FSMC, TITLE 11.  CRIMES
 
 
Chapter 7:  Civil Rights

701.     Deprivation of rights.
702.     Right to full and equal enjoyment of public accommodations.

Editor's note:  Former chapter 7 of this title on Civil Rights was repealed in its entirety by PL 11-72 1.  This new chapter 7 was enacted by PL 11-72 76 and is part of the Revised Criminal Code Act.

      701.  Deprivation of rights.

     (1)  A person commits a crime if he or she willfully, whether or not acting under the color of law, deprives another of, or injures, oppresses, threatens, or intimidates another in the free exercise or enjoyment of, or because of his or her having so exercised any right, privilege, or immunity secured to him by the Constitution or laws of the Federated States of Micronesia, the laws of the Trust Territory of the Pacific Islands, or the Constitution or laws of the United States of America which are applicable to the Federated States of Micronesia.

     (2)  A person convicted under this section shall be imprisoned for not more than ten years.

     (3)  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 for redress, without regard to whether a criminal case has been brought or conviction obtained.  In an action brought under this section, the court may award costs and reasonable attorney's fees to the prevailing party.

Source:  PL 11-72 77.

Case annotations:  National civil rights claims under 11 FSMC 701 furnish a jurisdictional basis for the case to be heard by the FSM Supreme Court.Panuelo v. Pohnpei, 2 FSM Intrm. 150, 153 (Pon. 1986).

Actions of a police officer in stripping a prisoner to punish and humiliate him, then beating him and damaging his pickup truck, constituted violation of the prisoner's constitutional rights to be free from cruel and unreal punishments and his due process rights. Tolenoa v. Alokoa, 2 FSM Intrm. 247, 250 (Kos. 1986).

Because the social and economic situation in the FSM is radically different from that of the United States, rates for attorney's fees set by United States courts in connection with civil rights actions there are of little persuasive value for a court seeking to set an appropriate attorney's fee award in civil rights litigation within the FSM.  Tolenoa v. Alokoa, 2 FSM Intrm. 247, 255 (Kos. 1986).
 
Attorney's fee awards to prevailing parties in civil rights litigation should be sufficiently high at a minimum level to avoid discouraging attorneys from taking such cases and should enable an attorney who believes that a civil rights violation has occurred to bring a civil rights case without great financial sacrifice. Tolenoa v. Alokoa, 2 FSM Intrm. 247, 255 (Kos. 1986).

A municipality which employs untrained persons as police officers, fails to train them and authorizes their use of excessive force and summary punishment, will be held responsible for their unlawful acts, including abuse of a prisoner arrested without being advised of the charges or given an opportunity for bail, whose handcuffs were repeatedly tightened during his 14-hour detention in such a way that he was injured and unable to work for one month.  Moses v. Municipality of Polle, 2 FSM Intrm. 270, 271 (Truk 1986).

A municipality which employs untrained persons as police officers, fails to train them and authorizes their use of excessive force and summary punishment, will be held responsible for their actions in stripping a prisoner, handcuffing his leg to a table and his arms behind his back, then kicking and abusing him. Alaphen v. Municipality of Moen, 2 FSM Intrm. 279, 280 (Truk 1986).

There is no established market for legal services in Kosrae which could be used to determine a reasonable hourly rate for attorneys in civil rights cases.Tolenoa v. Alokoa, 2 FSM Intrm. 247, 254 (Kos. 1986).  [Editor's note: reversed by Tolenoa v. Kosrae, 3 FSM Intrm. 147 (App. 1987).]

Despite the fact that some of the arguments made by plaintiff in successful civil rights litigation were rejected by the court, time devoted by counsel to these issues may be included in the civil rights legislation attorney's fee award to the plaintiff where all of the plaintiff's claims in the case involved a common core of related legal theories.  Tolenoa v. Alokoa, 2 FSM Intrm. 247, 259 (Kos. 1986).

Where an action is brought pursuant to 11 FSMC 701(3), allowing civil liability against any person who deprives another of his constitutional rights, the court may award reasonable attorney's fees to the prevailing party based on the customary fee in the locality in which the case is tried.  Tolenoa v. Kosrae, 3 FSM Intrm. 167, 173 (App. 1987).

In an action brought under 11 FSMC 701(1) forbidding any person from depriving another of his civil rights, where it is shown that the attorney for the prevailing party customarily charges attorney's fees of $100.00 per hour for legal services in the community in which the case is brought, and when this is at or near the hourly fee rate charged by other attorneys in the locality, the court may award the prevailing party an attorney's fee based upon the $100.00 hourly rate.  Tolenoa v. Kosrae, 3 FSM Intrm. 167, 173 (App. 1987).

A person's constitutional right to due process of law, and his right to be free from cruel and unusual punishment is violated when an officer instead of protecting the person from attack, threw him to the ground, and beat the person in the jail.  Meitou v. Uwera, 5 FSM Intrm. 139, 144 (Chk. S. Ct. Tr. 1991).

An injured victim is entitled to recover for mental anguish, including humiliation, resulting from unlawful conduct in violation of the victim's civil rights. Meitou v. Uwera, 5 FSM Intrm. 139, 146 (Chk. S. Ct. Tr. 1991).

Constitutional provisions applicable to a prisoner may vary depending on his status.  A pre-trial detainee has a stronger right to liberty, which right is protected by the Due Process Clause, FSM Const. art. IV, 3.  A convicted prisoner's claims upon liberty have been diminished through due process so that person must rely primarily on article IV, section 8 which protects him from cruel and unusual punishment. Plais v. Panuelo, 5 FSM Intrm. 179, 190 (Pon. 1991).

