Miguel v. United States

          ORDER

          DAVID C. BURY, UNITED STATES DISTRICT JUDGE

         FINDINGS OF FACT

         To the extent these Findings of Fact are also deemed to be Conclusions of Law, they are hereby incorporated into the Conclusions of Law that follow.

         1. The plaintiffs appear in court having filed a Federal Tort Claim Act (FTCA) suit seeking damages for a battery committed by Border Patrol Agent Joseph Spann, pursuant to 28 U.S.C §1346(b)(1).

         2. On March 31, 2014, at about 12:15 a.m., Agent Spann was on foot outside of his marked Border Patrol pickup truck, standing between the open driver's side door and the driver's seat, in a dirt area at the intersection of Federal Route 19 and San Miguel East. He was facing west towards Federal Route 19 and holding a GPS device.

         3. There was no moon light. There were neither street lights nor any lights that illuminated the scene except for vehicle lights.

         4. Agent Spann had parked his vehicle perpendicular to Federal Route 19 with its headlights directed across the highway toward the community center building in the small, spread out, village of San Miguel and approximately 40 to 50 feet from each roadway, with a small mesquite tree within approximately 12 feet from the driver's side door.

         5. Shawn Miguel, Amon Chavez and Raymus Listo, the occupants of Miguel's double cab pickup truck, Dodge Ram, were intoxicated from malt liquor and had gone for a ride.

         6. Miguel drove to the community center and either pulled into the parking area in front of the community center building which was closed and U-turned back onto Federal Route 19 or was just proceeding south on Federal Route 19, but either way he turned left from Federal Route 19 towards Agent Spann's parked vehicle, with the headlights of Spann's parked vehicle shining directly at him.

         7. Agent Spann saw Miguel's truck coming southbound on Federal Route 19 had slowed down or come to a stop almost directly in front of where he was facing.

         8. Agent Spann heard the engine of the Dodge Ram bog down, noticed its lights dim, and saw it turn left off Federal Route 19 and come towards him.

         9. Miguel drove to the right of Agent Spann's parked vehicle, first, towards the small mesquite tree and then to avoid hitting the tree he veered towards Agent Spann's parked vehicle, and the driver's side front bumper of Miguel's truck clipped the door and rear panel of Spann's vehicle as Miguel stopped his truck.

         10. As Miguel's vehicle approached, Agent Spann jumped into his vehicle's driver seat moments before the Dodge Ram collided with his driver's side door. The collision pressed Agent Spann's driver's side door inward, trapping his leg in the doorway and bruising it just above the ankle causing Agent Spann to believe his leg was broken.

         11. Miguel immediately stopped his truck. At rest, his driver's window was directly across from ...