THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Davis v.  Kutta ,
7 FSM Intrm. 536 (Chk. 1996)

[7 FSM Intrm. 536]

MENRY DAVIS,
Plaintiff,

vs.

JIM KUTTA, HALVERSON NIMEISA, RESAUO
MARTIN, ERADIO WILLIAM, FRANCIS RUBEN,
JOHNSON SILANDER and the STATE OF CHUUK,
Defendants.

CIVIL ACTION NO. 1992-1039

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Martin Yinug
Associate Justice

Trial:  April 6-8, 1995
Decided:  August 6, 1996

APPEARANCES:
For the Plaintiff:            R. Barrie Michelsen, Esq.
                         John Hollinrake, Esq.
                         Law Offices of R. Barrie Michelsen
                         P.O. Box 1450
                         Kolonia, Pohnpei FM 96941

[7 FSM Intrm. 537]

For the Defendants:     Wesley Simina, Esq.
                         Attorney General
                         Office of the Chuuk Attorney General
                         P.O. Box 189
                         Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Civil Procedure ) Pleadings
     Issues not specifically raised in pleading may be tried by parties' implied consent.  Davis v. Kutta, 7 FSM Intrm. 536, 543 (Chk. 1996).

Torts ) Battery
     A person is liable to another for battery if he acts intending to cause harmful contact with a third person or an imminent apprehension of such contact, and a harmful contact indirectly results.  Davis v. Kutta, 7 FSM Intrm. 536, 544 (Chk. 1996).

Torts ) Battery
     An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against the unprivileged harmful or offensive contact or other bodily harm which he reasonably believes another is about to inflict intentionally upon him, but the means used must be proportionate to the danger threatened.  Davis v. Kutta, 7 FSM Intrm. 536, 544-45 (Chk. 1996).

Torts ) Battery
     Even though police may be privileged to use force to prevent the commission of a crime, the battery of an innocent bystander is not privileged.  Davis v. Kutta, 7 FSM Intrm. 536, 545 (Chk. 1996).

Torts ) Battery
     Civil liability for a battery is not limited to the direct perpetrator of the act charged, but extends to any person who by any means encourages or incites the battery, or aids and abets it.  Davis v. Kutta, 7 FSM Intrm. 536, 545 (Chk. 1996).

Torts ) Battery
     Where a number of people fired weapons and others encouraged them to fire or surrendered their weapon so another could fire it, all are jointly and severally liable for battery on an innocent bystander as the person who fired the bullet that struck her.  Davis v. Kutta, 7 FSM Intrm. 536, 545 (Chk. 1996).

Torts ) Governmental Liability; Torts ) Respondeat Superior
     The state, not the chief of police, is vicariously liable under the doctrine of respondeat superior for the torts of its police officers committed in the course and scope of their employment when force is employed in the use of even apparent official authority.  Davis v. Kutta, 7 FSM Intrm. 536, 545-46 (Chk. 1996).
 
Torts ) Damages
     Punitive damages will not be awarded where the plaintiff has not claimed and proved that a defendant acted with actual malice or deliberate violence.  Davis v. Kutta, 7 FSM Intrm. 536, 546 (Chk. 1996).

[7 FSM Intrm. 538]

Torts ) Negligence
     Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances.  Davis v. Kutta, 7 FSM Intrm. 536, 546 (Chk. 1996).

Torts ) Governmental Liability; Torts ) Negligence
     The state is liable for injuries proximately caused by the employment of untrained or poorly trained police officers, and for the failure to adequately train them, and the chief of police is liable for any injury resulting from breach of duties connected with his office.  Davis v. Kutta, 7 FSM Intrm. 536, 546 (Chk. 1996).

Torts ) Duty of Care
     To license police officers to carry firearms without adequate training breaches the duty of care of the state and the chief of police because the duty of care is heightened when the instrumentality given the police is a deadly one.  Davis v. Kutta, 7 FSM Intrm. 536, 547 (Chk. 1996).

Search and Seizure
     Apprehension of a person suspected of committing a crime by use of deadly force is a seizure, but the shooting of a bystander, who is not a suspect, by the police is not.  Davis v. Kutta, 7 FSM Intrm. 536, 547 (Chk. 1996).

Constitutional Law ) Equal Protection
     Because the equal protection clause is designed to guarantee that similarly situated individuals are not treated differently due to some sort of invidious discrimination a victim of a stray police bullet who cannot show any evidence of discrimination has no equal protection claim.  Davis v. Kutta, 7 FSM Intrm. 536, 547 (Chk. 1996).

Constitutional Law ) Due Process
     Physical abuse committed by police officers may violate a prisoner's right to due process of law.  Persons who are not suspects have no less protection from physical abuse and injury at the hands of the police.  The right to due process of law is violated when a police officer batters a person instead of protecting her from harm because persons who are not in police custody have a due process interest in personal security that may be violated by the acts of police officers.  Davis v. Kutta, 7 FSM Intrm. 536, 547-48 (Chk. 1996).

