Conrad v Kolonia Town [1997] FMSC 34; 8 FSM Intrm. 183 (Pon. 1997) (26 June 1997)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as Conrad v Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183 (Pon. 1997)

CONRAD CONRAD,
Plaintiff,

vs.

KOLONIA TOWN, JOHNSON YAMADA,RETLEY ARACELY, AUGUSTINE LUZAMA and ALBENSTER WILLIE,
Defendants.

CIVIL ACTION NO. 1994-155

ORDER AND MEMORANDUM OF DECISION

Andon L. Amaraich
Chief Justice

Trial: September 16-17, December 17-18, 1996
Decided: June 26, 1997

APPEARANCES:

For the Plaintiff:
Charles Greenfield, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

For the Defendants:
Daniel J. Berman, Esq.
P.O. Box 1491
Kolonia, Pohnpei FM 96941

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HEADNOTES

Torts - Assault; Torts - Battery
Battery is the harmful or offensive contact with a person, resulting from an act intended to cause that contact, while an assault refers to the apprehension of that offensive contact. Once the court is satisfied from the evidence that an actual injury has occurred then it need not consider the separate tort of assault. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 191 (Pon. 1997).

Torts - Use of Excessive Force
The tort of use of excessive force results from the arrest by a person having the authority to do so but accomplished by the use of unreasonable force. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 191 (Pon. 1997).

Torts - Battery
Civil liability for a battery is not limited to the direct perpetrator of the act charged. It extends to any person who by any means encourages or incites the battery, or aids and abets it. Each officer who encouraged any other officer to become involved in the fight with plaintiff, either by direct command, by statements or by providing the means for another officer to become involved, is as liable for the battery on plaintiff as the person who actually delivered the kick to his leg. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 192 (Pon. 1997).

Torts - Governmental Liability; Torts - Respondeat Superior
Although a town government is not automatically liable for all the torts of its agents and employees, it is liable for those torts committed in the course and scope of employment under the doctrine of respondeat superior. When force is employed by police officers in use of even apparent official authority, the government employer should be held responsible for whatever results. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 192 (Pon. 1997).

Constitutional Law - Freedom of Expression
It is not a violation of a person's free speech rights to be arrested when he was attempting to interfere with the arrest of his cousin, when he was drunk at the time, and when he was disturbing the peace. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 193 (Pon. 1997).

Civil Rights
Liability for failure to inform a person of the charge for which he is being arrested will not be imposed when he knew was dealing with police who could arrest him, that he was likely to be arrested and why. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 193 (Pon. 1997).

Equity - Laches, Estoppel and Waiver; Torts
The defenses of estoppel, unclean hands and laches are all equitable defenses which do not apply in actions sounding in personal injury. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 193 (Pon. 1997).

Torts - Battery
The tort of battery is an intentional tort; therefore none of the defenses to negligence such as assumption of risk, comparative negligence, contributory negligence and last clear chance apply to intentional actions on the part of the defendants. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 193 (Pon. 1997).

Torts - Battery
Privilege is a legal defense to the tort of battery and may be based upon the consent of the person who is the one affected by the touching, or the fact that the touching is a necessity to protect some private or public interest which is of such importance as to justify the threatened harm or, that the touching is one which the actor must cause in the exercise of some action for which freedom of action is essential. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 193 (Pon. 1997).

Torts - Governmental Liability
The Pohnpei Governmental Liability Act, Pon. S.L. No. 2L-192-91, provides for no immunity for torts committed by governmental employees acting within the scope of their employment. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 194 (Pon. 1997).

Sovereign Immunity
Courts lack the authority to establish sovereign immunity to general tort claims through judicial action. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 194 (Pon. 1997).

Torts - Governmental Liability
Although a municipality would be liable for the injuries proximately caused by employment of poorly trained police officers, and for failure to adequately train them, there is no liability where the plaintiff has failed to prove by any competent evidence that the level of police training provided by the municipality was deficient, or that that level of training violated the proper standard of care in the community, or even what level of training would be appropriate giving due consideration to the social and geographical configuration of the Federated States of Micronesia. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 194 (Pon. 1997).

Torts - Causation; Torts - Negligence
The employment of a police officer with ten-year old charges and or convictions for violent behavior is insufficient to hold a municipality liable for negligent hiring because the charges and or convictions were too remote and attenuated to be the proximate cause of the plaintiff's injury. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 194 (Pon. 1997).

Torts - Causation
Proximate cause is the primary or moving cause, or that which, in a natural and continuous sequence; unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 194 (Pon. 1997).

Civil Rights; Torts - Governmental Liability
Persons liable for civil rights violations include government entities. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 195 (Pon. 1997).

Constitutional Law - Due Process; Torts - Battery
The commission of the intentional tort of battery by the police officers in the scope of their employment is a denial of due process of law. Physical abuse committed by police officers may violate a prisoner's right to due process of law. The right to due process of law is violated when a police officer batters a person. The public at large has the right to be free of invasions of their person and personal security by any government agent and suspects have the right to be free from the use of excessive force during their arrest. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 195 (Pon. 1997).

