Berman v Pohnpei [2009] FMSC 39; 16 FSM Intrm. 567 (Pon. 2009) (28 September 2009)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2008-025

MARY BERMAN,
Plaintiff,

vs.

POHNPEI STATE GOVERNMENT,
Defendant.

_____________

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Andon L. Amaraich
Chief Justice

Trial: June 30-July 3, 2009
Decided: September 28, 2009

APPEARANCES:

For the Plaintiff: Mary Berman, Esq. (pro se)
P.O. Box 163
Kolonia, Pohnpei FM 96941

For the Defendant: Ira Shiflett, Esq.
Assistant Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure  Arrest and Custody; Search and Seizure  Probable Cause
Once the police have reasonable suspicion that a suspect has committed a criminal offense, they may conduct an investigatory stop. An investigatory stop is a temporary stop of a car and its passengers that is used to confirm or dispel the suspicion that caused the investigatory stop. These stops are based on less than probable cause. Information gathered at the stop can be used to arrest or release the suspects. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Criminal Law and Procedure  Arrest and Custody; Search and Seizure  Probable Cause
The police have a right to conduct a routine traffic stop, and when they, in order to investigate and confirm or refute their suspicions, stopped a car in which there was a passenger who they suspected had abandoned his Honda after driving it off the road while intoxicated, they did not conduct any unlawful search or seizure. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Criminal Law and Procedure  Arrest and Custody; Search and Seizure  Probable Cause
Typically, before an arrest can be made, a warrant must be issued for that arrest. A warrant requires a showing of probable cause, and probable cause exists when there is evidence and information sufficiently persuasive such that a cautious person would believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Criminal Law and Procedure  Arrest and Custody; Search and Seizure  Probable Cause
Pohnpei state law authorizes policemen to make an arrest without a warrant when 1) a breach of the peace or other criminal offense has been committed, and the offender is shall endeavoring to escape, he may be arrested by virtue of an oral order of any official authorized to issue a warrant, or without such order if no such official be present; 2) anyone is in the act of committing a criminal offense; 3) a criminal offense has been committed, and a policeman has reasonable ground to believe that the person to be arrested has committed it; and 4) even in cases where it is not certain that a criminal offense has been committed, arrest and detain for examination persons who may be found under such circumstances as justify a reasonable suspicion that they have committed or intend to commit a felony. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Criminal Law and Procedure  Obstructing Justice
Under Pohnpei law, every person who unlawfully resists or interferes with any law enforcement officer in the lawful pursuit of his duties, or who unlawfully tampers with witnesses or attempts to prevent their attendance at trials, is guilty of obstructing justice. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Criminal Law and Procedure  Arrest and Custody; Search and Seizure  Probable Cause; Torts  False Arrest
A person arrested for obstructing justice because she refused to give the police officers access to her car and interfered with their peaceful attempts to talk with her husband, whom she locked inside the car, is arrested for an offense committed in the police officers' presence, and, that being the case, a warrant did not need to be issued prior to the arrest. Since the officers correctly determined that they had probable cause to arrest without a warrant because her conduct fell within the Pohnpei state law definition of obstruction of justice, they did not conduct an unlawful or false arrest of her. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Torts  Battery; Torts  Use of Excessive Force
Excessive force is defined as the use of unreasonable force by a person having the authority to arrest. A person who has been arrested has the right to be free of excessive force and use of excessive force may constitute battery. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Criminal Law and Procedure  Arrest and Custody; Torts  Use of Excessive Force
Although an arrestee sustained some bruising to her wrists, the bruising was not the result of any arresting officer's conduct since when the arrestee was handcuffed, the cuffs were loose enough that they could slide up and down her wrists and there was enough space between the metal of the cuff and her skin to fit a regular-sized ballpoint pen, but during the travel from the arrest site to the police station, she struggled with the handcuffs, resulting in their tightening further around her wrists. Since the tightening of the handcuffs was not the result of an officer's conduct, but of the arrestee's own movements, the police did not use any unreasonable force in arresting and handcuffing her. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Torts  Assault; Torts  Battery
When there was no evidence that any policemen had an intent to cause an arrestee physical or bodily harm, the state is not liable to her under either theory of assault or battery. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Evidence  Burden of Proof; Torts
A plaintiff has not met her burden of showing that the state is liable to her for "summary punishment" when she did not disclose what specific conduct she believed constituted summary punishment and her complaint was silent on that point as well. Berman v. Pohnpei, 16 FSM Intrm. ---, - -- (Pon. 2009).