Civil Rights
     Government entities are included in the definition of the word "person" as used in the statute governing civil liability of persons for the violation of another's civil rights.  Davis v. Kutta, 7 FSM Intrm. 536, 548 (Chk. 1996).

Constitutional Law ) Due Process; Torts ) Battery
     The commission of the intentional tort of battery by police officers in the scope of their employment is a denial of due process of law.  Davis v. Kutta, 7 FSM Intrm. 536, 548 (Chk. 1996).

Constitutional Law ) Due Process
     The failure of the state to adequately train police officers, and the excessive use of force used by officers is a violation of a victim's right to due process of law.  Davis v. Kutta, 7 FSM Intrm. 536, 548 (Chk. 1996).

Civil Rights; Constitutional Law ) Due Process
     An official state practice of allowing untrained and unqualified police officers to use deadly force may be shown from the chief of police's testimony that convicted felons were hired although

[7 FSM Intrm. 539]

regulations prohibited it and that requalification on firearms had been waived for at least three years although regulations required requalification when it is within his power to allow variation from written regulation, and from the lack of any internal discipline as the result of improper use of deadly force.  If, as a result of this policy a person suffers serious bodily injury, it is a violation of her right to due process of law.  Davis v. Kutta, 7 FSM Intrm. 536, 548 (Chk. 1996).

Torts ) Damages
     Compensatory damages for personal injury may include medical expanses incurred, lost wages, impairment of future ability to earn, and other specific costs that accrued as a result of the injury.  Davis v. Kutta, 7 FSM Intrm. 536, 548 (Chk. 1996).

Torts ) Damages
     Compensatory damages for personal injury also include pain and suffering, past as well as the reasonable value of future pain and suffering.  An award for pain and suffering is not reduced merely because the injury took place in Chuuk.  The court must use its discretion in awarding it.  Davis v. Kutta, 7 FSM Intrm. 536, 549 (Chk. 1996).

Torts ) Damages
     A person injured by the intentional tort of another is entitled to an award for pain and suffering, including mental anguish.  Davis v. Kutta, 7 FSM Intrm. 536, 549 (Chk. 1996).

Civil Rights; Torts ) Damages
     Compensatory damages awarded a party for the violation of civil rights includes reasonable attorney fees and costs of suit.  Davis v. Kutta, 7 FSM Intrm. 536, 549 (Chk. 1996).

*    *    *    *

COURT'S OPINION
MARTIN YINUG, Associate Justice:
 
INTRODUCTION
     This is a case for personal injury and violation of civil rights sustained by the plaintiff, Menry Davis, while standing outside the house of her uncle, Sikpert Louis, in Wichap, Weno, Chuuk State, on the evening of April 17, 1992.  The plaintiff contends that she was struck and injured by a stray bullet when police officers, dispatched to make an arrest in Wichap, fired their police-issue revolvers into a crowd.

     The trial was held on March 6 to 8, 1995.  The plaintiff testified on her own behalf, and also called as a witness George Ruiz, M.D.  Defendant police officer Jim Kutta and Chief of Police Eradio William testified for the defendants.  The Court admitted ten exhibits, including the deposition transcripts of five defendants. At the conclusion of trial, the parties submitted post-trial memoranda.  The Court makes Findings of Fact and Conclusions of Law, pursuant to Civil Procedure Rule 52(a).

FINDINGS OF FACT
I.  Incident at Wichap
     By all accounts, the incident that resulted in the shooting injuries to Menry Davis and Jimmy

[7 FSM Intrm. 540]

Louis and the death of Jeffrey Louis began with the complaint of an off-duty police officer, Hersin Fichan, the evening of Good Friday, April 17, 1992.  Fichan was attacked allegedly by Jerry Louis and other members of the Louis clan in Wichap, Weno Island.  Fichan's brother-in-law, defendant Johnson Silander ) also a police officer ) called the Chuuk State police to ask for assistance.  Fichan may have been injured in the first scuffle, and his truck was also damaged.

     Three police vehicles bearing six on-duty police officers responded to Silander's call:  defendants Resauo Martin, Jim Kutta, Halverson Nimeisa, and Francis Ruben, and two other officers not named as parties.  At least three of the responding officers ) Kutta, Martin, Nimeisa ) had police-issue firearms.  Police supervisor Ruben told Silander to put on his uniform.  Fichan put on his uniform, too.  The officers went to Sikpert Louis's house to locate the persons Fichan said attacked him.

     Most of the officers left Fichan's residence in two vehicles and proceeded immediately to the house of Sikpert Louis.  The officers in the third vehicle waited while Silander and Fichan put on their uniforms, and drove to Sikpert's house moments later.  Three or four officers went on the Louis property on the downhill side of the road to look for Jerry Louis.  They went to a wooden house next to a water tank.  Menry Davis, a niece of Sikpert Louis, was standing just outside her uncle's house, talking with two girls.  The Court finds that while Menry was in a position to observe most of what occurred, she did not participate in taunting, threatening, or throwing rocks at the police officers.  Menry was not suspected in the incident involving Fichan.  She was, literally, an innocent bystander.