Torts - Battery; Torts - Governmental Liability
A municipality is liable for battery by its police officers when it has ratified their actions by failing to charge them and the lack of any internal discipline whatsoever. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 195 (Pon. 1997).

Torts - Damages
A specific claim for lost wages that accrued as a result of an injury at the hands of the defendants may be recovered as part of compensatory damages. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 195 (Pon. 1997).

Torts - Damages
Punitive damages are typically given as an enhancement of compensatory damages because of the wanton, reckless, malicious or oppressive character of defendant's conduct, but will not be given when compensatory damages will deter similar future actions and the excessive force used on a person resisting arrest was not of such a character. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 196 (Pon. 1997).

Torts - Damages
Compensatory damages may be awarded a party who is deprived of civil rights. This award of damages includes reasonable attorney fees and costs of suit. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 196 (Pon. 1997).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

INTRODUCTION

This is a case involving claims for personal injury and violation of civil rights by the plaintiff Conrad Conrad based upon an incident which occurred in Kolonia, Pohnpei on the evening / early morning hours of December 31, 1992/January 1, 1993. Plaintiff contends that his right leg was broken by the individual defendants when they assaulted him and by their use of excessive force applied to effect his arrest. Plaintiff also contends that all of the defendants continued to use excessive force and unnecessary roughness upon him even after they knew that his leg had been broken, that the assault and excessive force was used in retaliation for his exercise of his constitutional right of free speech, and in violation of 12 F.S.M.C. 214(1) when defendants failed to advise plaintiff of the cause and authority for his arrest, and that his civil rights which are protected under 11 F.S.M.C. 701 et seq. were violated by defendants' actions. Plaintiff also contends that defendant Kolonia Town Government (Kolonia) has established a pattern of the use of excessive force by its officers and that defendant was on notice of this pattern of behavior by its employees and that it did nothing to take reasonable steps to correct this pattern of behavior, that Kolonia "negligently, recklessly or intentionally hired persons as police officers who had extensive records of violence or alcohol abuse," that Kolonia "negligently, recklessly or intentionally failed to provide adequate training" to its police officers, and that Kolonia "negligently, recklessly or intentionally supervised or controlled its police officers."

Trial of this case was held on September 12-17 and December 17 and 18, 1996. Plaintiff testified on his own behalf and also presented evidence through the testimony of Rulihter Route, Ioanis Sahm, the Mayor of defendant Kolonia Town, Rodston Route, Welson Joses, Dominick Conrad, Benter Shoniber, Chief of Police for defendant Kolonia Town, Helger (Wawa) Peters, Retley Olter, the custodian of records for the Pohnpei State Police, and defendants Retley Aracely, Albenster Willie, and Augustine Luzama. By agreement of the parties, defendants used their cross examination as an opportunity to present evidence beyond the scope of direct examination from defendants. Defendants also questioned Ioanis Sahm and Benter Shoniber eliciting evidence applicable to defendants' case in chief and in their own case defendants called their co-defendant Johnson Yamada. After the conclusion of the evidence the parties fully argued the case. The Court makes these Findings of Fact and Conclusions of Law, pursuant to Civil Rule 52(a).