Criminal Law and Procedure  Arrest and Custody
Upon arrest, the person arrested must be informed of his or her rights, including the right to remain silent and the right to counsel. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Criminal Law and Procedure  Arrest and Custody
Under Pohnpei state law, any person arrested must be advised that a) the individual has a right to remain silent; b) the police will, if the individual so requests, endeavor to call counsel to the place of detention and allow the individual to confer with counsel there before he is questioned further, and allow him to have counsel present while he is questioned by the police if he so desires; and c) the services of a public defender are available for these purposes without charge. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Civil Rights; Criminal Law and Procedure  Right to Counsel; Torts  Damages  Nominal
Although an arrestee, who was not informed of her rights to access to counsel when she was handcuffed, was told her full rights at the police station, this does not excuse the police's failure to advise her of rights regarding to access to counsel on the scene when she was first placed in handcuffs. Since the arrestee was not harmed by the failure to advise her, when she was first placed in handcuffs, of rights regarding to access to counsel, the state is liable to her for nominal damages in the amount of one dollar. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Criminal Law and Procedure  Right to Counsel
Upon request, the police must allow the arrested person to call an attorney. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Criminal Law and Procedure  Right to Counsel
An arrestee was not denied access to legal counsel when she was allowed several attempts to call an attorney, but the attorneys that she attempted to contact via telephone were not available at that time. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Criminal Law and Procedure  Arrest and Custody
An arrest is illegal if, at or before the time of arrest, the police make no reasonable effort to advise the person arrested the cause and authority for the arrest. Any person making the arrest must make every reasonable effort to advise the suspect why she is being arrested. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Criminal Law and Procedure  Arrest and Custody
When the police advised a person that she was being arrested for obstructing a police investigation at or before the time the handcuffs were placed on her wrists and also advised her that she was arrested for pushing a police sergeant, they did not unlawfully refuse to inform her of the reasons for her arrest and detention. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Torts  Infliction of Emotional Distress
When there is no evidence in the record of physical injury to the plaintiff or of any physical manifestation of emotional distress by the plaintiff, no award of damages can be made for emotional distress. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Civil Rights; Constitutional Law  Equal Protection
When a complaint alleges that the plaintiff was denied equal protection of the laws, the suit will be deemed a private cause of action under 11 F.S.M.C. 701 for violation of civil rights guaranteed under the FSM Constitution even though the statute is not expressly cited in the complaint. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Constitutional Law  Equal Protection
The FSM Constitution at Article IV, Section 4, guarantees that similarly situated individuals not be treated differently due to some sort of invidious discrimination. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

Civil Rights; Constitutional Law  Due Process  Notice and Hearing; Constitutional Law  Equal Protection
When a plaintiff has alleged violation of her due process rights, but it is proven otherwise, the plaintiff cannot recover under the civil rights statute. When, at trial, the plaintiff did not present evidence that she was treated differently than any other person in the same class and did not present evidence that she was denied notice and an opportunity to be heard, the state is not liable to her on the claims of denial of equal protection of the laws, violation of due process, and violation of her civil rights. Berman v. Pohnpei, 16 FSM Intrm. ---, --- (Pon. 2009).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

This matter came on for trial from June 30, 2009, to Friday, July 3, 2009. Mary Berman ("Berman") was present on her own behalf for all trial proceedings and Assistant Attorney General Ira Shiflett was present on behalf of defendant Pohnpei State Government ("Pohnpei").

