NMI U.S. District Court Rules on Human and Civil Rights Abuses Case

May 14, 2012

As the press focuses on the harsh treatment of Chinese dissident Chen Guangcheng, few have heard of a humble Chinese foreign worker named Jin Dong Wang who was violently beaten by a police officer on U.S. soil in the U.S. Commonwealth of the Northern Mariana Islands (CNMI).

In October 2010 former police officer Jesse Dubrall was with several other CNMI Department of Public Safety officers at an As Lito, Saipan apartment building to conduct a sting operation on a suspected drug trafficker. Jin Dong Wang stepped out of his second floor apartment to bring a bowl of noodles to a friend. He noticed flashlights on the first floor below him. DPS Officer Jesse Dubrall came up stairs and pointed a gun at him. Then without provocation, the officer hit Wang in the back of his head with the butt of his gun. He then kicked the defenseless man continually. Dubrall handcuffed Wang, took his wallet and went inside his house while he lay on the balcony in a pool of blood.

Mr. Wang's wife came home and screamed for help for her husband. An officer removed his handcuffs and two female officer and an another male officer came to assist Wang. They took off his shirt and wrapped it around his bloody head and took him downstairs where they sat him on a chair.

The police officers showed Mrs. Wang a picture of the suspected drug dealer,  Qui Junding and she identified him as someone who lives in the building. Instead of calling immediately for an ambulance, the police asked Mrs. Wang for her husband's umbrella permit (immigration document), which she got from upstairs.  Finally, an English speaking friend insisted that the  police officers call an ambulance for the seriously injured man.

At the hospital Mrs. Wang told another police officer that the injuries were the result of an attack on her husband by the police officer. The Department of Public Safety investigated and found that assault and battery (6 CMC 1202) and assault with a dangerous weapon (6 CMC 1204) was committed against Mr. Wang as stated on the police report. (This account is taken from the complaint Mr. Wang filed in September 2011.)

Dubrall claims that he thought Wang was a drug trafficker. That should not stand as an excepted reason or as an excuse to use excessive force or commit brutal assault and battery on any person, drug dealer or not. The victim was seriously injured and left bleeding on the concrete. The pool of blood was photographed and broadcast on the local KSPN news and published in the newspapers. Where is the public outcry?
The apartment building where Jin Dong Wang was beaten.

One would expect that the CNMI Government would have fired the offending police officer, Jesse Dubrall. One would have expected that the local government would have taken steps to make Mr. Wang whole. Not the CNMI Government. The CNMI Government allowed officer Jesse Dubrall to maintain a government position. After the inhumane and unprovoked attack was reported, Dubrall was transferred to the the Office of the Public Auditor. Even worse, the CNMI Government has vehemently defended the brutal actions of the police officer and federal law enforcement officials have virtually ignored the case.

There was no public outrage that one would have expected as the result of such a violent attack against an innocent member of the community. In most communities across America, the public would have protested such unacceptable police brutality and the police officer would have been charged with the crime and jailed. Not in the CNMI. In the CNMI the officer quit his job and walked to the Office of the Public Auditor where he was hired as an investigator without any public outcry. There was not even an echo of the kind of public protest and demand for justice that erupted in response to police brutality in the cases of individuals like Rodney King, Malice Green or Amadou Diallo.

We should ask, "Has there been no public outcry and no public demand for justice because the man was a Chinese foreign worker?" If the victim had been a "local" or a member of the higher tier in the CNMI's two-tiered society, rather than a disenfranchised foreigner worker the public would there have been a unified outcry? Then again, it is doubtful that a "local" or a franchised member of the upper tier would have even been the victim of such a violent and unwarranted attack.

Instead of charging former police officer Jesse Dubrall with assault and battery when he brutally beat an innocent foreign worker in October 2010, the Attorney General did nothing. When the victim had to file a civil case because neither the CNMI or Federal Government filed charges against the attacker, the CNMI Attorney General excused the officer's criminal act by saying that “it was within the scope of his duty.”