FINDINGS OF FACT

I. The Events of December 31, 1992 - January 1, 1993

By all accounts, the injury to plaintiff came about after an afternoon and evening of drinking and New Year's eve partying involving plaintiff, his brother and their friends. According to his own testimony, plaintiff, the then Sergeant at Arms for the Pohnpei State Legislature, began the day of December 31, 1992 by taking a friend, Nixon Daniel, with him to deliver the state senators' paychecks. Somewhere along the way plaintiff and Mr. Daniel bought and consumed a six pack of beer. After completing his tasks for the State of Pohnpei that day, plaintiff went with his wife to a club called the Panasang Heights where he consumed at least three or four more beers. After leaving his wife, plaintiff went to the house of Mr. Daniel and then on to his parents' house where he ate but drank no alcohol. From the home of his parents plaintiff went to a "youth party" arriving before midnight. While at this party, plaintiff consumed more beer and was in his own words, "drunk." From the youth party plaintiff went to the home of Pedronio Walter where another party was in progress. While at that party, plaintiff's brother was involved in an altercation with another man. The police were called, and the combatants along with plaintiff were asked to leave. After leaving the Walter home plaintiff went "cruising" until he stopped at the A.Y.S. store. There he met Helger "Wawa" Peters and a person by the name of Welson Doses who told plaintiff that his cousin Rulihter Route had been arrested and was in police custody at a place called Komwunlaid. Plaintiff proceeded to Komwunlaid where he observed his brother Dominick Conrad engaged in a conversation with two Kolonia Town police officers who were holding Rulihter Route in their police car. Plaintiff's brother Dominick was bent over the driver's side window of the police vehicle talking to the policemen inside. Plaintiff approached the police vehicle and attempted to open one of the rear doors but was unsuccessful. At that point in time, the police vehicle driven by defendant Johnson Yamada and another police officer drove away from the immediate area with Dominick Conrad hanging on to the driver's side window. After traveling about 30 feet, plaintiff's brother fell off the car and returned to where plaintiff was. According to plaintiff, at that time he told his brother that they should leave the area because the police might come back. Plaintiff testified that the police did return and that there followed an altercation between Dominick Conrad and defendant Retley Aracely, which, according to plaintiff and Dominick Conrad, was initiated by Aracely slapping Dominick, and in which Dominick Conrad managed to throw Aracely to the ground and get on top of him. Officer Willie came to Aracely's aid and Dominick Conrad was arrested. During the fight between Dominick Conrad and defendant Aracely, plaintiff heard defendant Yamada say to other officers present "Arrest that guy," which plaintiff took to mean himself. Thereafter, plaintiff felt a person, whom he believed to be defendant Augustine Luzama, grab him by his neck and try to wrestle him to the ground. Plaintiff at that time asked why he was being arrested but received no response. Plaintiff struggled with the officers who were trying to arrest him for several minutes during which he again asked several times why he was being arrested but the only response he received were the statements "Shit you!" and "Don't waste your time!" from some of the officers struggling with him. Plaintiff testified that he began to tire from his struggle to prevent his arrest and that he felt several kicks to his right leg. At the time of the kicks plaintiff heard a loud crack, felt a great deal of pain in his right leg, and collapsed to the ground saying, "You have broken my leg!" Plaintiff was, at this point, placed in handcuffs. He was thereafter put in the back of a police pickup truck and taken to the Kolonia Town Police station where he remained for a period of time, variously described as being from five up to 30 minutes, prior to being transported to the Pohnpei State Hospital for treatment of his leg injury. That injury was diagnosed at the Pohnpei State Hospital as a broken right femur. He remained in Pohnpei State Hospital from January 1, 1993 to January 8, 1993 when he transferred to Tripler Army Medical Center in Honolulu, Hawaii for surgical reduction of the fracture to his leg by implantation of a metal rod. Plaintiff remained at Tripler Army Medical Center until January 21, 1993 when he was discharged. He returned to Tripler Army Medical Center on October 17, 1994 for surgical removal of the previously implanted metal rod. Plaintiff's injury and the subsequent treatment were fully described in the medical records admitted at trial by the stipulation of the parties.

Plaintiff's version of the events after his arrival at Komwunlaid was partially corroborated by his cousin Rodston Route who also saw an unidentified police officer kicking plaintiff on the right leg and then heard the sound of his leg breaking and in other parts of his testimony by Helger Peters and Dominick Conrad.

Defendants presented a different version of the events of December 31, 1992/January 1, 1993.

Defendant Albenster Willie testified during plaintiff's case in chief. He testified that he was a newly hired Kolonia Town police officer in December of 1992 and had received no formal police training either before his hiring or immediately thereafter. The substance of his version of the events of December 31, 1992/January 1, 1993 was that although he was present at the scene in Komwunlaid his involvement was limited to having taken Dominick Conrad into custody after his fight with Aracely, assisted in placing plaintiff in the back of the police pickup for transport to the police department and that he drove the police pickup which took plaintiff to the hospital. According to his best estimate plaintiff was at the police station for approximately 10 minutes prior to being taken to the hospital.

Defendant Retley Aracely, who was a Captain on the Kolonia Town Police force on the night in question, testified that he was at the scene of the arrest in Komwunlaid. His version of the altercation between himself and Dominick Conrad varied significantly from that given by Dominick Conrad. According to Aracely, Dominick Conrad initiated the fight by jumping him, knocking him to the ground and then getting on top of him and staying there until pulled off by other officers. Aracely stated that he could not have slapped Dominick Conrad that evening because he was holding a radio in his left hand and that his other hand was bandaged from a cut received several days before. Aracely further testified that he saw plaintiff try to free Dominick Conrad from Officer Willie's custody by grabbing Dominick and trying to pull him away. He stated that plaintiff then shoved defendant Luzama with open hands after Johnson Yamada told the officers to "Arrest that guy." At that point, according to his testimony, he grabbed plaintiff's arm in an attempt to restrain him. There ensued a struggle between plaintiff and four officers during which plaintiff struggled with the officers trying to subdue him. Finally, according to Aracely, plaintiff tired, his legs began to spread apart due to the weight of the officers, and plaintiff fell to the ground with possibly one or more officers falling on his right leg. At no time, Aracely testified, was plaintiff kicked by any of the officers. After plaintiff was arrested he was placed in the police pickup and transported to the police station. Aracely proceeded to the police station in a separate automobile. According to Aracely's further testimony, only after other officers had taken plaintiff to the hospital and returned to the station did he learn that plaintiff's leg had been broken.

Defendant Aracely testified as to the training which he received as a Kolonia Town Police Officer. He stated that the only training he received was on the job training when he started with the police department, and later a three day FBI course presented by Pohnpei State.