This case involves numerous claims by Mary Berman against the Pohnpei State Government and various police officers. Berman's complaint alleges that the policemen's conduct constituted: (1) violations of her civil rights; (2) unlawful search and seizure; (3) unlawful arrest; (4) false arrest; (5) assault; (6) battery; (7) intentional infliction of emotional distress; (8) negligent infliction of emotional distress; (9) use of excessive and unreasonable force; (10) unlawful summary punishment; (11) compelling testimony without first informing Berman of her right to remain silent; (12) denial of access to legal counsel; (13) denial of liberty without due process; (14) denial of equal protection of the law; and (15) unlawful refusal to inform Berman of the reason for her arrest and detention.[1] Berman raised each of these issues at trial except for the intentional and negligent infliction of emotional distress claims. Pohnpei denied liability on each of Berman's claims, whether she raised them at trial or in her complaint.

At trial, the court accepted the parties' stipulation of the authenticity and admissibility of plaintiff Berman's trial exhibits numbers 1 through 26 and defendant Pohnpei State Government's trial exhibits letters A through I.

In addition to Berman's trial exhibits, her case-in-chief included testimony from police officers Jackson Joseph, James Edgar, Theodore Bonaparte, Valentino Koike, Nixon Andon and her doctor, Dr. Bryan Isaac. Mary Berman also took the stand and testified on her own behalf. At the conclusion of Berman's case-in-chief, Pohnpei moved to dismiss this case pursuant to FSM Civil Rule 41(b). The Court denied Pohnpei's motion in open court after oral argument from both parties. Pohnpei then called police officers Jackson Joseph and James Edgar to the stand. Berman declined to present any further evidence in rebuttal.

The court now sets forth the following findings of fact and conclusions of law.

I. FINDINGS OF FACT

The plaintiff in this case, Mary Berman, is married to Kadalino Damarlane. On the night of June 21, 2006, she and her husband were arrested, handcuffed in standard-issue handcuffs and taken to the Kolonia police station. The standard handcuffs do not have sharp razors built into them, as Berman testified. Berman was arrested by Sergeant Iriarte for obstruction of justice and for pushing Iriarte in the chest. Mr. Damarlane was arrested on suspicion of driving his Honda sedan while intoxicated and for abandoning his vehicle on the side of the road in Pahnmwinsapw, Nett. With limited exceptions, the policemen handcuff a person with their hands behind their back. In this case, the court notes that there was conflicting testimony as to whether Berman was handcuffed with her hands behind her back or in front of her body. The court concludes that Berman was handcuffed with her hands in front of her. However, the court's conclusions of law here would remain the same even if it found that she were handcuffed in the front.

Prior to the arrests, police officers Joseph Jackson and James Edgar were conducting a routine, daily patrol of their assigned area in the Nett community in their police truck when they received a report that Mr. Damarlane had abandoned his Honda (license plate number D_0272) on the side of the road. The report originated from an off-duty police officer, Mr. Valentino Koike, who heard the sound of a car crash while he was standing outside of his home, which is located close to where Mr. Damarlane abandoned his vehicle. He then witnessed Mr. Damarlane walking in the direction of U, away from the abandoned vehicle. The eyewitness information from Mr. Koike was relayed to the Kolonia police station and then to Officers Jackson and Edgar. Mr. Jackson and Mr. Edgar then spotted a red Jeep being driven by Mary Berman in which Mr. Damarlane was a passenger. Officers Jackson and Edgar initiated a routine traffic stop in order to obtain information about the nature and cause of Mr. Damarlane's abandoning the Honda. The officers also suspected that Mr. Damarlane had been consuming alcohol at the time of that incident. The purpose of stopping Berman's vehicle was to investigate whether in fact these suspicions were true.

Berman and Damarlane did not cooperate with the efforts of the policemen to obtain information about the incident regarding Mr. Damarlane's abandoned vehicle. Berman was argumentative and prevented the police officers from speaking with her husband by instructing him to remain inside the vehicle with the doors locked and the passenger window rolled up. The officers did communicate with Berman while she remained inside of her vehicle with her door window partially rolled down. Berman told the officers that she and her husband needed to return to their home in Awak because her husband had a headache. The officers offered to provide medical assistance on the scene or go to the hospital for treatment, after which they could proceed with obtaining a report. Berman refused the officers' offer of medical assistance. The officers requested more than once that Mr. Damarlane go to the Kolonia police station to make a report about the incident regarding his abandoned Honda. They also requested that Mr. Damarlane submit to a field sobriety test. Mr. Damarlane remained non-responsive. Berman refused to go to the police station. Berman continued to argue with the police officers, including Sergeant Iriarte. Mr. Damarlane remained silent.

