THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Paul v. Celestine, 4 FSM Intrm. 205 (App. 1990)

[1 FSM Intrm. 205]

YOSIMI PAUL,
Appellant,

vs.

BENANCE CELESTINE, AUGUSTINE LUZAMA
and KOLONIA TOWN,
Appellees.

FSM APP. NO. P2-1987
(From FSM Civ. No. 1986-053)

OPINION
 
Argued:  July 29, 1988
Decided:  January 10, 1990
 
Before:
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court;
     Hon. Judah Johnny, Temporary Justice, FSM Supreme Court*;
     Hon. Mamoru Nakamura, Temporary Justice, FSM Supreme Court**

     * Associate Justice, Pohnpei State Supreme Court, on this Court by special designation for this case.
     **Chief Justice, Supreme Court of the Republic of Palau, on this Court by special designation for this case.
 
APPEARANCES:
For the Plaintiff:          Daniel J. Berman
                                     Attorney at Law
                                     Kolonia, Pohnpei  96941
  
For the Defendants:   Jim Hagerstrom
                                     Legal Counsel
                                     Kolonia Town Government
                                     Kolonia, Pohnpei  96941
 
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HEADNOTES
Torts - Assault and Battery
     A battery or an assault is not determined by the presence or absence of injury; battery is a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such contact, while assault refers to the apprehension of imminent contact.  Paul v. Celestine, 4 FSM Intrm. 205, 207 (App. 1990).

[1 FSM Intrm. 206]

Civil Rights; Constitutional Law - Cruel and Unusual Punishment
     Where a person has not been tried, convicted and sentenced, no question of cruel and unusual punishment arises.  Paul v. Celestine, 4 FSM Intrm. 205, 208 (App. 1990).

Constitutional Law - Interpretation
     Where the language of the FSM Constitution has been borrowed from the United States Constitution, the court may look to leading United States cases for guidance in interpreting that language, especially where the meaning is not self-evident from the words themselves; in particular, United States constitutional law at the time of adoption of the FSM Constitution can have special relevance in determining the meaning of similar constitutional language here.  Paul v. Celestine, 4 FSM Intrm. 205, 208 (App. 1990).

Constitutional Law - Due Process
     The due process clause of the FSM Constitution's declaration of rights is based on the due process clause of the United States Constitution.  Paul v. Celestine, 4 FSM Intrm. 205, 208 (App. 1990).

Civil Rights; Constitutional Law - Due Process
     In determining whether the constitutional line of due process has been crossed, a court must look to such factors as the need for application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm.  Paul v. Celestine, 4 FSM Intrm. 205, 208-09 (App. 1990).

Appeal and Certiorari
     The general rule is that on appeal a party is bound by the theory advanced in the trial court, and cannot urge a ground for relief which was not presented there, particularly where the party had ample opportunity to raise the issues in the trial court instead of presenting them for the first time on appeal.  Paul v. Celestine, 4 FSM Intrm. 205, 210 (App. 1990).
 
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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     The plaintiff brought this action to recover damages, both compensatory and punitive, for the deprivation of his civil rights, and for assault and battery.  After trial the court found in favor of the defendants and against the plaintiff.  The plaintiff now appeals from the dismissal of his complaint.  The defendants were not represented on appeal.

     We conclude that the trial court used the correct standard in determining whether a "push, punch or shove" to intimidate the plaintiff deprived him of due process of law, and we remand the case to permit the trial

[1 FSM Intrm. 207]

court to make findings and conclusions on the civil action for assault and battery.

I.
     At about midnight on April 11, 1986 the individual defendants, police officers of Kolonia Town, were dispatched to the plaintiff's house because of reports of loud music disturbing the neighborhood.  Upon arrival they heard no music, entered the plaintiff's premises, and found the plaintiff sleeping with a beer can about six inches from his hand.

     The defendants awakened the plaintiff and asked if he had a drinking permit.  The plaintiff said no.  He was then arrested for violation of the Kolonia Town ordinance which requires a permit to drink alcoholic beverages.  The ordinance does not provide any penalty for drinking.  The only penalty set out is for furnishing alcohol to minors.

     Upon arrest the plaintiff was handcuffed behind his back and taken to the police station.  At the station he offered no resistance.  When asked his name, he replied, "You know my name."  The court's findings set forth what happened next: "[W]hereupon Officer Celestine pushed, punched or shoved Yosimi Paul's head in such a way as to intimidate him"; "The push, punch or shove by Officer Celestine intimidated Yosimi Paul and he thereupon stated his name to Officer Celestine."  However, the trial court added that "I am not persuaded by the evidence that Officer Celestine's push, punch or shove either injured Yosimi Paul in any way or constituted police brutality."

     A portion of the court's conclusions states, "Finally, although Officer Celestine did push, punch or shove Yosimi Paul at the Kolonia Town Hall in order to intimidate him so that he would respond to Officer Celestine's demands for information, there is no showing that the contact caused injury to Yosimi Paul or was of a nature, or sufficient force, to constitute a civil rights violation."

II.
     A.  The trial court did not include a reference to the claim based on assault and battery in its conclusions.  Although it is possible that he believed it was covered because of his finding that there was no injury to the plaintiff, we do not want to assume this.

     A battery or an assault is not determined by the presence or absence of injury. Battery is "a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff. . . to suffer such a contact", W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts 39 (5th ed. 1984).  Assault refers to the apprehension of imminent contact.  Id.

     On remand the trial court is asked to enter findings and conclusions which decide the assault and battery tort claim.