Finally, Aracely testified that he had several convictions for assaultive behavior and disturbing the peace prior to his hiring by defendant Kolonia Town. All of the convictions testified to occurred between 1977 and 1980.

Defendant Johnson Yamada testified during defendants' case in chief. He testified that he is currently a Deputy Chief/Captain of the Kolonia Town Police Department, that as a part of his training for his employment as a police officer he has received on the job training, the three day FBI course given by Pohnpei State and 3 other training programs during his tenure with Kolonia Town. He testified that all new officers employed by Kolonia Town are given on the job training as a part of their job orientation and that officers Willie and Luzama did receive that training. Yamada testified that all of the officers employed by Kolonia Town are trained in the use of force in effecting arrests and that officers Willie and Luzama had received that training. He testified that none of the officers involved in the incident at Komwunlaid violated any Kolonia Town police policy on the use of force.

Defendant Yamada testified about his involvement in the events of December 31, 1992 - January 1, 1993. He stated that on the evening in question he was initially called to a disturbance at Pedronio Walter's home. The call which brought the officers to that residence stated that plaintiff was at a party at that residence. Defendant proceeded to that home but found that William Panuelo, the then Chief of Police for Pohnpei State, had arrived there before him, had taken care of the situation and that plaintiff had left that location. Yamada testified that prior to leaving the Walters' residence plaintiff returned and said "Fuck you!" to the police officers present. The police made no response to plaintiff when he said this to them.

Defendant Yamada testified that he was next called to a disturbance at the fishermen's store in Komwunlaid. When he arrived, he found Rulihter Route and another young woman involved in a fight which was being watched by a crowd of approximately ten persons some of whom were drunk. Defendant called for other police units to report to the scene. When the other police units arrived he arrested Rulihter Route and the other combatant and put them into separate police cars. While he was sitting in his police car with Rulihter Route he was approached by plaintiff and Dominick Conrad. Dominick Conrad came to the driver's side of the auto and told Yamada to release his and defendant's cousin (Rulihter Route) from custody. Defendant Yamada told Dominick Conrad that he could not do that, at which point Dominick Conrad punched him in the chest. Yamada testified that plaintiff attempted to open the back door of the police vehicle to remove Rulihter Route but that the door was locked. After the punch in the chest and the attempt to remove Route from the car defendant Yamada drove the police car away from the immediate area where plaintiff and his brother were. As he was moving the car he heard a loud slapping sound on the car from the place where plaintiff was standing. After moving the car away from plaintiff and his brother, Yamada exited the vehicle and saw defendant Aracely involved in the fight with Dominick Conrad. He saw officer Willie arrest Dominick Conrad and plaintiff's attempt to remove Dominick from Willie's custody. At that point Yamada said to Officer Augustine Luzama, "Arrest that guy.", meaning for Luzama to arrest Conrad Conrad. Yamada testified that he saw Luzama try to arrest plaintiff and that plaintiff shoved Luzama away. After Luzama's unsuccessful single-handed attempt to control plaintiff, Yamada, Captain Aracely, and officer Luzama again tried to arrest plaintiff but Yamada had to cease his efforts because of pains in his chest. When Yamada had to cease his efforts to assist in the arrest, Officer Romeo Johnny joined the struggle. Yamada testified that after seeing officer Romeo Johnny enter the affray he went to his car to rest and that by the time he reached the car, and had turned to look back, plaintiff was already on the ground. Yamada's testimony was that the entire struggle by the officers with plaintiff lasted approximately two minutes. Yamada testified that plaintiff's injury did not result from any intentional actions on the part of the police but rather resulted from plaintiff's resisting arrest. Finally, Yamada testified that, after being taken to the Kolonia Town police station, plaintiff remained there only about five minutes before being taken to the Pohnpei State Hospital for treatment of his leg.

With regards to the claims of "negligent hiring," "negligent training" and "negligent supervision," Benter Shoniber the Chief of Police for Kolonia Town testified. Chief Shoniber has been Chief of Police in Kolonia since 1988. Chief Shoniber stated that the way in which Kolonia town hires police officers is that an announcement of the position is made on the radio, and that once there is a pool of qualified applicants then the applications are screened by the Chief, the Mayor and the Director of Administration. The most qualified applicants' backgrounds are then checked through investigation of their life history. This investigation is accomplished by checking with people in Kolonia who know the applicant. A record check in Kolonia town court is also done, however no further check is made with either Pohnpei Supreme Court, the FSM Supreme Court, the FSM National Police or the Pohnpei State Police.

On the issue of training, Chief Shoniber testified that when Pohnpei State has training, Kolonia asks to send officers to that program. Kolonia Town Police were able to take advantage of the Pohnpei state training twice in 1995. From 1988 to 1992 the Guam Police Department conducted training for his department an unspecified number of times. Chief Shoniber testified that when no money is appropriated for training then no training can take place.

Chief Shoniber testified that an internal investigation of the events of December 31, 1992 - January 1, 1993 was carried out by his department. All of the officers involved were interviewed but that no one else who was at the scene that night was interviewed about the incident. No internal discipline was imposed as a result of the investigation.

