2017 WL 2497063 (Mash. Pequot Tribal Ct.)
Only the Westlaw citation is currently available.
Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT TRIBAL NATION.
May 30, 2017.
MEMORANDUM OF DECISION
THOMAS J. LONDREGAN, Judge.
*1 In a casino setting, with both security and surveillance camera coverage, it is not unusual for the Court to receive a video of the entire incident at issue as an exhibit at trial. One might think it would be easy to see where the fault lies. One would be mistaken. The appropriate use of force is the focal point of this case. Both parties presented conflicting expert testimony on the question of the use of force during an arrest. The Court must follow the rule of law and determine if the Plaintiff has proved his case by a preponderance of the evidence. Hazard v. MPGE, MPTC–CV–PI–2009–120, 2016 WL 589519 at *2 (Tribal Ct. Feb. 3, 2016); Payne v. Dames, 4 Mash.Rep. 193, 194 (2004). If the evidence is equally balanced or in equipoise then the Plaintiff has not met his burden. Id.
II. STATEMENT OF FACTS
The Plaintiff, Anthony DiMartino, along with his brother, Salvatore DiMartino, and other friends, was visiting the Shrine Nightclub at Foxwoods. In the early hours of December 8, 2013, Salvatore, who had become intoxicated, was removed from the club by security and asked to return another night. He insisted on being readmitted and an argument ensued with security personnel in the hallway outside the entrance to the nightclub. Tribal Police Officer Gary Coates and State Trooper Jason Deojay, who had been posted to the area, observed the altercation. When the argument escalated, Trooper Deojay intervened and tried to persuade Salvatore to return on another night; Officer Coates stood by. Deojay warned Salvatore that he would be arrested if he did not comply.
When Salvatore continued to conduct himself belligerently, Trooper Deojay moved in to make an arrest. As the trooper did so, the Plaintiff moved towards the arresting officer in an attempt to defuse the situation. He stepped between his brother and Trooper Deojay. At this moment Trooper Deojay was attempting to direct Salvatore away from the entrance of the nightclub to the wall on the left side of the entrance doorway. The Plaintiff was with his brother outside the entrance area. Officer Coates was across the hallway and to the right of the entrance. Thinking that the Plaintiff was about to interfere with the arrest, Officer Coates, who had been observing the events, grabbed the Plaintiff from behind, pulled and swung him around, bringing him to the ground. Plaintiff subsequently brought this action, claiming that Officer Coates, and by extension the Tribe, had been negligent in handling the events on December 8. Specifically, the Plaintiff claims that Officer Coates used excessive force in subduing him, as a result of which the Plaintiff suffered injuries.
Standard of Care
At the outset, the Court notes that the parties and their experts have relied upon the United States Supreme Court case of Graham v. Connor, 490 U.S. 386 (1989). While this Court may choose to be guided by it, Graham deals with a 42 U.S.C. § 1983 claim for use of excessive force. Claims under § 1983 must be tied to “federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979). Specifically, the analysis of a § 1983 use of excessive force claim “begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.” Graham at 394. There is no constitutional or civil rights violation alleged in this case, nor has the Plaintiff raised an issue under the Mashantucket Pequot Civil Rights Code. This is a negligence action, governed by the principles of ordinary negligence. This distinction is important even if the standard of care employed in this case is identical to the one used in Graham. The Court will consult Graham to the extent that it does not impose a greater duty on the Defendant than ordinary negligence.1