In a case where a convicted prisoner, who is also a pre-trial detainee, asserts civil rights claims arising out of ill-treatment after arrest, denial of access to family is a due process claim, and physical abuse involves due process as well as cruel and unusual punishment claims.  Plais v. Panuelo, 5 FSM Intrm. 179, 190 (Pon. 1991).

In providing for civil liability under 11 FSMC 701(3), Congress intended that the word person would include governmental bodies.  Plais v. Panuelo, 5 FSM Intrm. 179, 204-05 (Pon. 1991).

The doctrine of respondeat superior is not to be used to determine whether a governmental entity is liable under 11 FSMC 701(3) for civil rights violations inflicted by government employees.  The government entity may be held liable under 11 FSMC 701(3) when violations are caused by officials who are responsible for final policy making with respect to the of action chosen from various alternatives. Plais v. Panuelo, 5 FSM Intrm. 179, 205-206 (Pon. 1991).

Where a prisoner is physically abused by an official with final policy-making authority, these acts are governmental and a statement of state policy concerning the prisoner.  Plais v. Panuelo, 5 FSM Intrm. 179, 207 (Pon. 1991).

Because the FSM statute is based upon the United States model, the FSM Supreme Court should look to United States' court decisions under 42 U.S.C. 1983 for assistance in determining the liability of a governmental body under 11 FSMC 701(3).  Plais v. Panuelo, 5 FSM Intrm. 179, 204 (Pon. 1991).

Refusing to permit the public defender or the prisoner's mother to see him are violations of civil rights guaranteed under 12 FSMC 218(1) and (2) and constitute official actions for which a state must be held responsible under 11 FSMC 701(3).  Plais v. Panuelo, 5 FSM Intrm. 179, 207 (Pon. 1991).

Confining a prisoner in dangerously unsanitary conditions, which represent a broader government-wide policy of deliberate indifference to the dignity and well-being of prisoners, is a failure to provide civilized treatment or punishment, in violation of prisoners' protection against cruel and unusual punishment, and renders the state liable under 11 FSMC 701(3). Plais v. Panuelo, 5 FSM Intrm. 179, 208 (Pon. 1991).

The government does not pay twice when it violates someone's civil rights and then is forced to pay attorney's fees.  It pays only once - as a violator of civil rights.  Its role as a provider of public services is distinct from its role as a defendant in a civil case.  Thus an award of costs and reasonable attorney's fees should be made to a publicly funded legal services organization whose client prevailed in a civil rights action.  Plais v. Panuelo, 5 FSM Intrm. 319, 321 (Pon. 1992).

11 FSMC 701(3) is comprehensive and contains no suggestion that publicly funded legal services are outside the clause or should be treated differently than other legal services.  Plais v. Panuelo, 5 FSM Intrm. 319, 320-21 (Pon. 1992).

The FSM Supreme Court is immune from an award of damages, pursuant to 11 FSMC 701(3), arising from the performance by the Chief Justice of his constitutionally granted rule-making powers.  Berman v. FSM Supreme Court (II), 5 FSM Intrm. 371, 374 (Pon. 1992).

Where a plaintiff has alleged his due process rights were violated but it is proven otherwise, the plaintiff cannot recover under the civil rights statute.Nena v. Kosrae, 5 FSM Intrm. 417, 425 (Kos. S. Ct. Tr. 1990).

A corporation is a person who may recover damages for violation of its civil rights when it is deprived of its property interests, such as contract rights, without due process of law. Ponape Constr. Co. v. Pohnpei, 6 FSM Intrm. 114, 127-28 (Pon. 1993).

The FSM civil rights statute has no retroactive effect.  There is no liability under the FSM civil rights statute for events that took place prior to the effective date of the statute. Alep v. United States, 6 FSM Intrm. 214, 219 (Chk. 1993).
 
      702.  Right to full and equal enjoyment of public accommodations.

     (1)  Definitions.

     (a)  "Equal access".  All persons shall be entitled, without discrimination on the grounds of race, color, religion, language, place of origin, or gender, to the full and equal enjoyment of goods, services, facilities, privileges, advantages, and accommodations of:

     (i)  any department, agency, or institution of, or acting on behalf of, the Federated States of Micronesia; or

     (ii)  any public accommodation which affects commerce, as defined in this section.

     (b)  "Public accommodation' means any establishment which provides lodging to transient guests for charge, or any establishment which is engaged in selling food, beverage, or gasoline to the public, or any place of recreation, amusement, exhibition, sightseeing, or entertainment which is open to members of the public, or any facility for the public transportation of persons or goods.

     (c)  A public accommodation affects commerce if:

     (i)  it is a place of lodging;

     (ii)  it serves or offers to serve interstate travelers; or

     (iii)  a substantial portion of the goods or entertainment it sells or provides has moved in commerce.

     (d)  "Commerce" means travel, trade, traffic, transportation, communication, and all other forms of commerce among the several States, or between any State and any foreign country or other area outside the Federated States of Micronesia, or between points in the same State but through any area outside the State.

     (2)  This section shall not apply to any private club or other establishment not in fact, open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (1) of this section.

     (3)  A person commits a crime if he or she:

     (a)  withholds, denies, deprives, or attempts to withhold, deny, or deprive any person of any right or privilege protected under this section;
 
     (b)  intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce any person for the purpose of interfering with any right or privilege protected under this section; or

     (c)  punishes or attempts to punish any person for exercising or attempting to exercise any right or privilege protected under this section.

     (4)  A person convicted under this section shall be imprisoned for not more than five years.

     (5)  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 for redress, without regard to whether a criminal case has been brought or conviction obtained.  In an action brought under this subsection, the court may award costs and reasonable attorney's fees to the prevailing party.

Source:  PL 11-72 78.
                                                                                                                                                                                                                                                                                                           
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