Ioanis Sahm, the Mayor of defendant Kolonia Town, testified during plaintiff's case in chief. Mayor Sahm testified that he is in the day to day control of the operations of the Kolonia Town government including, through the Director of Administration and the Chief of Police, the Kolonia Town Police Department. He testified regarding the manner of hiring of Kolonia Town police officers and his testimony on this subject coincided with that of Chief of Police Shoniber. Mayor Sahm testified that he was unaware of any formal training requirements for officers hired by the Kolonia Town police Department. He also testified that no formal in house training program for new officers existed in the Kolonia Town Police Department. He testified that some of the new Kolonia Town police officers go to training given by Pohnpei State or programs provided by the U.S. FBI.

Mayor Sahm testified that he authorized an internal investigation of the incident in which plaintiff was injured and that that investigation determined that no violation of proper procedure occurred and no discipline was imposed as a result of that investigation. Finally, Mayor Sahm testified that the budget of the Kolonia Town Police Department is $80,000.00 per year which sum provides for a staff of 14 employees plus all vehicles, equipment and supplies.

Defendant Augustine Luzama was called to testify during plaintiff's case in chief but was not asked, and did not answer, any questions dealing with the events of December 31, 1992 - January 1, 1993 or any other facts relevant to this case.

II. Uncontested Facts

Neither plaintiff nor defendants dispute that Plaintiff was arrested by the Kolonia Town Police on January 1, 1993. Nor is it contested that plaintiff sustained his broken right leg as a result of that arrest. The facts of plaintiff's hospitalization and treatment for the injury he received during the arrest are also not in dispute.

CONCLUSIONS OF LAW

I. Tort Claims

Plaintiff has made several claims in this case. They are according to the Joint Pretrial Statement:

A.) That the defendants jointly, "negligently, recklessly and/or intentionally" assaulted plaintiff;

B.) That the defendants jointly, "negligently, recklessly and/or intentionally" used excessive force in arresting plaintiff;

C.) That the defendants used excessive force, unnecessary roughness, and otherwise continued to assault plaintiff after already subduing him and with knowledge that they had already broken his leg;

D.) That the defendants acted unnecessarily and in retaliation for plaintiff's exercise of his right of free speech in violation of his constitutional and civil rights;

E.) That the "defendants jointly, negligently, recklessly and/or intentionally" refused to advise plaintiff of the "cause or authority" of his arrest in violation of 12 F.S.M.C. 214(1); and

F.) That the defendants violated plaintiff's civil rights protected under 11 F.S.M.C. 701 et seq.

Plaintiff also claims that defendant Kolonia Town is separately liable to him for:

A.) Establishing a pattern of the use of excessive force on the part of its officers, and, after being on notice of this pattern and practice "negligently, recklessly and/or intentionally" failed to correct the same;

B.) "Negligently, recklessly and/or intentionally hiring police officers with extensive records of violence or alcohol abuse";

C.) "Negligently, recklessly and/or intentionally failing to provide adequate training to its police officers";

D.) "Negligently, recklessly and/or intentionally supervising or controlling its police officers."

A. Battery/Assault and Use of Excessive Force by Defendant Police Officers

1. The Torts of Battery and Use of Excessive Force

Battery is the harmful or offensive contact with a person, resulting from an act intended to cause that contact, while an assault refers to the apprehension of that offensive contact. Paul v. Celestine, [1990] FMSC 2; 4 FSM Intrm. 205, 207 (App. 1990). Once the court is satisfied from the evidence that an actual injury has occurred then it need not consider the separate tort of assault. Meitou v. Uwera, [1991] FMCSC 2; 5 FSM Intrm. 139, 143 (Chk. S. Ct. Tr. 1991). Plaintiff was the victim of a battery when his right femur was broken by defendant police officers.

The tort of use of excessive force results from the arrest by a person having the authority to do so but accomplished by the use of unreasonable force. Restatement (Second) of Torts §§ 121 and 132 (1964). Herintiaintiff was being arrested without a warrant for the violation of municipal ordinance(s) of Kolonia Town, minor violations of the law. Plaintiff was grabbed around the neck by one officer and his arms were pinned by two other officers while a fourth officer delivered kicks to his right leg. The kicks were the cause of plaintiff's injury.

The Court finds from the evidence that plaintiff was kicked by one of the officers several times in the leg and that these kicks resulted in the fracture of his right femur. The Court also finds that the force applied by defendant officers was excessive and unreasonable, that plaintiff could have been subdued through the use of less force and thus the battery was not privileged. In making this finding the Court relied on the fact that there were four or more officers available to subdue plaintiff.

