COMMONWEALTH vs. RAFAEL JEREZ.

HENNESSEY, C.J. A judge in the Municipal Court of the City of Boston allowed the motion of the defendant, Rafael Jerez, to dismiss the complaint against him charging assault and battery upon a police officer. G. L. c. 265, Section 13D. The judge ruled that Jerez was immune from prosecution under art. 43 of the Vienna Convention on Consular Relations and Optional Protocol on Disputes, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 (Vienna Convention), [Note 1] as he was consul

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of the Dominican Republic exercising his consular functions at the time of the alleged assault and battery. The Commonwealth appealed to the Appeals Court pursuant to Mass. R. Crim. P. 15 (a) (i), 378 Mass. 882 (1979). We transferred the case to this court on our own motion. We affirm the judge's allowance of the motion to dismiss.

The judge made the following findings of fact. On April 18, 1982, Jerez, in his official capacity as consul of the Dominican Republic, was invited to a cultural function to be held in the Brighton section of Boston at 8:30 P.M. Jerez had agreed to attend this event and said he would bring the flag of his country and literature on the Dominican Republic. Jerez was to occupy a table which was set aside for him to display the literature.

Around 8 P.M. on April 18, 1982, Jerez went to the consulate offices located in the Statler Office Building at 20 Providence Street in Boston. At that time he failed to comply with the request to sign in made by the security guard on duty. Jerez proceeded to the floor where his office was located, intending to pick up the flag and literature, and left the building shortly thereafter. The security guard feared that Jerez was a trespasser and alerted a police officer who was across the street from the building. The officer approached Jerez while he was speaking to one Roberto Noguera, an official of the Colombian consulate, who was seated in an automobile. An altercation then began in which the officer struck Jerez and Jerez began to struggle with the officer. Jerez was placed under arrest for assault and battery on a police officer.

Based on these findings of fact the judge found that Jerez was engaged in his official capacity as consul of the Dominican

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Republic, intending to participate in a cultural affair, at the time of the alleged assault and battery. Accordingly, the judge ruled that Jerez was immune from prosecution under arts. 5, 29, and 43 of the Vienna Convention. The sole issue [Note 2] now before this court is whether at the time of the alleged assault and battery Jerez was acting in his official capacity as consul of the Dominican Republic for the purposes of immunity from prosecution under art. 43 of the Vienna Convention. We proceed to examine whether the judge's ultimate finding that Jerez was engaged in his official capacity as consul of the Dominican Republic at the time of the altercation was correct, and whether the judge's ruling that Jerez was immune from prosecution was correct.

The Vienna Convention entered into force with respect to the United States on December 24, 1969. Article 43 provides that "[c]onsular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions" (emphasis added). See note 1, supra. The Commonwealth asserts that Jerez is not immune from prosecution under art. 43 because the alleged assault and battery is too far removed from Jerez's function as consul.

Article 5 of the Vienna Convention defines activities considered "[c]onsular functions." It states in part that "[c]onsular functions consist in: . . . (b) furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention . . . ." 21 U.S.T. 82-83. In applying this provision to the facts before us, "[t]he clear import of treaty language controls unless `application of the words of the treaty according to

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their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.'" Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180 (1982), quoting Maximov v. United States, 373 U.S. 49, 54 (1963). The language of art. 5(b) defines "[c]onsular functions" in general terms inviting flexible construction. The clear import of such language as "furthering the development of . . . cultural . . . relations" is that it not be construed restrictively. "[A] narrow reading of the treaty would be inconsistent with its apparent purpose to eliminate the last vestiges of the notion that a consul was simply a `commercial representative.'" Heaney v. Government of Spain, 445 F.2d 501, 505 (2d Cir. 1971). Applying art. 5(b) in a manner consistent with this clear import is appropriate, since doing so will foster the underlying purposes of the Vienna Convention to promote harmonious international relations. [Note 3]

The judge was warranted in concluding that Jerez was seeking to further cultural relations between the Dominican Republic and the United States, and engaged in his consular capacity, at the time of the alleged assault and battery. The judge found that Jerez planned to attend a cultural gathering

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that night at 8:30 P.M., where he would display his national flag and distribute informational literature, that pursuant to this end, Jerez went to his office building at approximately 8 P.M. to pick up his national flag and literature, and that the alleged assault and battery occurred immediately after he left the building which houses his office and while he was talking with a Colombian diplomat. Jerez, therefore, according to the judge, was proceeding to the cultural gathering, after making a stop necessary to fulfil his consular function when the conflict ensued. The judge's findings support his conclusion that Jerez was in the exercise of his consular function.

Other courts interpreting the Vienna Convention have reached similar results. The Court of Appeals for the Second Circuit in Heaney v. Government of Spain, 445 F.2d 501, 504-505 (2d Cir. 1971), interpreted arts. 5 and 43 of the Vienna Convention. The plaintiff in Heaney brought an action against the government of Spain and one of its consular representatives for breach of contract and tortious inducement to enter a contract which the defendants did not intend to perform. Id. at 502. The plaintiff had entered into an agreement with the defendants pursuant to which he would conduct anti-British propaganda in consideration of a sum of money. The defendants sought dismissal of the complaint based on Spain's sovereign immunity and its consul's consular immunity. The motion was allowed and the ruling was upheld by the Court of Appeals. The plaintiff challenged the consular immunity defense alleging that anti-British activities conducted in the United States fall outside normal consular duties. Taking a broad view of consular duties under art. 5, the court rejected this assertion, and concluded that the consular representative's alleged conduct was not actionable.