If brutally beating a person “is within the scope of duty of a CNMI police officer” then there is no resident, no tourist, absolutely no person who lives in the CNMI or visits the CNMI who is safe. This policy, the CNMI's legal response and the public apathy to the case should be broadcast to the world so tourists are forewarned. They too could be mistaken for a criminal and become the victim of a life altering beating that will be excused by the government? The AG's statement of defense should be given to the government officials of every country that allows their citizens to work as foreign workers in the CNMI so that they can reconsider sending any foreigner to work in such an unsafe place. Foreign leaders should be alerted so that they can consider issuing travel warnings for their citizens to avoid travel to the CNMI, which is an unsafe destination. U.S. Attorney General Eric Holder should be alerted to the details of the case and CNMI Government's stand and he should be asked to explain why the F.B.I. and U.S. Attorney Office did not prosecute this case. Secretary of State Hillary Clinton should be notified so that she can include this policy and incident in the annual Country Reports on Human Rights Practices. The United Nations Office of the High Commission for Human Rights should be notified of the acceptance and defense of such a human rights violation.

Police officers should be protecting the public, not attacking them. Police officers should be improving peoples’ lives, not ruining them. The growing list of lawbreaking and criminal CNMI police officers illustrates that police officers in the CNMI are too often treated as though they are above the law, just like the CNMI Attorney General who violated the Hatch Act and CNMI election and ethics laws.

The seriousness of the victim's injuries are detailed in the complaint that was filed by his attorney David Banes in the U.S. District Court of the NMI in September 2011. The complaint outlines the incident and violations. The DPS incident report attached to the complaint reveals that the offenses of assault and assault with a deadly weapon were listed. The officer listed Wang's injuries as "minor" on the report. However, photographs, hospital records and the complaint reveal otherwise. From the complaint:
"Wang suffered severe injuries on his head, abdomen, buttocks and legs. He felt dizzy, weak and nauseous. He suffered concussion, rib contusion, spine contusion, blurred vision and post traumatic nightmares. He was also in a state of shock and was very nervous and frightened as a result of the assault. These caused him painful and sleepless nights. The assault caused Mr. Wang's physical injuries requiring past, present and future medical care, lost wages, pain and suffering, and loss of enjoyment of life and other injuries and damages."
These are not minor injuries. The complaint stated that he is still recovering from his injuries. Dubrall denied assaulting Wang, according to motions filed by the OAG that is representing the defendants in this case.  Some statement in the OAG "Reply to opposition to motion to substitute a defendant as to the defendant's 1st, 2nd, 3rd and 9th causes of actions" are disturbing:
In this case, the Attorney General has produced sufficient evidence by means of the Attorney General's Certification to make a prima facie showing that Dubrall was acting within the scope of his employment as an employee of CHC. (I think he meant DPS)

. . . In this case, Dubrall admits to being at the residence for the purpose of executing a valid search and arrest warrant. Answer ¶ 10. Dubrall admits to holding a gun and telling Wang to get on the ground. Answer ¶ 13. Dubrall further admits that he handcuffed Wang. Id. Dubrall, however, denies Wang's assertion that he assaulted and battered him or committed any other unlawful act. Id.; see generally Answer. It is undisputed that Dubrall's actions were in furtherance of DPS's business. Id. The above events are what occurred, not a random and senseless attack for which there is no plausible explanation. What occurred is fully within the scope of the employment of a police officer. Therefore, under Commonwealth law, 7 CMC § 2201 et seq. and Kabir , 2009 MP 19, CELRTCA applies  to government employees accused of committing intentional torts even if the Commonwealth is immune from such causes of action, and under the facts of this case, Dubrall was acting within the scope of his employment when the incident occurred.

