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Claiming sovereign immunity, ASG moves to dismiss lawsuit

reporters@samoanews.com

Associate Justice Lyle L Richmond and Associate Judge Mamea Sala Jr. have taken under advisement a dismissal motion by the government in a lawsuit naming the American Samoa Government and Henry Sesepasara Jr. as defendants.

Assistant Attorney General Jay Sales is the government lawyer for this matter while the plaintiff is represented by Mark Ude.

The lawsuit by William Robert Malepeai was filed October last year, claiming that his vehicle was damaged by Sesepasara due to the negligence of police officers in an incident where Malepeai was a suspect in a public peace disturbance incident. Malepeai was not arrested for that incident.

The government moved for the court to dismiss the lawsuit, noting the plaintiff has failed to state a claim upon which relief can be granted and therefore should be dismissed under the Trial Court Rule of Civil Procedure. According to the motion, sovereign immunity protects the government from tort claims, except when waived.

The plaintiff’s claims are barred under the discretionary exclusion of the Government Tort Liability Act (GTLA), which has it that the government is liable, except as otherwise provided... in the same manner and to the same extent as a private individual under like circumstances.

According to the government’s motion, the court in American Samoa has mirrored the United States Supreme Court’s test to determine if the discretionary exclusion applies to GTLA claims.

The government lawyer also cited a test from the United States versus Gaubert Gibbons requiring the court to take a two part analysis of the actions of government officials and employees in determining if the discretionary exclusion applies.

The motion goes on to say that the court should follow the United States versus Gaubert tests in analyzing the discretionary exclusion in the GTLA.

According to the dismissal motion, the government is immune from the plaintiff’s claims due to the discretionary exception in the GTLA’s waiver of Sovereign Immunity. “In applying the test from United States versus Gaubert the court must look to see if the police used discretion to keep the plaintiff from the location of his vehicle.

“It is clear that the police used their discretion to intervene and prevent the plaintiff from returning to the scene of the brawl by repeatedly intercepting the plaintiff and preventing him from returning to the area of the brawl while threatening individuals were present”.

The dismissal motion states that law officers must make on-the-spot and split-second decisions of how to allocate their limited resources and prioritize the protection they offer the public. In this instance the police officers prioritized the plaintiff’s safety over that of his property.  

According to the dismissal motion, by applying the United States versus Gaubert in this area of liability the court will prevent the government’s peace officers from incurring liability when making decisions on how to manage the protection of the public of American Samoa and reaffirmed the test of determining liability.  

During the hearing on this dismissal motion, Ude said in court that the government  failed to bring up that what the police officers did with regards to removing Malepeai’s car keys from him, based upon their discretion.

He added that Malepeai’s vehicle should have been impounded; instead, the police officers left the car at the scene, and as a result it was damaged, he alleged.

This is the second dismissal motion the government has filed for this lawsuit. The previous dismissal motion, where the government noted that the plaintiff failed to provide actual basis for the allegations, was denied by the Trial Division of the High Court.



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