Civil liability for a battery is not limited to the direct perpetrator of the act charged. 6 Am. Jur. 2d Assault and Battery § 128 (1963). Itnds to any peny person who by any means encourages or incites the battery, or aids and abets it. Id. Each officer who encouraged any other officer to become involved in the fight with plaintiff, either by direct command, by statements or by providing the means for another officer to become involved, is as liable for the battery on plaintiff as the person who actually delivered the kick to his leg. Grandstaff v. City of Borger, [1985] USCA5 953; 767 F.2d 161, 168 (5th Cir. 1985). The liability of the participating officers Aracely, Yamada, Willie, and Luzama is joint and several. 74 Am. Jur. 2d Torts § 66 (1974).

ia Tnia Town Government is vicariously liable for the tort committed by its police officers at Komwunlaid under the doctrine of respondeat superior. Although Kolonia Town is not automatically liable for all the torts of its agents and employees, it is liable for those torts committed in the course and scope of employment. The evidence adduced at trial clearly shows that the officers were acting within the course and scope of their employment. They were all on duty. Those actions, which led to plaintiff's injury, were in the course and scope of the officers' employment. Kolonia Town did not contest their employment or the allegation that the employees were acting within the scope of that employment. When force is employed by police officers in use of even apparent official authority, the government employer should be held responsible for whatever results. Plais v. Panuelo, [1991] FMSC 25; 5 FSM Intrm. 179, 201 (Pon. 1991). Kolonia Town is therefore vicariously liable to the plaintiff for the battery committed by the officers. Its liability is joint and several with that of the officers.

2. The Continued Use of Excessive Force

Plaintiff has alleged that defendants continued to use excessive force upon him after he had been subdued and after they had knowledge of his broken leg. The factual basis for these contentions appears to rest on the way in which plaintiff was placed in the back of the police pickup truck for transport to the Kolonia Town Police Department, and the length of time he was kept there prior to his eventual transport to the Pohnpei State Hospital. The evidence plaintiff produced at trial on these issues has not proved to the Court that the defendants in this case used excessive force to place him in the pickup or that he was required to wait at the Kolonia Police Department for any unreasonable period of time prior to his being taken for medical care. The evidence on these matters was inconsistent even from the witnesses called on plaintiff's behalf. On the issue of rough handling some witnesses stated that plaintiff was handled roughly when put in the truck while others say he was treated gently, while on the amount of time which elapsed prior to his transport to the hospital, witness accounts varied with the range of time during which plaintiff was at the Police Station being estimated at anywhere from five up to 30 minutes. The Court after having had an opportunity to hear and observe the witnesses testify finds that none of these accounts are particularly probative of the issue and that thus plaintiff has failed in his burden of proof.

3. Violation of Plaintiff's Free Speech Rights

Plaintiff alleges that his injury were inflicted in retaliation for his exercise of his rights to free speech thus violating his constitutional rights protected under article IV, section 1 of the FSM Constitution. The facts upon which this claim is based is that while standing over his brother and defendant Aracely during their fight he repeatedly asked, "What's going on?", and, that this statement on his part caused the police to arrest him by the use of excessive force and to batter him. This claim by plaintiff is unsupported by the evidence or any reasonable inference which could be drawn from the evidence produced at trial. It is clear from plaintiff's own testimony that plaintiff was arrested because he was attempting to interfere with the arrest of his cousin, that he was drunk at the time, and that he was disturbing the peace.

4. Failure to Advise Plaintiff of the Cause and Authority for His Arrest

12 F.S.M.C. 214(1) states: "Any person making an arrest shall, at or before the time of arrest, make every reasonable effort to advise the person arrested as to the cause and authority of the arrest."

Plaintiff contends that this statutory provision was violated when the officer defendants did not state the crimes with which he was being charged. It is, however, clear from the testimony of plaintiff that he in fact knew that his arrest was at least likely and that it was probably imminent after he and his brother Dominick attempted to remove their cousin Rulihter Route from the police car of officer Yamada. According to plaintiff, he told his brother after this attempt that they should leave the area because the police might return to arrest them. It is also not disputed by evidence, that plaintiff knew he was dealing with police officers who had the authority to arrest him. After the police did return, and after the altercation between Dominick Conrad and defendant Aracely occurred, plaintiff heard someone say "Arrest that guy." which he took to mean arrest him. Plaintiff knew at that point that he was dealing with police who could arrest him, that he was likely to be arrested and why. The Court is convinced that the intent of the statute has been satisfied by the actions of the defendants on the night of December 31, 1992/January 1, 1993 and will not impose liability on this allegation. See Loch v. FSM, [1984] FMSC 14; 1 FSM Intrm. 566, 569 (App. 1984).

5. Defendants' Defenses

Defendants have raised a number of defenses in their answer. Those defenses include: sovereign immunity, estoppel, laches, waiver, unclean hands, assumption of risk, comparative negligence, contributory negligence; last clear chance; and failure to give proper notice of claim.

The defenses of estoppel, unclean hands and laches are all equitable defenses which do not apply in actions sounding in personal injury. All of plaintiff's claims are for personal injury and are not equitable claims. Therefore none of the above asserted defenses apply.