Wang has the burden to show that Dubrall was not acting within the scope of his employment with DPS when the events giving rise to this action occurred. He has failed to proffer any evidence with his complaint substantiating his claim. Wang's opposition likewise fails to introduce any evidence. Wang will be unable to proffer any evidence that an assaul and battery occurred because none did. Officer Dubrall temporarily arrested an individual who failed to comply with his lawful order and that is all that happened. Therefore, the Commonwealth respectfully requests that the court deny Wang's request for discovery and an evidentiary hearing.
So we are to believe that Wang assaulted himself? Or that a taotaomona or another individual assaulted him? A person suffering such a terrible attacks and resulting injuries would remember the face of his attacker! Again, please read the extent of his injuries:
"Wang suffered severe injuries on his head, abdomen, buttocks and legs. He felt dizzy, weak and nauseous. He suffered concussion, rib contusion, spine contusion, blurred vision and post traumatic nightmares. He was also in a state of shock and was very nervous and frightened as a result of the assault. These caused him painful and sleepless nights. The assault caused Mr. Wang's physical injuries requiring past, present and future medical care, lost wages, pain and suffering, and loss of enjoyment of life and other injuries and damages."
How did he these injuries befall him if not by the gun and hands of Officer Dubrall?

Conveniently Dubrall was allowed to exit DPS to accept a position at the OPA as if he had done nothing wrong. As a result in the CNMI's "Reply to plaintiff's opposition to dismiss of defendant CNMI/DPS of Defendant CNMI",  AAG Lochaby argued:
"It is incorrect to state that DPS refused to punish Defendant Dubrall anyway. DPS did not investigate the alleged incident of excessive force any further than it did, and took no disciplinary action because Officer Dubrall had tendered his resignation to the DPS."
This move is highly questionable and suggests that the officer was in fact guilty. Furthermore, above the statement conflicts with a previous statement by Commissioner Sandy Tudela in October 2010. He stated that he was conducting an investigation and confirmed that a police officer was involved in the assault.

Also contained in the reply is this statement: "The misconduct alleged in this case is not so great."

Really? Again, no one is safe in the CNMI if laws allow for police officers to inflict injury upon innocent persons.

The complaint stated, "Mr. Wang incurred and continues to incur medical expenses and physical and emotional harm as a result of the assault and battery in an amount to be proven at trial." Dubrall and/or the CNMI Government should pay for his medical expenses, suffering and punitive damages.

Can the CNMI afford to continually hire rogue cops? (See this post for a list of law-breaking police and other public safety personnel.) Why didn't the CNMI Department of Public Safety or the U.S. Attorney files charges against this cop? Don't all of the people who work and reside in the CNMI deserve to have their basic civil and human rights protected?

Any person with a conscience and even a minimal amount of empathy would be outraged to read Mr. Wang's complaint that details the attack, the civil rights violations, the constitutional rights violations and human rights violations that resulting in serious harm and suffering of an innocent man. Please read it:

Last week U.S. District Judge Ramona Manglona issued an opinion and order in this case that demonstrates that justice and basic civil and human rights are too often out of reach for those disenfranchised residents of the CNMI lowest tier. The judge ruled on each of the nine causes of action:
(1) assault and battery against Officer Dubrall;
(2) false arrest against Officer Dubrall;
(3) emotional distress against Officer Dubrall;
(4) violation of federal civil rights by Officer Dubrall in his individual capacity;
(5) violation of federal civil rights by Commissioner Tudela;
(6) negligence by DPS and Commissioner Tudela;
(7) violation of civil rights under the CNMI Constitution against Officer Dubrall;
(8) violation of civil rights under the CNMI Constitution against DPS, Commissioner Tudela, and Doe Defendants; and
(9) negligence by DPS, Officer Dubrall, Commissioner Tudela, and Doe Defendants.