     Menry testified that the officers were angry and loudly demanded to know the whereabouts of the boys who attacked Fichan.  The people living at Sikpert's area were observing the custom of mechin, grieving for Justin Louis, who had recently died.  The police officers were asked to leave.  A woman was crying because of the officers' intrusion in violation of the custom.  The officers refused to leave and became more aggressive in their warrantless search, kicking the door to one of the houses.  Some of the boys there began to shout profanities.  Kisanouri Kaseka, who was not wanted by the police, came to get a drink from the water tank.  The police determined that he was drunk and arrested him.  One officer took Kisanouri back to one of the police vehicles, while the others continued to search.

     Jerry Louis arrived at the scene in a pick-up truck.  Jerry and others in the truck freed Kisanouri from the police, and shouted for those in the area to come to their assistance and fight the police officers.  The officers then near the houses began to retreat to the road.  The boys left the wooden house, gathered some stones and began to throw them at the officers.  Other people gathered on the uphill side of the road near two churches.  The officers claimed that those persons, coming from Good Friday services, began to throw stones, too.

     At that time, Jerry Louis and the others had located officer Fichan among the police gathered on the road, and began to fight with him.  The other officers ran down the road to where two of their vehicles were parked.  The crowd continued to throw rocks at the officers.  But only two officers were treated for injuries from thrown rocks.  Officer Nimeisa testified at trial that he was struck by rocks, but in a prior written report, Nimeisa said that he managed to fend off the rocks by swinging his flashlight.

     By then, Fichan was on the ground, grappling with an assailant, possibly Jerry Louis, and some of the officers thought he was trying to stab Fichan.  Officer Kutta testified that he heard a single gunshot, a revolver, coming from the house.  The Court does not find this testimony credible, based on Kutta's demeanor when he testified on the point.  Officer Kutta then drew his own weapon and fired three rounds.  Kutta said he fired into the rock-throwing crowds, and also at the person trying to stab Fichan.  Officer Ruben said at this point, "They are shooting at us." Fichan was then able to roll away

[7 FSM Intrm. 541]

from his attackers and sprint toward the other officers.

     Menry testified that she saw muzzle flashes and heard gunshots in two distinct volleys of shots.  The Court finds that the three shots fired by Officer Kutta was the first volley, and the second volley was the rounds fired by Officers Nimeisa and Johnson, and possibly Officer Ruben.  This conclusion is based on the following evidence:  (1) Kutta's deposition testimony that he decided to fire the shots, and that he fired three shots into the crowd; (2) Nimeisa's written statement, referred to in deposition, that he did not begin shooting until he heard shots being fired; (3) Johnson's deposition testimony that he heard gunshots, asked Officer Martin to fire his weapon, and when Martin did not fire the weapon, that Johnson took it from him and fired five rounds; (4) Menry's testimony that after the first volley she saw Jerry Louis walking away from Fichan; (5) the testimony of the officers that they fired either to warn or simply at the people throwing rocks; and (6) Johnson's deposition testimony that after he fired, Officer Ruben took the gun from him and fired.  In so finding, the Court does not suggest a disciplined order of fire.  The panic-stricken police fired in every direction.

     Menry was struck in the abdomen by a single bullet at the beginning of the second volley.  She felt a burning sensation in her stomach, and told the girls she was speaking with that she had been hit.  The girls helped Menry into her uncle's house where she was comforted by her uncle's family until she was transported to the hospital.  She was told while waiting that Jeffrey Louis had died, and she thought that she would die, too.  The officers then fled Wichap, leaving one person dying, and two persons seriously injured.

     The Court infers that the bullet recovered from Dr. Oscar Davide by the detective who investigated the shooting was fired from one of the police revolvers. No credible evidence was adduced that anyone other than a police officer fired a weapon at Wichap that night.

II.  Menry Davis's Injuries
     Menry was taken to the Chuuk Hospital where she underwent emergency surgery for the gunshot wound.  In the opinion of George Ruiz, M.D., Menry would have died without immediate surgery, and had a fifty to sixty percent chance for survival when it was done.  Menry was barely conscious when she was brought into the examination room and lost consciousness as she was prepared for surgery.  She suffered severe pain and had blood coming from her mouth and nose.  She thought again she might die.

     Menry was treated by Dr. Ruiz and Oscar Davide, M.D.  Based on her low vital signs, Menry was in clear danger of death from internal bleeding and infection when she was brought to the hospital.  She was pale, had an extended abdomen, and suffered from severe pain.  The doctors found the entry wound on Menry's left side just below the tenth rib.  The bullet penetrated the abdominal cavity, perforated the stomach, and lacerated the pancreas and right kidney.  The bullet was recovered from the right side of Menry's abdomen.  Menry underwent extensive surgery.  After her bleeding was controlled, her abdomen was cleaned of blood, and the surgeons sutured the stomach and closed lacerations to the kidney and pancreas.  Due to the damage to the stomach, portions of Menry's small intestines were excluded, and a new opening was made elsewhere.  She was left with a different intestinal tract.  Menry received six units of whole blood during the five-hour surgery.