*2 To prevail on a cause of action in negligence, the Plaintiff has the burden to show that (1) the Defendant owed a duty of care to the Plaintiff; (2) the Defendant breached that duty of care; (3) the Defendant’s negligent acts constituted both the factual and proximate cause of the Plaintiff’s injuries; and that (4) the Plaintiff suffered actual damages. Celentano v. MPGE, 6 Mash.Rep. 189, 191–192 (2014); Hazard v. MPGE, MPTC–CV–PI–2009–120, 2016 WL 589519 at *2 (Tribal Ct. Feb. 3, 2016). It is for the Plaintiff to prove these elements by a preponderance of the evidence. Hazard at 2016 WL 589519 at *2. Under the principles of negligence, the duty owed by Officer Coates to the Plaintiff was to use reasonable care in securing him. Reasonable care in this case means not to use force greater than that which was necessary to restrain the Plaintiff. As to breach, the Court is called upon to determine whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. See Wilson v. Layne, 526 U.S. 603, 615 (1999). The general rule is that an officer may employ such force as he reasonably believes to be necessary under the circumstances. See Perez v. MPGE, 3 Mash.Rep. 288, 292 (2001); Martyn v. Donlin, 151 Conn. 402, 412 (1964); D’Ambra v. Maikshilo, 12 Am. Tribal Law 216, 223 (Mohegan Ct.2014). This also was the standard under which Officer Coates knew he was operating, since it is set forth in the Guidelines to the Mashantucket Pequot Tribal Police. See Plaintiff’s Ex. 2, Section IV. Thus to establish that Officer Coates breached his duty of reasonable care, the Plaintiff must show by a fair preponderance of the evidence that Coates could not have reasonably believed that the force used to restrain the Plaintiff was necessary in the circumstances.
Plaintiff claims that the Tribe is negligent through respondeat superior because Officer Coates restrained him through “excessive and unreasonable force.” Plaintiff’s Amended Complaint ¶ 4. He asserts that his injuries were the proximate result of said force. Defendant claims that the force employed was reasonable given the short space of time within which Officer Coates had to act. Defendant further contends that the Graham standard forbids second-guessing Officer Coates’s decision.
Defendant’s liability turns on whether Coates could have reasonably believed that the force he used to restrain the Plaintiff was necessary. Having studied the evidence, the parties’ experts differ on that central question. The Plaintiff’s expert, Michael Gugliotti, agreed that it was proper for Coates to arrest the Plaintiff for interfering with Salvatore’s arrest by Trooper Deojay. Mr. Gugliotti believes, however, that the amount of force used by Coates in making the arrest was excessive. According to Mr. Gugliotti, Officer Coates engaged in a two-step maneuver. The first of these steps was grabbing and controlling the Plaintiff. It is at this point that Gugliotti believes Coates had control of the Plaintiff. The second step was pulling the Plaintiff back, swinging him around and throwing him to the floor “like a ragdoll.” In Mr. Gugliotti’s opinion, Coates had control of the Plaintiff at the end of the first step, and thus the second step was unnecessary. For this reason Mr. Gugliotti considers the second step to constitute excessive force. He testified that the move employed by Officer Coates is not taught during a police officer’s training. He demonstrated for the Court two maneuvers that are commonly taught to officers and employed by them in similar situations. Mr. Gugilotti stated that while officers sometimes employ tactics they are not trained to use, they do not do so when faced with a subject who does not offer any resistance. In Mr. Gugliotti’s opinion, the Plaintiff was not resisting at the time Officer Coates secured him, which is another reason why the force employed was excessive.
*3 Defendant’s expert, David O’Laughlin, testified that the use of force by Officer Coates was objectively reasonable under the circumstances. In his opinion, Officer Coates had to react to a situation that called for instant reaction. He considered that Coates’s perception was based on Salvatore DiMartino’s resistance to Trooper Deojay, which Coates was observing. When the Plaintiff attempted to step in between Deojay and Salvatore, Officer Coates considered that a threat to Deojay and an interference with the arrest; this is what led to the use of force. In these circumstances, Mr. O’Laughlin found Officer Coates’s reaction to be reasonable and appropriate. Mr. O’Laughlin testified further that the tactic used by Officer Coates looked like a two-step maneuver because of how quickly events unfolded. However, in his opinion, Officer Coates only employed a one-step move, pulling the Plaintiff back from Deojay and down to the ground. He demonstrated this for the Court by playing the security camera footage frame by frame and describing how the move was a single act of pulling the Plaintiff away from Deojay and down to the floor. Thus Mr. O’Laughlin opined that Officer Coates did not have control of the Plaintiff before they both went down to the ground.