The tort of battery is an intentional tort, therefore none of the defenses to negligence such as assumption of risk, comparative negligence, contributory negligence and last clear chance apply to intentional actions on the part of the defendants. The Court premises none of its findings of liability herein upon the negligence of defendants. Therefore the above listed defenses are not relevant to the Court's Findings in this action. The legal defense to the tort of battery as it arises in this case is that of privilege. Privilege may be based upon the consent of the person who is the one affected by the touching, or the fact that the touching is a necessity to protect some private or public interest which is of such importance as to justify the threatened harm or, that the touching is one which the actor must cause in the exercise of some action for which freedom of action is essential. Restatement (Second) of Torts §§ 10 and 18 ). Neither consenonsent to the battery nor necessity of freedom of action apply to the facts before the Court. Whether the kicking of plaintiff was a necessity the circumstances present on the night in question is a fa a factual determination for the Court.

Defendants assert the defense of sovereign immunity without citing to any particular statutory enactment or court decision granting to them such immunity. The Court has reviewed the Pohnpei Governmental Liability Act, Pon. S.L. No. 2L-192-91, and can find no provisions therein which would grant to the individuals or to Kolonia Town the asserted immunity from liability. In fact, the aforementioned Act clearly would allow for liability in this case by providing that no immunity would attach for torts committed by governmental employees acting within the scope of their employment. This court has also stated that "Courts lack the authority to establish sovereign immunity to general tort claims through judicial action." Edwards v. Pohnpei, [1988] FMSC 6; 3 FSM Intrm. 350, 363 (Pon. 1988). Thus the defense of sovereign immunity does not apply to the defendants in this case.

B. Negligence by Kolonia Town

Plaintiff seeks to recover from Kolonia Town under a negligence theory, alleging that defendant Kolonia Town was negligent in several regards: in failing to adequately train its police officers; in negligently hiring officers who had extensive records of violence and alcohol abuse; in negligently failing to adequately supervise those officers, and by establishing a pattern of the use of excessive force and then negligently failing to take reasonable steps to correct same.

Kolonia Town would be liable for the injuries proximately caused by employment of poorly trained police officers, and for failure to adequately train them, Alaphen v. Municipality of Moen, [1986] FMSC 20; 2 FSM Intrm. 279, 280 (Truk 1986). But here, the plaintiff has failed to prove by any competent evidence that the level of training provided by Kolonia Town to its officers was deficient, or that that level of training violated the proper standard of care in the community, or even what level of training would be appropriate giving due consideration to the social and geographical configuration of the Federated States of Micronesia. The plaintiff would have the Court adopt a rule in this case mandating that a specific amount of training is required and, have it further find that the training given in this case was violative of that rule, without providing to the Court the proof of what level of training is appropriate. The Court will not do so.

As to the claim of negligent hiring, the plaintiff showed by police records from the Pohnpei State Police that Captain Aracely had been charged and or convicted of several offenses involving violence during the late 1970's and early 1980's, more than ten years before the incident at Komwunlaid. Plaintiff did not show any incidents more recent than ten years. Plaintiff again failed in his proof of the facts necessary to hold Kolonia Town liable. In this instance plaintiff failed to prove that the hiring of a police officer or officers with ten year old charges and or convictions for violent behavior was the proximate cause of his injury. Black's Law Dictionary 1103 (5th ed. 1979), defines proximate cause as:

the primary or moving cause, or that which, in a natural and continuous sequence; unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act.

This Court finds that Kolonia's negligence in its hiring of the officers in question, if it was negligent, was so remote and attenuated that it cannot be held to be the proximate cause of plaintiff's injury.

Plaintiff's claim for Kolonia Town's alleged policy of the use of excessive force and the negligent failure to correct it also fails for lack of proof. Nowhere in any of the testimony produced during the trial or in any of the exhibits introduced by plaintiff was any proof to be found of any "pattern of the use of excessive force" on the part of Kolonia Town police officers. No other instance of the use of excessive force by defendants was presented.

II. Civil Rights Claims

Due Process

Plaintiff has made a civil rights claims pursuant to 11 F.S.M.C. 701(3), which provides:

Civil liability. A person who deprives another of any right or privilege protected under this Section shall be civilly liable to the party injured in an action at law, suit in equity, or other proper proceeding, without regard to whether a criminal case has been brought or conviction obtained.

The word "person" includes government entities, e.g., Kolonia Town. Plais, 5 FSM Intrm. at 205. The commission of the intentional tort of battery by the police officers in the scope of their employment is a denial of due process of law. Meitou, 5 FSM Intrm. at 144. Plaintiff alleges that the police officers' kicking and breaking of his leg was an intentional attempt to violate his constitutional rights under Article IV, § 3, eprived him of life, lib, liberty, or property without due process of law. Physical abuse committed by police officers may violate a prisoner's right to due proof law. See Paul, 4 FSM Intrm. at 208; Tolu>Tolenoa v. Alokoa, [1986] FMSC 16; 2 FSM Intrm. 247, 250 (Kos. 1986); Plais, 5 FSM Intrm. at 192-93. The right to due process of law is violated when a police officer batters a person. Meitou, 5 FSM Intrm. at 144. The Court thus here reiterates the standard set down in Meitou 5 FSM Intrm. at 144. The public at large has the right to be free of invasions of their person and personal security by any agent of the government and suspects, such as plaintiff, have the right to be free from the use of excessive force during their arrest.