     Menry suffered severe pain over the next day and a half.  She remembered awakening screaming because of the pain.  Menry complained frequently of pain, and moaned and cried when the pain was severe.  She was given Demerol and morphine, as frequently as every three hours.  Menry also continued to bleed from the surgical opening and the bullet wound.  Her urine and other discharges were bloody.  Menry was evacuated from Chuuk to Guam by stretcher on a military transport on the

[7 FSM Intrm. 542]

morning of April 19, 1992.  While transported to the Guam Memorial Hospital by ambulance, Menry again thought that she would not survive.

     Menry was hospitalized in Guam for five days.  She remained in bed with intravenous feeding and drain tubes, and continued to receive medication and pain killers.  When Menry was released she spent another three and a half weeks on Guam residing at the Seventh Day Adventist mission.  Her pain gradually lessened.  She returned to Chuuk after a month.  Menry complained of pain when she was examined by Dr. Ruiz on her return.

     Dr. Ruiz believes that post-operation complications, such as bleeding and infection, are possible for up to five years.  Other complications, from the rebuilt intestinal tract, possible for up to ten years, range from discomfort and abdominal distension to vomiting, toxic build-up, and stenosis.  Future corrective surgery, not possible on Chuuk, is also a possibility.  Menry, who worked as a secretary before the incident, did not go back to work until August of 1992.  She lost considerable weight, and continues to complain of eating problems.  Menry cannot do physical work, and she needs assistance to clean house.  Menry still has feelings that she might die at any time.

III.  Police Training
     Chuuk State Police training was the subject of inquiry at deposition and trial. All newly hired officers are required to undergo training, including training in firearms and crowd control.  In the past, portions of police training were conducted by FBI officers and other outsiders.  More recently, training has been done in-house by senior members of the Chuuk State Police.

     All officers are required to take a course and pass a test on firearms.  Once an officer passes the test, he is authorized to carry a police-issue firearm on duty. Although the FBI conducted some firearms training in the past, three of the officers who fired weapons in Wichap that night testified that they were trained in-house.  Chief of Police Eradio William testified that it was possible no FBI-sponsored weapons training was held in the three years before the incident, a period in which all four officers who fired their weapons at Wichap joined the police force.  At most, the officers received two weeks of firearms training, while actual weapons practice was a single day at the police firing range on Pisiwi. Although some recruits had additional, minimal actual practice on Guam firing ranges to qualify for merchant patrol or as night watchmen, the Court does not find this training to approximate FBI sponsored training.

     Firearms training was supposed to include weapon safety, including when to fire and when to refrain from firing.  Almost to a man, the officers testified that the only time they were allowed to fire their weapons was when there was immediate danger to life, their own or someone else's.  No officer could recall whether they received any training that allowed them to fire warning shots.  While the Chuuk State Police may have had a training manual or written guidelines on the use of firearms, Chief of Police William could not say whether those written directions were given to new officers during recent training.  All officers are required to requalify to carry firearms yearly, but requalification had not been done for several years before this incident because the police did not have enough ammunition. Based on his demeanor when testifying, the Court finds much of Chief of Police William's testimony, such as training records of the defendant officers, to be very evasive.

     There was less testimony regarding crowd control.  Officer Silander said he received training in crowd control but could not recall what it was.  Officer Martin said he received crowd control training, but his interrogator asked no further questions on the subject.  It does not appear that Kutta and Nimeisa were even asked if they received any training on crowd control.

[7 FSM Intrm. 543]

IV.  Post-Incident Investigation
     A police report was made by Detective Furacy Bonochou, who gathered the physical evidence.  Written statements of the officers were referred to in deposition, but these reports were not attached to the deposition transcripts nor offered into evidence at trial.  Chief of Police William reviewed the report and decided, after conferring with his staff, against referring the matter to the Attorney General's office for criminal prosecution.  His reasons for not referring the matter to the Attorney General's office were:  (1) the officers fired to protect Fichan; (2) the police fired in response to a gun fired at them; and (3) people threw rocks at the police.

     None of the officers involved in the incident at Wichap were charged with any crime.  None of the officers involved in the incident at Wichap were subjected to internal, police department discipline.  All of the officers were back on duty the next day.  Some of the same officers were allowed to bear firearms on patrol. Chief of Police William testified that no action was taken against any officer because his investigation determined that the officers did not shoot after Fichan extricated himself from the physical struggle.  The Court finds otherwise.

PLEADINGS
     The Plaintiff filed a Complaint on September 3, 1992.  The original defendants ) officers Kutta, Nimeisa and Martin, police chief William, and the State of Chuuk ) filed an answer on October 11, 1992.  The plaintiff was granted leave on August 16, 1993, to name and serve as defendants, Officers Ruben and Silander.  The plaintiff did not file an amended complaint.  She added the two other officers to the original complaint and included them in the allegations of paragraph 3, identifying them as being among the "defendant officers."  The new defendants filed an answer on February 3, 1994.
 
