kristin Berger
Johnson of the United States Attorney's Office in
Seattle, Washington. The court considered the testimony of
witnesses that the parties presented at trial, deposition
testimony of witnesses that the parties submitted to the
court, the exhibits that the court admitted into evidence,
and the arguments of counsel. In addition, the parties
submitted trial briefs (US Tr. Br. (Dkt. # 57); Plf. Tr. Br.
(Dkt. # 58)) and proposed findings of fact and conclusions of
law (US Prop. F&C (Dkt. # 55); Plf. Prop. F&C (Dkt. #
56); Plf. Am. Prop. F&C (Dkt. # 66)). The court has
weighed the testimony, exhibits, and other evidence using the
required “preponderance of the evidence”
standard. Being fully advised, the court makes the
following findings of fact and conclusions of
FINDINGS OF FACT
Czarnecki is a resident of the state of Oregon, who resides
in The Dalles. He is a retired family practice and sports
medicine physician. At the time of the April 1, 2012,
incident at issue, he was 60 years old and married to
Virginia Czarnecki. He is presently married to Kathleen
Government is the only named defendant in this action, which
Dr. Czarnecki brought under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671.
The Government is a party under the FTCA due to the
involvement of several United States Custom and Border
Control (“CBP”) officers, who were acting in
their official capacities at the time of the incident.
court makes the following findings regarding credibility and
the weight it gives to the testimony of certain witnesses:
court's decision following trial turns largely on the
credibility of the various witnesses because the parties and
witnesses presented different or contradictory versions of
the April 1, 2012, incident at issue.
court finds the Government's version of the April 1,
2012, incident at issue, which is based on the testimony of
several CBP officers, to be largely credible and Dr.
Czarnecki's version of the April 1, 2012, incident to be
largely not credible.
Among the factors that persuade the court that the testimony
of the Government's CBP Officers is more credible that
Dr. Czarnecki's testimony are the following:
a. Each CBP officer's description of the incident is
largely internally consistent regarding the details of the
April 1, 2012, incident. Further, the testimonies of the
various CBP officers concerning the incident are largely
consistent with each other. Yet, the testimonies of the CBP
officers are not so well-matched as to suggest that the CBP
officers are testifying from a unified script.
b. Dr. Czarnecki's testimony, on the other hand, is rife
with inconsistencies. For example, he testified during his
direct examination at trial that he had never been a party to
a lawsuit or any kind of legal action. Yet, he admitted on
cross examination that he had been involved in at least two
prior legal actions. First, he was charged with assault,
fourth degree, domestic violence in an incident involving his
first wife, Virginia Czarnecki. As a result of the charge, he
entered into a plea agreement involving a pretrial diversion
program in which he agreed to attend domestic violence
classes. Second, he admitted on cross examination that he had
finalized his divorce from Virginia Czarnecki during the
c. Dr. Czarnecki also testified during his direct examination
at trial that prior to April 1, 2012, incident his health was
“essentially perfect.” However, on cross
examination, he admitted that his medical history included
issues with hypertension, anxiety, chronic back pain, prior
fractures, nephrolithiasis, and persistent knee and back
problems. In addition to these medical issues, he testified
that his former wife, Virginia Czarnecki, had previously
split his head open and cracked his skull with a pewter
turkey platter and that he could still feel the crack in his
skull at the time of trial.
d. The most critical example of Dr. Czarnecki's
inconsistencies, however, is the varying descriptions of his
own actions during the incident in question, which the court
discusses later in this order. See infra §
II.E, ¶¶ 48-52.
e. Finally, Dr. Czarnecki's testimony at times bordered
on or fell into exaggeration or hyperbole. For example, he
testified at trial that at one point during his April 1,
2012, altercation with CBP officers, he wondered whether the
CBP officers were trying to abduct or kill him.
f. Thus, to the extent that Dr. Czarnecki's testimony
conflicts with the testimony of other witnesses concerning
the events of April 1, 2012, the court generally credits the
testimony of the other witnesses rather than Dr.
operates the port of entry at the Seattle-Tacoma
International Airport (“SeaTac”).
officers run various security, criminal, and background
checks on all passengers arriving at SeaTac. If a CBP officer
discovers relevant information concerning a passenger during
a background check, CBP officers may subject the passenger to
additional screening or inspection.
The Events of April 1, 2012
April 1, 2012, Dr. Czarnecki was returning home from a
vacation in Mexico with his then-wife, Virginia Czarnecki,
his daughter, Morgan Czarnecki, and one of Morgan
a CBP officer ran a check on Dr. Czarnecki's passport,
the officer discovered a record of a protection order from
Wasco County, Oregon. The record appeared to show that Dr.
