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Francisco Cortez v. United States of America

September 5, 2012

FRANCISCO CORTEZ,
PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Bencivengo, Judge:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The matter before the Court is the Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

I. Introduction

Plaintiff Francisco Cortez initiated this action against the United States pursuant to the Federal Tort Claims Act ("FTCA") on July 15, 2010. [Doc. No. 1.] Cortez alleged that Border Patrol Agents David C. Fulton, Patrick J. Kennedy, Beata Kobylecka, and Benjamin W. Metz (collectively "the Agents"), employees of the United States Department of Homeland Security, U.S. Customs and Border Protection, unreasonably detained him and subjected to him to excessive force at the Pine Valley Border Patrol checkpoint. His complaint alleges the three causes of action -- False Imprisonment; Assault and Battery; and Negligence.

On May 5, 2011, the Court denied the United States' Motion to Dismiss, or in the alternative for Summary Judgment. [Doc. No. 20.] The Court found that the Agents' decision to stop and question Cortez at the checkpoint, and to direct him to secondary inspection was within their discretion, however the factual dispute about what occurred at secondary inspection precluded a finding that the discretionary function exception applied to the continued detention and search of the plaintiff, and precluded summary adjudication of the false imprisonment claim. The Court also found factual disputes as to the assault and battery and negligence claims. The Court summarized the issues for trial as 1) whether the Agents had reasonable suspicion to prolong plaintiff's detention; and 2) whether the Agents' assumption of a bladed stance was an unreasonable use of force. [Id. at 14.]

On September 1, 2011, the case was reassigned to the undersigned. [Doc. No. 30.] The matter was set for bench trial. [Doc. No. 40.] Trial took place on July 30 and 31, 2012.

II. Issues Tried

1. Whether the Agents' detention of plaintiff in secondary constituted a nonconsensual, intentional confinement without lawful privilege for an appreciable period of time, however brief.

2. Whether one or more of the Agents used unreasonable force to detain the plaintiff.

3. Whether the conduct of one or more of the Agents was negligent.

III. Findings of Fact

The following facts were undisputed by the parties. At all relevant times plaintiff Francisco Cortez was a special agent with the California Department of Justice, Division of Law Enforcement, Bureau of Narcotics Enforcement. As a narcotics enforcement agent, his primary duties included investigating mid-to-upper level drug traffickers. On September 25, 2009, Cortez traveled from San Diego to El Centro, California to meet with an informant in a drug investigation. Shortly after midnight (September 26), Cortez was returning home to San Diego. He was dressed in plainclothes, driving an unmarked, state-owned white Monte Carlo with tinted windows. Because he was on duty, working as an undercover narcotics agent, he was armed with a sidearm.*fn1 He had an additional weapon in a bag on his front seat and a weapon in the trunk of his vehicle. Cortez was driving in the number one lane of Interstate 8 ("I-8") heading west in the Monte Carlo.

Border Patrol Agent Beata Kobylecka was working the midnight shift at the Campo Border Patrol Station. She was patrolling I-8 in a 2008 Chevrolet Tahoe with Border Patrol markings.

Kobylecka was west-bound on I-8 headed toward the permanent immigration checkpoint at Pine Valley. Cortez passed Kobylecka at an excessive rate of speed.*fn2 Kobylecka followed Cortez and obtained the vehicle's license plate number. Cortez was aware the Border Patrol vehicle was following him. Kobylecka radioed her dispatch for information about the vehicle. Dispatch informed Kobylecka that DMV had no record on file for the vehicle. Kobylecka, concerned the vehicle might be stolen or involved in smuggling or other illegal activity, then radioed ahead to the Pine Valley Checkpoint and requested the agent follow-up with the driver for more information.

As Cortez approached the checkpoint he saw three vehicles ahead of him, two trucks and a small sedan, waived through the checkpoint without inquiry. When he pulled up to the Border Patrol agent, he was stopped. The agent at primary inspection was David Fulton. Agent Fulton recognized the vehicle as the one for which Kobylecka had requested further inquiry.

The parties agree that Fulton asked Cortez his citizenship and where he was born, to which Cortez responded U.S. and New York. Fulton then inquired where Cortez was coming from and what had been "going on" there, to which Cortez replied El Centro and "not much." Fulton then inquired where Cortez was going and what was "going on" there, to which Cortez replied San Diego and "a whole lot, but I'm going home." Fulton then asked if Cortez had a driver's license, to which ...


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