     All the pleadings are wanting in several critical aspects. Causes of action in the Complaint are not separated.  The Court therefore relies in part on Menry's post-trial memorandum to clarify her claim for relief.  In that memorandum, plaintiff claims a battery and deprivation of her civil rights.  Although the post-trial memorandum asserts a claim for violation of the Chuuk State Constitution, there is no claim for a violation of that Constitution in the Complaint.  The Court therefore rules on the FSM Constitution claim only.  The Court also discerns a claim for negligence against Chuuk State and the Chief of Police, although the claim is not clear in the post-trial memorandum.

     The Answers, which consist solely of affirmations or denials of paragraphs in the Complaint, are no better than the Complaint at clarifying the issues.  The Answers merely controvert the plaintiff's claims.  In neither Answer did any defendant raise a defense other than a denial of plaintiff's prima facie case.  The defendants did not raise a single affirmative defense.

     Other than a concededly moot motion to strike the first Answer, the parties filed no other pretrial motions to narrow the dispute.  At the pretrial conference, the parties stipulated to some evidence, and declined to consolidate this case with Louis v. Kutta, Civil Action No. 1994-1023.  There was no written pre-trial order. A certain amount of extemporaneous narrowing of issues occurred at trial.  In opening, defendants asserted that their conduct was lawful.  Both sides submitted evidence at trial and argued in closing on the defense of privileged contact to the claimed battery.  The issue of privileged contact, not raised in the pleadings, was raised and tried by the implied consent of the parties.  The issue of whether the State is liable for civil rights violations for the official practice of the State in providing inadequate police firearms training, although not specifically raised in the pleadings, was tried by the parties' implied consent.  FSM Civ. R. 15(b).

     After the plaintiff's opening statement, Wesley Simina, counsel for the defendants was asked

[7 FSM Intrm. 544]

to address any actual or potential conflicts of interest by his representation of all the defendants.  In his view, the officers' actions were justified and any conflict was minimal.  After lunch recess and a viewing of the site, Simina represented to the Court that all the defendants then present waived any conflict.  Chief of Police William's waiver of any conflict was represented later in the trial.  No representation was made on behalf of officer Resauo Martin, who did not appear for trial.

CONCLUSIONS OF LAW
I.  Tort Claims
     Plaintiff's claims for battery against the police officers and negligence by the Chief of Police and the State of Chuuk lie in tort and are governed by the substantive law of the State of Chuuk.  Nethon v. Mobil Oil Micronesia, Inc., 6 FSM Intrm. 451, 455 (Chk. 1994).
 
A.  Battery by the Defendant Police Officers
     1.  The Tort of Battery
     The plaintiff claims that she was battered by a stray bullet fired by one of the police officers.  This is one of several different forms of battery.  A person is liable to another for battery if he acts intending to cause harmful contact with a third person or an imminent apprehension of such contact, and a harmful contact indirectly results.  Meitou v. Uwera, 5 FSM Intrm. 139, 143 (Chk. St. Ct. Tr. 1991) (quoting Restatement (Second) of Torts 13 (1965)).  Menry was the victim of a battery by a bullet shot by one of the officers.  The officers fired intending either to hit the crowd, or frighten them with warning shots.  Although they did not intend to shoot Menry, she was struck by one of the bullets fired by the police officers.

     2.  The Second Volley Was Not Privileged
     The defendant officers claim that the battery was privileged as either self-defense or defense of a third party and no liability may attach.  If Menry were injured in the first volley, the defendant officers' argument might have some merit. Kutta testified that he fired because an assailant was about to stab Fichan.  But the defendants conceded that Menry was not injured in the first volley.

     Instead, Menry was injured in the second volley.  By this time, the defendant officers were no longer acting in defense of a third person, because Fichan was by then returning to the other officers, and Jerry Louis, his alleged assailant, was walking away from him.  The police officers claimed they acted in self-defense. The crowd was throwing rocks at them and some of the officers claimed that members of the crowd brandished sticks and knives.  But the crowd was also some distance from the officers at the time of the second volley.  Officer Silander put the crowd as the distance of the courtroom doors from the witness stand, about forty feet.  Officer Kutta said at one point the crowd was fifty feet away.

     The Chuuk State Supreme Court has adopted Restatement sections as the common law of Chuuk, except where it is contrary to Chuukese traditions. Nethon, 6 FSM Intrm. at 455.  Based on the testimony that the officers were presented with a threat of thrown rocks, the Court refers to the limited privilege of 63 of the Second Restatement of Torts, which provides in part:  "An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against the unprivileged harmful or offensive contact or other bodily harm which he reasonably believes another is about to inflict intentionally upon him."  Restatement (Second) of Torts 63(1) (1965).  The officers may have been privileged to use reasonable force to respond to the rocks

[7 FSM Intrm. 545]

thrown by the crowd, but they were not privileged in the use of deadly force. Although there was testimony that members of the crowd brandished sticks and knives, they were at least forty to fifty feet away from the police officers at the time of the second volley.  Knives and sticks may be deadly weapons if used in close quarters but they are not a serious threat from fifty feet.

     The comments provide a fuller explanation.