The court's ruling:
1. Defendants’ Motion to Dismiss DPS/CNMI is GRANTED as to Wang’s eighth and ninth causes of action. Wang is granted leave to amend his eighth cause of action with respect to the allegation of illegal search and seizure and his ninth cause of action. 
2. Defendants’ Motion to Dismiss Tudela as to Wang’s fifth, eighth, and ninth causes of action is GRANTED. Wang is granted leave to amend his fifth and ninth causes of action only against Tudela. 
3. The Government’s Motion to Substitute the CNMI as to Wang’s first, third, and ninth causes of action against Defendant Dubrall is denied without prejudice. Wang may proceed with discovery on these claims and may petition for judicial review and an evidentiary hearing of the Attorney General’s certification thereafter but prior to trial. After discovery closes, the Government may renew its motion to substitute if it finds adequate cause in compliance with Fed. R. Civ. P. Rule 11. The Government’s motion to substitute in for Dubrall as to Wang’s second cause of action is GRANTED. Defendant Dubrall is hereby dismissed from this claim pursuant to CELRTCA.
4. Finally, the Commonwealth’s motion to strike Wang’s demand for a jury trial against it is GRANTED. Wang’s claims against the Commonwealth will proceed on a bench trial.
CELRTCA is the Commonwealth Employee Liability Reform and Tort Compensation Act, codified at 7 CMC § 2201 et seq. A clarification from the opinion:
CELRTCA accords government employees absolute immunity from common law tort claims arising out of acts undertaken during the course of their official duties. CELRTCA is modeled after the Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act. Kabir v. CNMI Public School System, 2009 MP 19 ¶ 25. The Westfall Act’s stated purpose was to “protect Federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of Federal employees with an appropriate remedy against the United States.” Id. (citing Pub. L. No. 100-694, §2(b)). Like the Westfall Act, the purpose of CELRTCA is to relieve Commonwealth employees from the cost and effort of defending a lawsuit for allegedly tortious conduct undertaken within the scope of employment and to place those burdens on the government’s shoulders alone. Id. (quoting Osborn v. Haley, 549 U.S. 225, 252 (2007)); see also PL 15-22 § 2 (stating that the “proposed amendments to the Commonwealth Government Liability Act would accomplish the same purpose for the Commonwealth.”). 
When a Commonwealth employee is sued for wrongful or negligent conduct, CELRTCA empowers the Attorney General to certify that the employee “was acting within the scope of his/her office or employment at the time of the incident out of which the claim arose.” 7 CMC § 2210(a). Under CELRTCA, the scope of the employment certification is governed by the responding superior law of the Commonwealth. Kabir, 2009 MP 19 ¶ 26. Upon the Attorney General’s certification, the employee is dismissed from the action, and the government is substituted as the defendant in place of the government employee. 7 CMC § 2210(a); Kabir, 2009 MP 19 ¶ 26. Once the government has been substituted as the defendant in place of the employee, the litigation is thereafter governed by the Government Liability Act. 7 CMC § 2210(c); Kabir, 2009 MP 19 ¶ 26. 
The issue of whether the mere pleading of an intentional tort such as assault and battery against a government employee denies the ability of the government to be substituted for the employee was squarely addressed in Kabir. In Kabir, the court held “that CELRTCA scope of employment certification is not limited to negligence claims.” 2009 MP 19 ¶ 39. The court found that the legislature made clear that the CELRTCA certification applies to “negligent or wrongful” conduct – which includes intentional torts – so long as the conduct fell within the scope of employment. Id. ¶ 43. The court further recognized that “in certain circumstances involving intentional torts, the CNMI Attorney General’s scope-of employment certification would be dispositive of the plaintiffs suit.” Id. ¶ 28. 
Based on the holding in Kabir, the mere fact that Wang pled the intentional tort of assault and battery and false arrest does not preclude the Commonwealth from substituting for Officer Dubrall. 
Wang asserts that the plain language of 7 CMC § 2210(a) precludes substitution in this case. (Opp’n. to Substitute at 5–6.) Section 2210(a) states that “the Commonwealth shall be substituted as the party defendant, if the Commonwealth was not already a defendant in the suit.” Wang argues that this means that the Commonwealth cannot substitute for Dubrall or have him dismissed from the case because the Commonwealth is already a defendant in the case. (Opp’n. to Substitute at 6–8.) Wang’s argument is unpersuasive. The intent of the legislature in passing CELRTCA was to relieve Commonwealth employees from the cost and effort of defending a lawsuit for allegedly tortious conduct undertaken within the scope of employment, and to place those burdens on the government’s shoulders alone. Kabir, 2008 MP 19 ¶ 25. Wang’s interpretation would go against this legislative intent behind CELRTCA. The correct interpretation of that section is that upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time the incident out of which the claim arose, any civil action or proceeding upon such claim in a court against an employee shall be deemed an action against the Commonwealth. The Commonwealth is substituted in as a party defendant and assumes any liability that the individual employee would be held liable. 
Further, Wang ignores the last sentence of 7 CMC § 2210(a), which mandates the dismissal of the individual government employee upon certification by the Attorney General that the defendant employee was acting within the scope of his employment. See Kabir, 2009 MP 19 ¶ 26. The phrase “if the Commonwealth was not already a defendant in the suit” does not concern whether the Commonwealth assumes any liability, but rather clarifies that there is no need to add or name the Commonwealth if it is already named in the case. If the Commonwealth is already a named defendant, then it would not need to be substituted into the lawsuit for the claim. The final sentence of Section 2210 nevertheless requires the dismissal of the employee defendant. The net effect would be to allow the claim to go forward against the Commonwealth as the sole defendant. Such an interpretation conforms with the intent of the legislature and is consistent with the language of the statute.
Was the Westfall Act and CELRTCA intended to grant immunity to a government employee who violates a person's civil and constitutional rights? Who assaults and severely injures an innocent person based on falling within the scope of his duties? Perhaps a gang member, a member of a criminal ring or a hit man would list assault and battery as within the scope of his duties, but a police officer? Why should it be acceptable for any person, regardless of employment status, to be excused from committing an obvious crime to an innocent person? Where in his list of a DPS officer's job duties does beating and seriously injuring an innocent man fall? Why is the OAG protecting a rogue cop?

