ASG relieved to be exonerated in Birdsall Alailima case
The Attorney General’s Office is pleased that the High Court has cleared the government regarding allegations made by former ASG official Birdsall Alailima in his lawsuit filed in 2009.
The trial division of the High Court, following a bench trial in March this year and a decision issued Aug. 15, ruled in favor of the government in all three counts laid by Alailima. The court also cleared former deputy attorney general Fredrick O’Brien of the three counts, while defendant Mike Sala, former director of the local Department of Homeland Security was cleared of two counts.
Responding to Samoa News request for comments, Assistant Attorney General Eleasalo Ale said, “we are of course thankful that the Court has exonerated the ASG from these charges. We are currently reviewing the order and considering our options.”
The bench trial centered on the plaintiffs’ count two — alleging an unconstitutional search and seizure of plaintiff's luggage that was already checked in with Hawaiian Airlines; count three — alleging that statements made by Sala and O’Brien to the media (mainly Samoa News) were defamatory regarding Birdsall; and count six — alleged violation of Birdsall’s protected right to the dignity of an individual under provision of the American Samoa Constitution. (See yesterday’s edition on part one of the decision which covers background information and Sala’s judgement on count six.)
In today’s edition more details on counts two and three. Plaintiffs in the case are Birdsall and his minor daughter.
Plaintiffs contended the removal of their luggage from the Hawaiian Airlines flight was an unconstitutional search and seizure. They argued there was evidence the luggage may have been searched, because luggage belonging to Birdsall’s sister, who was also on that same flight, was allegedly tampered with.
Plaintiffs claim that this and the fact there was allegedly an order to remove all “Alailima” luggage from the flight, is sufficient evidence to justify a finding of a constitutional violation.
However, the judges disagreed, saying there was simply not enough evidence to support such a claim. “This purely circumstantial evidence is insufficient to support a finding of a constitutional violation by ASG,” the judges said.
The luggage had been removed after the plaintiffs were denied boarding at the Tafuna airport.
Plaintiffs argued that O’Brien made defamatory statements against Birdsall by issuing a written stop order charging him with conspiracy and by repeating accusations against Birdsall to the local media.
Plaintiffs claimed Sala slandered Birdsall by telling O’Brien that a stop order should be issued for Birdsall due to alleged criminal activity and by later making statements to the newspaper in which he accused Birdsall of contributing to the local government's financial woes.
After citing provision of local laws dealing with such an issue, as well as two local court cases, the judges said O’Brien clearly made statements regarding Birdsall and alleged wrongdoing on his part, but “we cannot detect any malice on the part of O’Brien in making his statements.”
Evidence has established O’Brien was operating under the impression provided by Sala that the FBI had requested a stop order be issued because of an alleged felony committed by Birdsall.
Additionally, O’Brien issued the stop order pursuant to his duties working in the Attorney General’s Office. Moreover any comments he made to the newspaper were regarding the process of issuing stop orders during the course of his duties.
According to the judges, O’Brien’s comments “were notably restrained, as he refrained from commenting on the specifics of the stop order and merely stated that stop orders are issued in felony cases and that the individual identified in the order ‘may have been involved’.”
The judges noted that it’s unclear as to what was actually said in the conversation between O’Brien and Sala, who denied telling O’Brien the FBI wanted a stop order issued. Additionally, Sala claims he tried for quite some time to retrieve government documents from Birdsall but to no avail, so when he found out that Birdsall was leaving the territory, he tried to prevent the loss of these documents.
“Unbeknownst to him (Sala), Birdsall was no longer in possession of these documents, but Sala claims this was Birdsall’s fault because he was completely unresponsive to Sala’s previous requests for the return of the documents,” the judges said.
“Sala’s version of events is plausible, even if the manner in which the stop order was created was done haphazardly,” the judges said. “If Sala believed that Birdsall was in possession of the documents for more than a month, he definitely should have made more of an effort to retrieve them instead of requesting the stop order at the last minute.”
“However, we cannot say that the last-minute nature of the stop order made Sala’s request defamatory,” the judges pointed out. “Sala’s statements to O’Brien regarding the stop order appear to have been made in the proper discharge of his duties and are thus privileged.”
According to the judges, plaintiffs failed to prove that Sala’s statements to O’Brien were defamatory.
Regarding Sala’s comments to Samoa New about Birdsall’s “supposed responsibility for ASG’s financial troubles, we believe that Sala was merely expressing his opinions to the newspaper,” the judges said.
“We do not believe that the average person hearing these hyperbolic comments would actually blame Birdsall for the territory’s financial situation, and therefore we hold that Sala’s comment regarding Birdsall’s responsibility for ASG financial problems were not defamatory,” the judges say.
According to the judges, Birdsall has not proven damages for lost wages resulting from the incident. They says the evidence “does not preponderate to establish that Birdsall was denied comparable $40,000 per year employment principally due to his ASG termination rather than his qualifications based on educational background, long-term territorial work experience, or other factors.
Similarly, the evidence “does not persuasively convince us that his foreclosure losses, $70,000 for the loss of his land and $40,000 for the loss of his residence, were unavoidable principally from his inability to make the mortgage payments following his ASG employment termination,” the judges pointed out.
However, the court awarded Birdsall general damages in the amount of $15,000 for the emotional distress he suffered as the result of Sala’s acts violating Birdsall’s constitutional right and $30,000 in punitive damages because Sala’s actions were malicious and intended to cause Birdsall humiliation.
“Punitive damages appropriately serve as an example and discourage similar behavior from ASG employees in the future,” the judges said and cited a 1996 court case where the ruling at the tine states that “punitive damages are awarded for the sake of example and by way of punishment.”
The court also ruled that ASG is not held liable for the damages awarded in this case based on provision of the law.
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