Sergeant Iriarte advised Berman that she was being arrested for obstructing justice because she refused to give the police officers access to her car and was interfering with the officers' peaceful attempts to communicate with Mr. Damarlane. When she was handcuffed, Sergeant Iriarte advised Berman of her right to remain silent, but he did not advise her of her rights regarding her rights to access to legal counsel as set forth in subsections (b) and (c) of 62 Pon. C. § 2_118(2), which states that,

the police will, if the individual so requests, endeavor to call counsel to the place of detention and allow the individual to confer with counsel there before he is questioned further, and allow him to have counsel present while he is questioned by the police if he so desires; and [t]hat the services of the public defender, when in the vicinity of his local representative, are available for these purposes without charge.

62 Pon. C. § 2_118(2)(b) and (c).

Berman was then handcuffed and taken to the police station in Kolonia.

When Berman was initially handcuffed, there was enough space for a regular-sized ballpoint pen to fit between her wrist and the handcuffs  enough room for the handcuffs to slide up and down her wrists. On the way to the police station, however, she struggled with the handcuffs and this resulted in the handcuffs tightening around her wrists which in turn caused some bruising on her wrists. Berman's medical treatment for the bruises consisted of one appointment at the Pohnpei Family Health Clinic (PFHC) with Dr. Bryan Isaac on June 22, 2006. Dr. Isaac advised her to soak them in warm water. Berman told Dr. Isaac at her appointment that she was arrested for telling her client not to answer public safety officers. Dr. Isaac made a note of this comment in Berman's medical file, which was admitted into evidence as Exhibit 12. When Berman saw Dr. Isaac, she did not complain about any psychiatric injuries or depression. Berman also met with Dr. Garsten, who works in the Pohnpei Family Health Clinic, for stress. Beyond these two doctor's appointment, Berman did not receive any further medical treatment related to this case.

After arriving at the police station, a police officer removed Berman's handcuffs and she was again told her rights, this time both orally and in writing  including those rights regarding access to legal counsel, 62 Pon. C. § 2_118(2)(b) and (c), which she was not told at the time of her arrest. Berman was also provided access to a telephone and permitted to make phone calls to different attorneys of her choosing, though she did not reach any of the attorneys she tried to call. At least one of the calls made was to the Public Defender's office, which was closed because it was 10:00 p.m. Berman was then released from police custody. The total time that elapsed from the time Berman's car was stopped until she was released from custody was approximately two hours.

II. CONCLUSIONS OF LAW

Mary Berman did not carry her burden of showing by a preponderance of the evidence that defendant Pohnpei State Government is liable under any of the following theories: (1) violations of her civil rights; (2) unlawful search and seizure; (3) unlawful arrest; (4) false arrest; (5) assault; (6) battery; (7) intentional infliction of emotional distress; (8) negligent infliction of emotional distress; (9) use of excessive and unreasonable force; (10) unlawful summary punishment; (11) compelling testimony without first informing Berman of her right to remain silent; (12) denial of access to legal counsel; (13) denial of liberty without due process; (14) denial of equal protection of the law; and (15) unlawful refusal to inform Berman of the reason for her arrest and detention.

Mary Berman did carry her burden of showing that no police officer informed her of her rights regarding access to legal counsel at or around the time she was handcuffed and arrested. In particular, the police failed to advise Berman that

the police will, if the individual so requests, endeavor to call counsel to the place of detention and allow the individual to confer with counsel there before he is questioned further, and allow him to have counsel present while he is questioned by the police if he so desires; and [t]hat the services of the public defender, when in the vicinity of his local representative, are available for these purposes without charge.