Since the means used must be proportionate to the danger threatened, it is obvious that one is not privileged to protect one's self even from a blow which is likely to cause some fairly substantial injury by means which are intended or are likely to cause death or serious bodily harm.

Id. 63 cmt. j (1965).  The Chief of Police acknowledged this when he testified that the officers would not be justified to continue shooting after Officer Fichan extricated himself from trouble.  The officers were not privileged to respond to the threat of rock-throwing with deadly force.  The Court therefore concludes that their battery upon the plaintiff was not privileged.

     Although it is not clear, the defendants may have claimed that their actions were privileged for the purpose of preventing commission of a crime.  Id. 140-144.  But a close reading of the sections indicates that the officers' battery of Menry was not privileged.  The Court has found that Menry, while present, did not participate in the affray.  The Court has heard no credible evidence that any officer believed Menry was involved in throwing rocks, taunting or threatening the police officers.  She was merely an unlucky and innocent bystander.  The privilege to prevent the commission of a crime does not apply to Menry.
 
     3.  Liability
     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).  It extends to any person who by any means encourages or incites the battery, or aids and abets it. Id.  Each officer who encouraged any other officer to fire his gun, either by direct command, by statements indicating an imminent threat of harm to the other officers, (i.e., "they're shooting at us"), by providing the means for another officer to fire (i.e., by surrendering a weapon so that an unarmed officer may fire), or by firing his own weapon, is as liable for the battery on Menry as the person who fired the bullet that struck her.  Id.; see Grandstaff v. City of Borger, 767 F.2d 161, 168 (5th Cir. 1985).

     The officers cannot argue that the evidence does not demonstrate that the bullet came from a particular officer's weapon.  As the Fifth United States Circuit Court of Appeal said:

They may as well argue that no one on a firing squad is responsible for the victim's death unless we know whose bullet first struck the heart.  The firestorm [of bullets] . . . was in all respects a joint operation . . . .  Each participant was as much at fault as the others, and all are liable for the foreseeable consequences.  Each officer who fired his gun encouraged the others to do the same.

Id.  The liability of the participating officers ) Kutta, Nimeisa, Martin, Ruben, and Silander ) is joint and several.  74 Am. Jur. 2d Torts 66 (1974).

     The State of Chuuk is vicariously liable for the tort committed by the police officers at Wichap under the doctrine of respondeat superior.  Suka v. Truk, 4 FSM Intrm. 123, 126 (Truk S. Ct. Tr. 1989).  Although the State is not automatically liable for all the torts of its agents and employees, it

[7 FSM Intrm. 546]

is liable for those torts committed in the course and scope of employment.  Id. The evidence adduced at trial indicates that the officers were acting within the course and scope of their employment.  They were all on duty, even Officer Silander, who was told at the scene to report for duty by his supervisor.  The officers acted in response to a call for police assistance, and were, in the words of their counsel, "simply doing routine investigation and arrests."  These actions, which led to the shooting, were in the course and scope of the officers' 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, 5 FSM Intrm. 179, 201 (Pon. 1991).  The State is therefore vicariously liable to the plaintiff for the battery committed by the officers.

     Chief of Police William is not liable for the torts of the officers in his charge under the doctrine of respondeat superior.  That doctrine allows for the vicarious liability of the employer only.  See 53 Am. Jur. 2d Master and Servant 411, at 420 (1970).  The State of Chuuk employed the defendant officers, not William.
 
     4.  Punitive Damages
     In her Complaint, the plaintiff requested compensatory and punitive damages amounting to $1 million.  But in her post-trial memorandum she requested only $300,000 for past, present, and future injuries and expenses.  She may have waived her claim for punitive damages.  This appears to be the only claim, i.e., an intentional tort, by which the plaintiff could claim punitive damages.  In order to be awarded punitive damages, a plaintiff must claim and prove that a defendant acted with "actual malice" or "deliberate violence."  Elwise v. Bonneville Constr. Co., 6 FSM Intrm. 570, 572 (Pon. 1994); Meitou, 5 FSM Intrm. at 146.  Plaintiff's complaint contains no such allegations.  The violence of the police officers was deliberate, but it was not directed at the plaintiff.  Given the waiver and infirmities of the claim and proof, the Court declines to award punitive damages.

B.  Negligence by the Chief of Police and Chuuk State
     The plaintiff seeks to recover from the State of Chuuk and Eradio William, the Chief of Police, in negligence.  She alleges that the State and William were negligent in several regards: in failing to institute training on police methods and firearms; in having a policy of allowing armed, untrained officers to assume duties as police officers; in the failure to assure that police officers are competent to carry out assigned duties; and in any actual training of the police officers.

     Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances.  Epiti v. Chuuk, 5 FSM Intrm. 162, 166 (Chk. S. Ct. Tr. 1991). The State is liable for injuries proximately caused by the employment of untrained or poorly trained police officers, and for the failure to adequately train them.  Alaphen v. Municipality of Moen, 2 FSM Intrm. 279, 280 (Truk 1986); Moses v. Municipality of Polle, 2 FSM Intrm. 270, 271 (Truk 1986).