From reading all of this case's legal documents, it looks like Mr. Wang has an excellent attorney. May he receive the justice that he deserves.

See these posts for background information:
November 16, 2011 Police Brutality Case Under Investigation by Federal Officials
November 9, 2011 Dubrall Claims Brutal Beating of Innocent Man Within Scope of His Duties
September 19, 2011 Man Beaten By Cop Files Civil Suit
March 19, 2011 Wrong Side of the Law
July 26, 2011 Major Fail: DPS and OAG
January 22, 2011 More Police Brutality
October 26, 2010 CNMI Abuses
October 24, 2010 Undercover
March 15, 2010 Tale of Police Brutality


Anonymous said...

Justice needs to be handed down to the Defendant IF all the allegations are true. There are numerous organized crime syndicates operating on Saipan. The Russian Mafia, Chinese Triads, Yakuza, Filipino Kuratong Baleleng. They are all there and they are ruthless. Allowing guest workers to stay and letting Russians, Chinese to come and go as they please, Federal laws have made it much easier for them to operate. It's no surprise Dubrall jumped on the wrong Chinese. How can you tell who's who anyway? This is not racist, it's true especially for an island like Saipan. Even Chinese officials have picked up the wrong people many many time. Just deport all non Green Card holders. Forget this nonsense with parole and all of it's complications. Just get them to go home. This should have been done years ago.

Wendy Doromal said...

Anonymous 11:36

I believe that the allegations are true.

There are numerous crime syndicates that you know of operating in the CNMI? I am assuming you have notified the FBI? And what does this have to do with an innocent man being violently beaten by a rogue officer? You are saying that any Russian, Chinese or other foreign tourist or foreign worker can be "jumped" because they may be mistaken for a person belonging to a crime syndicate? You say , "It's no surprise Dubrall jumped on the wrong Chinese."