62 Pon. C. § 2_118(2)(b) and (c).

Berman is entitled to nominal damages in the amount of one dollar ($1) for the police's failure to inform her of her rights regarding access to legal counsel as governed by 62 Pon. C. § 2_118(2)(b) and (c). See, e.g., Robert v. Simina, [2006] FMSC 55; 14 FSM Intrm. 438, 444 (Chk. 2006).

III. DISCUSSION

A. The police had a reasonable suspicion that Damarlane, who was a passenger in the car being driven by Berman at the time of the stop, committed a criminal offense and therefore it was lawful to stop Berman's car.

Once the police have reasonable suspicion that a suspect has committed a criminal offense, they may conduct an investigatory stop. Kosrae v. Tosie, [2004] FMKSC 5; 12 FSM Intrm. 296, 300 (Kos. S. Ct. Tr. 2004). An investigatory stop is a temporary stop of a car and its passengers that is used to confirm or dispel the suspicion that caused the investigatory stop. These stops are based on less than probable cause. Id. Information gathered at the stop can be used to arrest or release the suspects. Id.

The police officers involved in this case testified that they stopped Berman's car in which Mr. Damarlane was a passenger because they suspected he abandoned his Honda after driving it off the road while intoxicated. The police have a right to conduct a routine traffic stop, as they did on the night of June 21, in order to investigate and confirm or refute their suspicions. Pohnpei did not conduct any unlawful search or seizure.

B. Berman's warrantless arrest was made with probable cause.
Typically, before an arrest can be made, a warrant must be issued for that arrest. A warrant requires a showing of probable cause. Probable cause exists when there is evidence and information sufficiently persuasive such that a cautious person would believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation. See FSM v. Wainit, [2002] FMSC 14; 10 FSM Intrm. 618, 621 (Chk. 2002) (citing FSM v. Zhong Yuan Yu No. 621[1994] FMSC 53; , 6 FSM Intrm. 584, 588 (Pon. 1994)). Moreover, Pohnpei State Law authorizes policemen to make an arrest without a warrant in the following situations:

(1) Where a breach of the peace or other criminal offense has been committed, and the offender shall endeavor to escape, he may be arrested by virtue of an oral order of any official authorized to issue a warrant, or without such order if no such official be present.

(2) Anyone in the act of committing a criminal offense may be arrested by any person present, without a warrant.

(3) When a criminal offense has been committed, and a policeman has reasonable ground to believe that the person to be arrested has committed it, such policeman may arrest the person without a warrant.

(4) Policemen, even in cases where it is not certain that a criminal offense has been committed, may, without a warrant, arrest and detain for examination persons who may be found under such circumstances as justify a reasonable suspicion that they have committed or intend to commit a felony.

62 Pon. C. § 2_111. (Source: TTC 457 (1966); 12 TTC 61 (1970); 12 TTC 61 (1980)).

"Every person who unlawfully resists or interferes with any law enforcement officer in the lawful pursuit of his duties, or who unlawfully tampers with witnesses or attempts to prevent their attendance at trials, shall be guilty of obstructing justice, and upon conviction thereof shall be imprisoned for a period of not more than one year or fined not more than $500, or both such fine and imprisonment." 61 Pon. C. § 10_152. Berman was arrested for obstructing justice because she refused to give the police officers access to her car and interfered with the officers' peaceful attempts to talk with her husband, whom she locked inside the car. In this instance, Berman committed the obstruction for which she was arrested while in the police officers' presence. That being the case, a warrant did not need to be issued prior to the arrest and therefore Sergeant Iriarte was entitled to arrest Berman without a warrant. The officers correctly determined that they had probable cause to arrest Berman without a warrant because her conduct fell within the description of the Pohnpei State Law definition of obstruction of justice. Pohnpei did not conduct an unlawful or false arrest of Berman.