     Chief of Police William is liable for any injury resulting from breach of duties connected with his office.  70 Am. Jur. 2d Sheriffs, Police and Constables 90 (1987).  He admitted that he is responsible for the ongoing training of police officers and for ensuring that they are competent to carry out their assigned duties.  Answer para. 10 (admits and denies para. 19 of the Complaint).

     The Court concludes that the Chief of Police and the State were negligent in training the police officers, particularly in firearms training.  The State and Chief of Police were negligent by allowing police officers to carry firearms on duty after a minimal training period, with almost non-existent actual firearms training, and with no enforced requirement of periodic requalification to bear firearms on duty.  The plaintiff's injuries proximately resulted from the breach of this duty.

[7 FSM Intrm. 547]

     A duty of care is heightened when the instrumentality given to the officers is a deadly one.  To license police officers to carry firearms without adequate training on their proper use breaches that duty of care.  The State owes all its citizens, residents, and visitors, a duty of care that the police will keep the peace, and not to inflict violence.  The Chief of Police owes a duty of care to the public at large that the officers under his supervision are trained and understand their duties. This duty of care, owed to Menry, was breached, and resulted in her injuries at the hands of a group of panic-stricken and unrestrained police officers.  The State and Chief of Police are liable to Menry for their negligence.

II.  Civil Rights Claims
     Title 11 F.S.M.C. 701(3) creates a cause of action for any person whose civil rights are violated.  Plaintiff may recover damages if she can demonstrate a violation of her constitutional rights by the police officers or by the Chief of Police and the State.  In her Complaint, the plaintiff alleged violation of her rights under the FSM Constitution only.

A.  Unreasonable Search and Seizure
     Plaintiff alleges that the police officers shooting was an intentional attempt to violate her constitutional rights under Article IV, 5, to be free from unreasonable search and seizure.  While the shooting constitutes the tort of battery, it is neither a search nor a seizure by agents of the state of her person.  Apprehension of a person suspected of committing a crime by use of deadly force is a seizure. Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 1699, 85 L. Ed. 2d 1, 7 (1985).  If plaintiff had been shot in the process of being apprehended by the police, such a shooting may constitute a form of seizure of her person.  Under the facts, Menry was not a suspect.  While the officers' action is a tort, it did not constitute an intentional attempt by agents of the state to restrict plaintiff's personal freedom, and did not invoke the search and seizure protections of Article IV, section 5.  No liability is possible on this claim.

B.  Equal Protection
     Plaintiff alleges that the police officers' shooting was an intentional attempt to violate her constitutional rights under Article IV, section 4, to be accorded equal protection of the laws.  Article IV, section 4 is designed to guarantee that similarly situated individuals are not treated differently due to some sort of invidious discrimination.  Samuel v. Pryor, 5 FSM Intrm. 91, 106 (Pon. 1991).  Under the facts, Menry was the victim of a stray bullet.  There was no evidence of any intent to discriminate against her (e.g., shoot her because she is a woman) or otherwise treat her differently from any other person at the scene.  Paul v. Celestine, 4 FSM Intrm. 205, 208 (App. 1990).  This claim is meritless.

C.  Due Process
     Plaintiff alleges that the police officers' shooting was an intentional attempt to violate her constitutional rights under Article IV, 3, and deprived her of life, liberty, or property without due process of law.  Physical abuse committed by police officers may violate a prisoner's right to due process of law.  See Plais, 5 FSM Intrm. at 192-93; Paul, 4 FSM Intrm. at 208; Tolenoa v. Alokoa, 2 FSM Intrm. 247, 250 (Kos. 1986).  Surely, those persons who are not suspects have no less protection from physical abuse and injury at the hands of the police.

     The right to due process of law is violated when a police officer batters a person instead of protecting her from harm.  Meitou, 5 FSM Intrm. at 144.  United States cases recognize that persons who are not in police custody have a due process interest in personal security that may be violated by the acts of police officers.  E.g., White v. Rochford, 592 F.2d 381, 383 (7th Cir. 1978).  The Court

[7 FSM Intrm. 548]

adopts this standard.  The public at large has the right to be free of invasions of their person and personal security by any agent of the state.

     In her post-trial memorandum, the plaintiff styled her 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., the State of Chuuk.  Plais, 5 FSM Intrm. at 205.  The Court reads the Complaint to assert claims for violation of civil rights against the individual officers for their actions in Wichap, and against the State of Chuuk and the Chief of Police for maintaining an official practice or policy of allowing untrained police officers to wield firearms on duty.  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.  The failure of the State to adequately train the police officers, and the excessive force used by the officers themselves is a violation of plaintiff's right to due process of law.  Alaphen, 2 FSM Intrm. at 280; Moses, 2 FSM Intrm. at 271.