Czarnecki was the subject of the protection order and that
his wife and daughter were the persons protected under the
Because Dr. Czarnecki was traveling with the persons who
appeared to be protected under the order, a CBP officer
referred the family for additional screening. The court has
already concluded on summary judgment that, under the
totality of the circumstances, the CBP officers'
detention of Dr. Czarnecki at the border to permit further
investigation of the protection order was reasonable and did
not rise to the level of an arrest. (See SJ Order at
Supervising Officer Joseph Stead assigned CBP Officer James
Fukuda to complete the family's inspection. CBP
Supervising Officer Stead also assigned CBP Officer Michael
Andrews to assist CBP Officer Fukuda. CBP Supervising Officer
Stead authorized CBP Officers Fukuda and Andrews to conduct a
pat-down of Dr. Czarnecki and to handcuff and detain him
until local law enforcement arrived to investigate the
After the family collected their luggage, CBP Officers Fukuda
and Andrews approached the family and escorted them to an
area designated for secondary screening and inspection. The
CBP officers separated Dr. Czarnecki from his family and
escorted him into one of the private rooms located
immediately behind the inspection station.
Officer Andrews conducted a pat-down search on Dr. Czarnecki,
including a shoe check. CBP Officer Fukuda remained in the
room and observed the pat-down search. Dr. Czarnecki complied
with CBP Officer Andrews's instructions during the
Next, CBP Officer Andrews asked Dr. Czarnecki to face the
wall and put his hands behind his back. CBP Officer Andrews
asked Dr. Czarnecki to do this in preparation for placing
handcuffs on Dr. Czarnecki. Dr. Czarnecki initially complied
with CBP Officer Andrews's request and faced the wall.
Officer Andrews then took out his handcuffs and began to say,
“For your and our safety . . . .” During CBP
Officer Andrews's statement, Dr. Czarnecki suddenly
pulled his hands in front of himself and turned around to
face the two CBP officers. As Dr. Czarnecki did this, he
asked, “What are you doing?” Dr. Czarnecki turned
around to face the CBP officers in an aggressive manner.
to Dr. Czarnecki's about face, CBP Officer Andrews was
unable to complete his sentence in which he was going to tell
Dr. Czarnecki that for his safety and the safety of the
officers, he was about to place handcuffs on Dr. Czarnecki.
To the extent the CBP officers' testimony on the initial
events of Dr. Czarencki's handcuffing conflicts with the
testimony of Dr. Czarnecki, the court discounts Dr.
Czarnecki's testimony and credits the testimony of the
CBP officers for the reasons stated above. See supra
§ II.B, ¶¶ 4-5.
order to control the situation, CBP Officers Fukuda and
Andrews attempted to turn Dr. Czarnecki back against the
wall. CBP Officer Fukuda issued the command: “Don't
move.” Dr. Czarnecki did not comply with CBP Officer
Fukuda's command. Dr. Czarnecki also resisted the CBP
Officers' attempts to reposition him to face the wall and
continued to try to force his way around to face the CBP
During the course of the struggle to reposition Dr. Czarnecki
back toward the wall, both CBP Officer Andrews and Dr.
Czarnecki ended up on the floor.
Officer Fukuda pushed the alarm button in the room.
Officer Fukuda instructed Dr. Czarnecki to stop resisting,
but Dr. Czarnecki did not comply. At some point during the
struggle, CBP Officer Fukuda was grabbed one of Dr.
Czarnecki's arms and placed the arm behind Dr.
Czarnecki's back. At that point, CBP Officer Andrews
successfully placed a handcuff on Dr. Czarnecki's wrist.
However, Dr. Czarnecki's other arm remained under his
Czarnecki continued to resist the CBP Officers by holding his
arms underneath his body, positioning himself on his stomach,
and kicking his legs. CBP Officer Fukuda repeatedly ordered
Dr. Czarnecki to give his hand to the officers. Dr. Czarnecki
failed to comply and continued to resist.
some point during the struggle, CBP Officer Fukuda used his
knuckle to apply a pressure point compliance technique to an
area in front of Dr. Czarnecki's right ear. CBP Officer
Fukuda's use of the pressure point technique, however,
proved ineffective. CBP Officer Fukuda applied the pressure
point technique for less than five seconds.
Five CBP officers responded to the alarm triggered by CBP
Officer Fukuda, including: CBP Supervising Officer Stead, and
CBP Officers Amra Thomas, ...