Kolonia Town is liable to plaintiff because it has ratified the actions of the individual defendants. That Kolonia has ratified the actions of the officers is plain from the lack of any internal discipline whatsoever. Grandstaff, 767 F.2d at 171. The following facts show that Kolonia ratified the conduct of the police officers at Komwunlaid and accepted their use of excessive force: (1) no criminal charges were brought against the officers for the battery of plaintiff, and (2) none of the participating officers were ever disciplined.

The Court therefore concludes that the defendant officers violated plaintiff's right to due process of law by using excessive force during his arrest which resulted in his leg being broken. Kolonia Town is liable for its ratification of defendant officers' actions.

III. Damages

The plaintiff claimed compensatory and punitive damages in his Complaint. Plaintiff makes a specific claim for lost wages that accrued as a result of his injury at the hands of the defendants. He may recover them as part of his claim for compensatory damages. Meitou, 5 FSM Intrm. at 145. The plaintiff put on no evidence of his medical expenses, and the Court will not, and does not, infer from the extent of his actual physical injury that he did incur and will continue to incur medical expenses.

Plaintiff worked as a sergeant at arms for the Pohnpei Legislature and received income of $275.46 bi-weekly. Plaintiff testified that he did not return to his job after the incident at Komwunlaid and that he was terminated from that employment because of his injury. Thereafter, plaintiff was unemployed for a period of six months earning no income resulting in a loss to him of $3,580.98. During the 18 month period from July 1, 1993 to January 1, 1995 plaintiff was employed for 11 months as a taxi driver earning $160.00 bi-weekly. This decrease in earnings resulted in $2,655.58 in lost income. During that same period from July 1, 1993 to January 1, 1995 plaintiff was unemployed for a period of six months during which time he had no income. This resulted in lost income of $4,131.90. In the month of January 1995 plaintiff was employed at Ting Hong Oceanic Enterprises earning $240.00 for that one month period. This resulted in lost income of $310.92. Finally, from February 1995 to the September 1996 plaintiff was employed by Mobil Oil as a marine operator earning a total of $7,800.00. This reduced earning resulted in lost income for this period of $2,942.94. Plaintiff's total lost income since the incident at Komwunlaid up to the commencement of trial is $13,622.32. At trial plaintiff produced no evidence of a loss of future earnings and the Court makes no award based thereon.

Plaintiff seeks the award of punitive damages in the amount of $50,000.00. Punitive damages are typically given as an enhancement of compensatory damages because of the wanton, reckless, malicious or oppressive character of defendant's conduct. Primo v. Refalopei, [1996] FMSC 51; 7 FSM Intrm. 423, 435 (Pon. 1996). Based upon the whole record in this case and the economic realities of the Federated States of Micronesia the Court finds that punitive damages are not warranted and that the award of substantial compensatory damages herein will serve to deter any similar acts on the part of defendants in the future. The officers involved were justified in their arrest of plaintiff and were further justified in the use of reasonable force to effect that arrest. Plaintiff resisted arrest. Defendants used more force than was necessary to effect the arrest, but the Court finds that their actions were not of such a wanton, reckless, malicious or oppressive character as to merit the award of punitive damages herein.

CONCLUSION

The Court awards Conrad Conrad compensatory damages, exclusive of attorneys fees and costs, as follows:

1. For the battery, the defendant officers and Kolonia Town are jointly and severally liable to the plaintiff for the sum of $4,540.77.

2. For the use of excessive force in effecting the arrest of plaintiff the defendant officers, and Kolonia Town are jointly and severally liable to the plaintiff for the sum of $4,540.78.

3. For violation of the plaintiff's civil rights, the defendant officers, and Kolonia Town are jointly and severally liable to the plaintiff for the sum of $4,540.77.

4. The Court further awards plaintiff $1,377.68 as compensation for his pain and suffering occasioned by his injury at the hands of defendants and for which the defendants are jointly and severally liable.

Compensatory damages may be awarded a party who is deprived of civil rights. Plais, 5 FSM Intrm. at 212-13. This award of damages includes reasonable attorney fees and costs of suit. 11 F.S.M.C. 701(3). Within thirty days of entry of this Order, Plaintiff's attorney shall submit a motion for attorney fees and costs that shall state in detail the time for each service provided in the case, what was actually done, the amount of attorney fees and costs requested, and the nature (e.g., contingency, hourly fee, written, oral) of plaintiff's contract with counsel for services rendered.

The Clerk of the Court is directed to make and enter a judgment, in favor of Conrad Conrad, and against the defendants, in the amount of 15,000.00, exclusive of attorney fees and costs. The Court will enter a separate judgment for attorneys fees and costs if it finds them to be justified. All other claims by the plaintiff are dismissed with prejudice.

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