Dubrall or any other police officer who is charged with protecting the people and ensuring safety should not be "jumping" on any person -whether criminal or not; whether Chinese or any other nationality! This is EXACTLY why I say NO person is safe in the CNMI. It is the most lawless place I ever ever heard of anywhere on US soil. It is a place where the offenders and the residents make excuses for the illegal, unethical and immoral behavior of the upper tier or politically connected. They even vote the known offenders into office or back into office after they have done terrible things. They watch as former felons are appointed to cabinet positions. Most sit silently and watch people get hurt and do nothing to change the laws or policies or to demand justice for the victims.

And yes, what you say is racist. Please review the list of arrests over the last 20 years and you will find that the vast majority of violent crimes were committed by CNMI residents and not by foreigners. Ask who is being held in the DOC and you will also find that only a small minority are foreigners.

Anonymous said...

Anonymous 11:36,
Please do us a favor, don't ever ever apply to become a police officer or alike agencies... I am 100% sure you end up in jail for being racist... stop now!

Anonymous said...

11;36 are you crazy? how dare you hate humanity.what foreign workers has done? you and your haters has created this all problems.workers are here from long time.they support your people to survive on them and continue.you dont have respect for humanity because you never feel sorrow,pain.thats your fault.not F-workers.as a humanity/USA law they are greencard holders but your haters had played dirty mind and corrupted the lobby to block it by your and F-workers money.laniya u such a nonsence human on universe.better ask your haters and teach them what is the humanity.you guys are not really USA citizen.seek in ur root u will know your grand parents were refugee after ww-2 USA decided to welcome u guys to become citizen. true is always better baby...cry ur self will help u...godbless u ;amen

Anonymous said...

Yes, Mr. Wang has a good attorney.

Yet this kind of thing happens all the time on the mainland, often with much more tragic (fatal) results.

Erradicating crime is a rough and tumble business; mistakes are made. These cops put their lives on the line every day, and tend to err on the side of overzealousness compared to their getting killed.

I am not saying this is right, or fair, or just. Evil is a reality in this world. What I am saying is that if you review the cases, this is much more commonplace than you seem to imagine.

However this case is decided in the District Court for the Northern Mariana Islands, it will be subject to review by the U.S. Court of Appeals for the Ninth Circuit.

They have seen it all, too. Don't be surprised if they are not as outraged as you are. They have also seen the consequences when criminal gangs run amok.

Wendy Doromal said...

Anonymous 11:05
"Erradicating crime is a rough and tumble business; mistakes are made. These cops put their lives on the line every day, and tend to err on the side of overzealousness compared to their getting killed." An unarmed man with a bowl of noodles is hardly dangerous! Perhaps officers need far more training. This does not happen all the time. When it does, there is outrage in the community where it takes place. I have witnessed police officers commit far less severe, but improper acts and the public was outraged and demanded and got justice for the victim/s.

What criminal gang? What does a gang have to do with a man with a bowl of noodles being brutally beaten by a cop?

Anonymous said...

How does the opinion "demonstrate[] that justice and basic civil and human rights are too often out of reach for those disenfranchised residents of the CNMI lowest tier"?

As far as I can tell, most of the counts survive and the ones that don't may be amended. A few of the dismissals seems mostly about identifying the real party to be sued.

Dude should be fired and arrested, not transferred.

Wendy Doromal said...

Anonymous 9:50

Thanks for the comment. Yes, he should be fired and arrested, not transferred. I should have said that the law enforcement agencies, not the opinion or court "demonstrates that justice and basic civil and human rights are too often out of reach for those disenfranchised residents of the CNMI lowest tier." It was the OAG and US DOJ that failed to file charges and prosecute this obvious crime so that the victim had to file a civil suit in an attempt to obtain some justice.