     The Court concludes based on the evidence that it is an official practice of the State of Chuuk to allow police officers who have not been properly trained and requalified on the use of firearms to bear firearms while on duty.  The Chief of Police is a high official with power to make policy for the State Police.  Chief of Police William testified to various requirements made under regulation or by the Territorial Register.  It is within the power of the Chief of Police to allow variation from such written regulations.  For example, the Chief of Police testified that even though regulations prohibited it, the State Police had hired convicted felons as police officers.  Likewise, while requalification to bear firearms on duty was required by regulation, the Chief of Police granted a waiver of requalification, at the very least for the three years preceding the shooting at Wichap.  As a result of this policy Menry suffered serious bodily injury, a violation of her right to due process of law.

     That the State considers this an official policy is plain from the lack of any internal discipline whatsoever.  Grandstaff, 767 F.2d at 171.  Subsequent acceptance of dangerous and intentional use of deadly force tends to prove that the State of Chuuk and the Chief of Police had a policy that pre-existed the shooting at Wichap.  Id.  The following facts show that the State of Chuuk ratified the conduct of the police officers at Wichap and accepted their intentional use of deadly force:  (1) no criminal charges were brought against the officers for a fusillade of bullets that resulted in a death and two serious bodily injuries; (2) none of the participating officers were ever disciplined; (3) all the participating officers were back on duty the next day.  The ratification of this official policy of allowing untrained officers to use deadly force is obvious.

     The Court therefore concludes that the defendant officers violated Menry's right to due process of law by firing their weapons and striking her.  The Chief of Police and State of Chuuk violated Menry's right to due process of law by promulgating and ratifying a policy of allowing untrained officers to carry firearms and use deadly force.

III.  Damages
     The plaintiff claimed compensatory and punitive damages in her Complaint. As the Court has ruled, the plaintiff did not renew her claim for punitive damages after trial, nor plead or prove her claim with sufficient particularity.  Unlike a typical case for personal injuries, the plaintiff did not make a specific claim for special damages, i.e., medical expenses incurred, lost wages, impairment of her future ability to earn, and other specific costs that accrued as a result of her injuries at the hands of the defendants.  She may recover them as part of her claim for compensatory damages.  Meitou, 5 FSM

[7 FSM Intrm. 549]

Intrm. at 145.

     Unlike a typical case for personal injury, the plaintiff put on little evidence of her medical expenses.  Despite the lack of evidence, the Court may and does infer from the extent of her actual physical injuries that she did incur and will continue to incur medical expenses.  The Court considers that as part of its award.  Id.

     Menry worked as a secretary and received between $110-$125 take home pay bi-weekly.  As a general rule, gross salary may be a better indicator of lost wages, particularly in Micronesia, where allotments may cut take home pay radically.  Menry did not return to her job until the last week of August 1992.  The Court also considers that due to medical complications, Menry may lose wages in the future.  Finally, the Court infers additional wage loss in the form of benefits and allotments that would have to be paid in some other fashion, even absent proof of wage loss beyond lost take-home pay.  See id.

     The award of compensatory damages includes a sum based on the permanent nature of Menry's injuries.  She is scarred.  As Dr. Ruiz testified, Menry now has a reconstructed and re-routed intestinal tract.  As a result of her injuries, Menry must forgo enjoying certain kinds of food as well as certain physical activities she could engage in before the injury.  22 Am. Jur. 2d Damages 272, 275 (1988).

     The bulk of the award of damages to Menry Davis comes as compensation for her pain and suffering.  She may recover for past pain and suffering, and the reasonable value of pain and suffering she may undergo in the future.  Due to the nature of her injuries, such future pain and suffering is nearly certain.  This award for pain and suffering is for its true value.  There is no justification for reducing an award of pain and suffering merely because a party is injured in Chuuk State. Suka, 4 FSM Intrm. at 131.

     Pain and suffering is the principal element of damages in personal injury case. Since there is no fixed formula for its calculation, the Court must use its discretion in awarding it.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 73 (Pon. S. Ct. Tr. 1987).  A person injured by the intentional tort of another is entitled to an award for pain and suffering, including mental anguish.  Meitou, 5 FSM Intrm. at 146.  The Court has considered Menry's considerable pain and suffering, her present discomfort, and possible future pain, suffering and discomfort in making its award.

     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 receipt of this Order, Plaintiff shall submit a motion for attorney fees and costs that shall state in detail the time for each action devoted to 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 her contract with counsel for services.

     The Court awards Menry Davis $130,000.00 in damages, exclusive of attorneys fees and costs, as follows:

     1.  For the battery, the defendant officers and the State of Chuuk are jointly and severally liable to the plaintiff for the sum of $80,000.00.

     2.  For negligence, the State of Chuuk and Chief of Police Eradio William are jointly and severally liable to the plaintiff for the sum of $20,000.00.

     3.  For violation of the plaintiff's civil rights, the defendant officers, the State of Chuuk, and

[7 FSM Intrm. 550]

Chief of Police William are jointly and severally liable to the plaintiff for the sum of $30,000.00.

CONCLUSION
     The Clerk of Court of the FSM Supreme Court, Trial Division, State of Chuuk, is directed to make and enter a form of judgment, in favor of Menry Davis, and against the defendants, in the amount of $130,000.00, exclusive of attorney fees and costs.