C. The police did not use excessive force in arresting and handcuffing Berman.

Berman argued that the policemen used excessive force by tightening the handcuffs too tightly around her wrists. In the FSM, excessive force is defined as the use of unreasonable force by a person having the authority to arrest. Conrad v. Kolonia Town, [1997] FMSC 34; 8 FSM Intrm. 183, 191 (Pon. 1997). A person who has been arrested has the right to be free of excessive force and use of excessive force may constitute battery. Atesom v. Kukkun, [2001] FMSC 51; 10 FSM Intrm. 19, 22 (Chk. 2001). Even though Berman sustained some bruising to her wrists, the court finds that the bruising was not the result of any officer's conduct. To the contrary, the court finds that when Berman was handcuffed, the cuffs were loose enough that they could slide up and down her wrists and that there was enough space between the metal of the cuff and her skin to fit a regular-sized ballpoint pen. During the travel from the site of the arrest to the police station, Berman struggled with the handcuffs, which resulted in their tightening further around her wrists. The tightening of the handcuffs was not the result of an officer's conduct, but rather was the result of Berman's own movements. The police did not use any unreasonable force in arresting and handcuffing Berman.

1. Assault and Battery

Berman also claims that Pohnpei is liable to her for assault and battery. Under Pohnpei State Law,

[e]very person who unlawfully and intentionally offers or attempts, with force or violence, to strike, beat, wound or to do bodily harm to another, shall be guilty of assault, and upon conviction thereof shall be imprisoned for a period of not more than six months or fined not more than $100, or both such fine and imprisonment.

61 Pon. C. § 5_135 ("Assault").

Also,

[e]very person who recklessly or unlawfully and intentionally strikes, beats, wounds or otherwise does bodily harm to another shall be guilty of assault and battery, and upon conviction thereof shall be imprisoned for a period of not more than two years or fined not more than $500, or both such fine and imprisonment.

61 Pon. C. § 5_134 ("Assault and battery").

There was no evidence that any of the policemen had an intent to cause Berman physical or bodily harm. The court finds that Pohnpei is not liable to Berman under either theory of assault or battery.

2. Unlawful summary punishment

At trial, Berman did not disclose what specific conduct she believed constituted summary punishment. Berman's complaint is silent on this issue as well. Accordingly, Berman has not met her burden of showing that Pohnpei is liable to her for unlawful summary punishment.

D. Did the police timely inform Berman of her rights?

Upon arrest, the person arrested must be informed of his or her rights, including the right to remain silent and the right to counsel. FSM v. Louis, [2007] FMSC 34; 15 FSM Intrm. 206 (Pon. 2007). Under Pohnpei State Law, 62 Pon. C. § 2_118(2) (rights of persons arrested),

any person arrested shall be advised as follows: (a) That the individual has a right to remain silent; (b) That the police will, if the individual so requests, endeavor to call counsel to the place of detention and allow the individual to confer with counsel there before he is questioned further, and allow him to have counsel present while he is questioned by the police if he so desires; and (c) That the services of the public defender, when in the vicinity of his local representative, are available for these purposes without charge.

Berman was not informed of her rights under subsections (b) and (c) of 62 Pon. C. § 2_118(2) regarding her right to access to counsel when she was handcuffed. Although she was told her full rights at the Kolonia police station, this does not excuse the police's failure to advise her of rights regarding to access to counsel on the scene when she was first placed in handcuffs.

But Berman was not harmed by the police's failure to advise her of rights regarding to access to counsel on the scene when she was first placed in handcuffs. Accordingly, Pohnpei is liable to Berman for nominal damages in the amount of one dollar ($1).

1. The police did not deny Berman access to legal counsel.

Although the court finds that the police did not timely advise Berman of all of her rights upon handcuffing her, the court nonetheless does not find that Berman was denied access to legal counsel. Upon request, the police must allow the arrested person to call an attorney. Warren v. Pohnpei State Dep't of Public Safety, [2005] FMSC 49; 13 FSM Intrm. 483, 491 (Pon. 2005). There is no evidence in the record to indicate that the police refused to allow Berman to request to retain or contact an attorney. To the contrary, Berman does not dispute that she was allowed several attempts to call an attorney. Unfortunately, the attorneys that she attempted to contact via telephone were not available at that time. But the fact that Berman was unable to reach an attorney does not mean that she was denied access by Pohnpei to counsel. Pohnpei did not deny Berman access to legal counsel.

