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Czarnecki v. United States

United States District Court, W.D. Washington, Seattle

January 19, 2017

MARK CZARNECKI, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          JAMES L. ROBART United States District Judge.

         I. INTRODUCTION

         The court conducted a bench trial on Plaintiff Mark Czarnecki's assault and battery claim on October 20, 21, and 28, 2016.[1] (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.[2] Being fully advised, the court makes the following findings of fact and conclusions of law.[3]

         II. FINDINGS OF FACT

         A. The Parties

         1. Dr. 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 Czarnecki.

         2. The 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.

         B. Credibility Determinations

         The court makes the following findings regarding credibility and the weight it gives to the testimony of certain witnesses:

         3. The 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.

         4. The 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.

         5. 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 preceding year.
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. Czarnecki's testimony.

         C. CBP

         6. CBP operates the port of entry at the Seattle-Tacoma International Airport (“SeaTac”).

         7. CBP 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.

         D. The Events of April 1, 2012

         8. On 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 Czarnecki's friends.

         9. When 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 order.

         10. 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 15-33.)

         11. CBP 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 protection order.

         12. 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.

         13. CBP 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 pat-down search.

         14. 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.

         15. CBP 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.

         16. Due 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.

         17. In 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 Officers.

         18. 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.

         19. CBP Officer Fukuda pushed the alarm button in the room.

         20. CBP 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 body.

         21. Dr. 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.

         22. At 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.

         23. Five CBP officers responded to the alarm triggered by CBP Officer Fukuda, including: CBP Supervising Officer Stead, and CBP Officers Amra Thomas, ...


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