The scope of a consul's functions and consular immunity also was discussed in Waltier v. Thomson, 189 F. Supp. 319, 320-321 (S.D.N.Y. 1960). Waltier was decided before adoption of the Vienna Convention. Nevertheless, the case provides guidance concerning the scope of consular immunity.

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The plaintiff in Waltier alleged that a Canadian consular official "made false statements which induced plaintiff to immigrate to Edmonton, Alberta, Canada." Id. at 319. The court stated: "A consular official is immune from suit when the acts complained of were performed in the course of his official duties." Id. at 320. The court then found the consular official's job was to encourage immigration to Canada, and ruled that the consul "was acting in the course of his official duties," id. at 321, in making the statements. Dismissing the complaint, the court found allegedly tortious conduct not actionable because of consular immunity. Id. at 320-321.

Finally, an Illinois appellate court in Illinois Commerce Comm'n v. Salamie, 54 Ill. App. 3d 465, 474 (1977), has discussed the scope of consular immunity. Focusing on art. 55(1) of the Vienna Convention, [Note 4] which requires consuls to respect laws of the receiving State, the court stated, "[Article 55 (1)] cannot be construed to mean that the doing of a single illegal act takes the activity outside the scope of the consular functions except where specifically so provided in article 5." Id. But see State v. Killeen, 39 Or. App. 369, 374-375 (1979) (followed State Department's position in finding that traffic violation is not within scope of consular immunity). We find no specific provision of art. 5 or other authority which takes Jerez's alleged assault and battery outside the scope of his consular functions.

Although we reach our conclusion in this case under the Vienna Convention, common law agency principles are instructive in analyzing whether Jerez was acting within the scope of his consular function at the time of the alleged assault and battery. We long have recognized that acts not strictly necessary for fulfilment of an agent's duties nonetheless

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may fall within the agent's scope of employment. See Pigeon's Case, 216 Mass. 51, 54 (1913); Hayes v. Wilkins, 194 Mass. 223, 226-227 (1907). The scope of an agent's authority is not construed restrictively in this Commonwealth, see Pridgen v. Boston Hous. Auth., 364 Mass. 696, 714 & n.10 (1974), and on several occasions we have considered whether an intentional tort committed by an agent was performed within the scope of his employment. Miller v. Federated Dep't Stores, Inc., 364 Mass. 340, 345-350 (1973). Orasz v. Colonial Tavern, Inc., 362 Mass. 881 (1972). Hobart v. Cavanaugh, 353 Mass. 51, 52-53 (1967). Thompson v. Beliauskas, 341 Mass. 95, 98 (1960). Cf. Davis v. DelRosso, 371 Mass. 768, 772 (1977). We have found such intentional torts within the scope of employment in a variety of situations. Orasz v. Colonial Tavern, Inc., supra (bartender's battery of patron). Suckney v. Bert P. Williams, Inc., 355 Mass. 62, 63-65 (1968) (truckdriver's helper's battery of bystander). Hobart v. Cavanaugh, supra (truckdriver's battery of service station attendant). Rego v. Thomas Bros., 340 Mass. 334, 335 (1960) (public highway construction superintendent's battery of bystander). Thompson v. Beliauskas, supra (use of force by bartender against patron). See Dwyer v. Hearst Corp., 3 Mass. App. Ct. 76, 79 (1975) (truck driver's battery of person blocking passage).

To determine whether the intentional tort of an employee occurred within the scope of his employment "[w]hat must be shown is that the employee's assault was in response to the plaintiff's conduct which was presently interfering with the employee's ability to perform his duties successfully." Miller v. Federated Dep't Stores, Inc., supra at 350. While Miller addressed employers' liability for acts by employees, we think that the standard set forth there applies in the context of the present case as well. Jerez was planning to attend a cultural gathering at 8:30 P.M. on April 18, 1982. He went to his office around 8 P.M. intending to get his national flag and some literature concerning the Dominican Republic. The alleged assault and battery occurred immediately

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after Jerez had left the building and while he was speaking to an official of the Colombian consulate. The police officer's actions interfered with Jerez's unimpeded ability to attend the scheduled cultural gathering. Accordingly, Jerez's alleged wrongful conduct occurred in response to conduct which was presently interfering with his ability to exercise his consular functions successfully. Under the agency principle established in Miller, therefore, Jerez was acting within the scope of his authority when the altercation occurred. See Dwyer v. Hearst Corp., supra; Manning v. Grimsley, 643 F.2d 20, 25 (1st Cir. 1981).

The Commonwealth also refers us to doctrines of official immunity developed in connection with actions by public officials. We express no opinion on these doctrines as we resolve this case under the language of the Vienna Convention and well-settled principles of agency law. [Note 5]

There was no error in the judge's finding that, at the time of the alleged altercation, Jerez was engaged in the exercise of his consular function as consul of the Dominican Republic, and there was no error in the judge's ruling that Jerez, therefore, is immune from prosecution. The motion to dismiss was properly allowed.

So ordered.