E. The police timely disclosed to Berman the reasons for her arrest.

An arrest is illegal if, at or before the time of arrest, the police make no reasonable effort to advise the person arrested the cause and authority for the arrest. FSM v. George, [1994] FMSC 41; 6 FSM Intrm. 626, 628 (Kos. 1994). Any person making the arrest must make every reasonable effort to advise the suspect why she is being arrested. Warren, 13 FSM Intrm. at 496. Officer Jackson Joseph testified, and the court accepts as true, that Sergeant Iriarte advised Berman that she was being arrested for obstructing a police investigation at or before the time the handcuffs were placed on her wrists. This determination was made on the basis that Berman was arguing with the officers. The police timely disclosed to Berman that one of the reasons for her arrest was her obstruction of justice. In addition, Berman was advised that she was arrested for pushing Sergeant Iriarte. Pohnpei did not unlawfully refuse to inform Berman of the reasons for her arrest and detention.

F. The police did not compel any testimony from Berman.

The police did not compel any testimony or statements from Berman while she was under their custody and control. Berman was not forced to provide any testimony on any criminal or other matter by the police. Berman was advised of her right to remain silent both at the time she was handcuffed and then again at the Kolonia police station. Pohnpei is not liable to Berman for compelling testimony without first informing Berman of her right to remain silent.

G. All remaining claims are without merit

Berman failed to present evidence on the remaining claims of intentional and negligent infliction of emotional distress and denial of equal protection of the law and due process. The court finds these claims are without merit.

1. Intentional and negligent infliction of emotional distress
Pohnpei, as the defendant in this case, must exercise due care not to cause others emotional distress that leads in turn to a foreseeable physical result, but when there is no evidence in the record of physical injury to the plaintiff or of any physical manifestation of emotional distress by the plaintiff, no award of damages can be made for emotional distress. Hauk v. Lokopwe, [2006] FMSC 2; 14 FSM Intrm. 61, 65 (Chk. 2006). At trial, Berman did not present any evidence of any physical manifestation of emotional distress and nothing in the record establishes these claims. Therefore, Pohnpei is not liable to Berman for intentional or negligent infliction of emotional distress.

2. Denial of equal protection of the laws and due process

When a complaint alleges that the plaintiff was denied equal protection of the laws, the suit will be deemed a private cause of action under 11 F.S.M.C. 701 for violation of civil rights guaranteed under the FSM Constitution even though the statute is not expressly cited in the complaint. Berman v. College of Micronesia_FSM, [2007] FMSC 20; 15 FSM Intrm. 76 (Pon. 2007). Berman's complaint does not cite 11 F.S.M.C. 701. The FSM Constitution at Article IV, Section 4, guarantees that similarly situated individuals not be treated differently due to some sort of invidious discrimination. Id. Where a plaintiff, such as Berman, has alleged violation of her due process rights, but it is proven otherwise, the plaintiff cannot recover under the civil rights statute. Nena v. Kosrae, [1990] FMKSC 2; 5 FSM Intrm. 417, 425 (Kos. S. Ct. Tr. 1990). At trial, Berman did not present evidence that she was treated differently than any other person in the same class. She likewise did not present evidence that she was denied notice and an opportunity to be heard. Accordingly, Pohnpei is not liable to Berman on the claims of denial of equal protection of the laws, violation of due process, and violation of her civil rights.

IV. CONCLUSION

The Pohnpei State Government is liable to Berman for nominal damages of one dollar ($1) resulting from the police officers' failure to fully inform Berman of her rights upon arresting her, in particular, her rights pertaining to access to legal counsel as required by 62 Pon. C. § 2_118(2)(b) and (c). Each of Berman's other claims are hereby dismissed with prejudice. Judgment shall enter accordingly.

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^[1]Berman’s complaint also listed a claim for malicious prosecution, which was dismissed by this court’s June 4, 2009 order on Pohnpei’s motion for summary judgment.