[1 FSM Intrm. 208]

     B.  We next turn to the issue of whether the push, punch or shove constituted a deprivation of the plaintiff's rights.

     In Count II of his complaint the plaintiff alleges that the injuries inflicted upon him deprived him of his right to be protected from the infliction of cruel and unusual punishment, his right not to be deprived of liberty without due process of law, and his right to the equal protection of the laws, all protected by the FSM Constitution.

     Two of the allegations of deprivation have no bearing on this case.  First, since the plaintiff had not been tried, convicted and sentenced before the push, punch or shove, no punishment had been imposed.  Therefore no question of infliction of cruel and unusual punishment arises.  Second, the record fails to support the allegation of a denial of equal protection.

     Plaintiff cites the case of Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033 (1973) for a respected standard to determine whether excessive force was used during detention.

     Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates prisoner's constitutional rights.  In determining whether the constitutional line has been crossed, a court must look to such factors as the  need for application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Id. at 1033.

     It is well settled in the decisions of this court that where the language of the FSM Constitution has been borrowed from the United States Constitution, we may look to leading United States cases for guidance in interpreting that language, especially where the meaning is not self-evident from the words themselves.  Alaphonso v. FSM, 1 FSM Intrm. 209, 216 (App. 1982); Jonas v. FSM, 1 FSM Intrm. 322, 327 (App. 1983); Ludwig v. FSM, 2 FSM Intrm. 27, 35 (App. 1985); Gilmete v. FSM, 4 FSM Intrm. 165, 169 (App. 1989).  In particular, United States constitutional law at the time of adoption of the FSM constitution can have special relevance in determining the meaning of similar constitutional language here.  Lonno v. Trust Territory, 1 FSM Intrm. 53, 71 (Kos. 1982).

     The due process clause of our declaration of rights, FSM Const. art. IV, 3, is based on the due process clause of the United States Constitution.  Ludwig v. FSM, 2 FSM Intrm. at 35.  The Johnson v. Glick standard has been widely accepted as the appropriate standard for excessive force claims under the due process clause of the United States Constitution since 1973.  Of course, we are not bound to follow that interpretation here, especially in

[1 FSM Intrm. 209]

light of the judicial guidance clause, FSM Const. art. XI, 11, but there is nothing that suggests that the analysis in Johnson v. Glick is not "consistent with this Constitution, Micronesian customs and traditions, and the social and geographic configuration of Micronesia."  Id.  We hold, therefore, that the Johnson v. Glick analysis is correct for determining whether the use of force is violative of due process.

     The findings and conclusions of the trial court reflect a weighing of the various factors set forth in Johnson v. Glick, therefore we do not disturb the result of the court's weighing.

     The plaintiff however asks us to adopt a rule in this jurisdiction extending Johnson v. Glick and declaring the use of any force to be a violation of civil rights if there is no need or lawful purpose for it.  The U.S. cases in support of this proposition cited by the plaintiff and arising under the due process clause, although having language supporting the plaintiff's position, are factually different from the case before us.  For instance, the allegations in Norris v. District of Columbia, 737 F.2d 1148 (D.C. Cir. 1984) were that four correctional officers "maced, beat and kicked" the pre-trial detainee "causing substantial immediate pain as well as lingering ill effects."  Id. at 1152.

     The plaintiff includes in his authorities cases which implicate the reasonableness of the seizure, that is, cases arising under the fourth amendment of the Constitution of the United States.  For example, Bauer v. Norris, 713 F.2d 408 (8th Cir. 1983) involves minor injuries and has language supporting the proposition the plaintiff suggests.  However those injuries occurred at seizure and, as stated, the constitutional basis is one not alleged in this case.

     For the reasons stated the trial court's judgment is affirmed on the issue of excessive force being used at the Kolonia Town Hall.

III.
     The defendant raises the following issues on appeal as to the lawfulness of his arrest:

     1.  the Kolonia ordinance does not create a criminal offense because the ordinance fails to provide any penalty or punishment for violation of its provisions;

     2.  12 F.S.M.C. 211(3), permitting arrests without a warrant "when a criminal offense has been committed," does not authorize arrests for violations of local ordinances because they are not criminal offenses; and
 
     3.  arrest without a warrant for violation of a local ordinance violates article IV, section 5 of the FSM Constitution which secures the right of one's person to be free from unreasonable seizure.      

[1 FSM Intrm. 210]

     Although the issue of the lawfulness of the arrest was the subject of extensive oral and written briefs in the trial court, the points listed above were not raised so that they are preserved for appeal.

     The general rule is that on appeal a party is bound by the theory advanced in the trial court, and cannot urge a ground for relief which was not presented there. See cases cited at 4 C.J.S. Appeal and Error 241(e) (1957).  Although courts in unusual circumstances make exceptions to this general rule, we do not feel such a course is appropriate here.  Our reasons follow:  (1) as mentioned, the alleged unlawfulness of the arrest was the subject of extensive written and oral argument;  (2) the arrest issue was supported by detailed testimony; (3) in the course of oral argument plaintiff's counsel appeared to concede that the arrest was for a misdemeanor and was justified; and (4) the trial judge repeatedly stated that the police had exercised poor judgment in waking and arresting the plaintiff.  In this climate the court welcomed a full presentation and had an extensive colloquy with plaintiff's counsel on the arrest issue, giving the plaintiff ample opportunity to raise these issues in the trial court instead of presenting them for the first time on appeal.

     The case is remanded to the trial court for additional findings and conclusions as to the tort claim.

     The judgment of the trial court dismissing the plaintiff's civil rights counts is affirmed.
 
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