Both witnesses are experts in their field and presented compelling testimony on the quality of the maneuver used by Officer Coates. They are in agreement that Officer Coates had to react quickly, that some form of force was necessary, and that the totality of the circumstances should be taken into account in determining whether the force used was excessive. There is also no dispute that the tactic used by Coates is not taught to officers during training. The experts disagree, however, on whether the tactic used was one that the situation called for. More specifically, while the Plaintiff’s expert acknowledges that it was appropriate to grab and pull back the Plaintiff, he maintains that the extra step of swinging the Plaintiff around and throwing him to the floor is the excessive part of the tactic. The Defendant’s expert does not believe that Coates’s maneuver can be dissected in this manner. He believes that it was a single move, given the short span of time, and was justified under the circumstances. Thus whether Coates reasonably believed he used no more force than necessary to subdue the Plaintiff, translates into whether he used a one or two-step maneuver.
This is critical, because if it was a two-step maneuver, then Officer Coates likely had control of the Plaintiff before the Plaintiff was thrown to the floor. This would put in doubt whether Coates could have reasonably believed that throwing the Plaintiff to the floor was necessary. Coates’s own subjective perception as to the amount of force that was necessary is important to this inquiry. Once this is known, it must be considered under the objective standard of whether he could have reasonably applied such force in the circumstances. See Graham, 490 U.S. at 396–397 (“The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene ... the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them”); see also Perez, 4 Mash. at 292 (court considering the security officer’s subjective calculation as to the force necessary and then testing it for objective reasonableness). The first step in this inquiry therefore, is to consider whether Coates thought he used a one or two-step approach.
*4 In his deposition, Officer Coates describes his own maneuver thus:
I, not knowing who it was, just merely grabbed the individual and pulled him basically away from the Trooper’s area [sic]. And then, so basically pulled him around and turned him around, away from the situation [sic]. And that’s when he went to the ground, when I was trying to control him.
Coates’s Deposition, page 18. When asked to elaborate, Coates testified that the Plaintiff went down to the floor with the momentum of being pulled back and turned around. Id. at 31. This suggests to the Court a one-step move. In his statement after the incident, Officer Coates recorded that he pulled the Defendant away from interfering with Trooper Deojay. Plaintiff’s Ex. 8, Page 1. This too, shows that in his own mind, Coates was removing the Plaintiff away from Detective Deojay. In other words, Coates thought he was performing the single-step act of pulling the Plaintiff away. His perception of the threat level was formed based on Salvatore’s combative behavior, possible attacks from people exiting The Shrine, Trooper Deojay’s safety and, as he saw it, the Plaintiff’s move to interfere with the arrest. At the same time, Officer Coates acknowledges that the Plaintiff offered no resistance (Deposition, page 60), that he did not see Plaintiff make physical contact with Deojay (Deposition, page 29), and that he did not use a maneuver he had been taught during training (Deposition, page 49). Officer Coates also exceeded the Plaintiff in weight and size. The Officer standing at 6 feet and weighing 200 pounds would not have considered the 5′4, 135 pound Plaintiff to be a threat.
This leads to the objective part of the inquiry. Was it reasonable, under the above circumstances, for Coates to engage in a “one-step maneuver” to pull the Plaintiff away from an arresting officer and his combative subject? The Court must consider the totality of the circumstances in deciding whether Officer Coates used reasonable force to deal with the threat he perceived. The “action” was moving away from Officer Coates and he had to cross the hallway to follow it. When Trooper Deojay placed Salvatore under arrest and moved him to the wall of the hallway, the Plaintiff interfered with the arrest. At that point Officer Coates reacted by pulling the Plaintiff in a one hundred and eighty degree (180°) direction to extricate him from between the arresting officer and his brother. Upon review of the security camera footage, Coates’s testimony as to his perception of the threat level, and the testimony of the experts, the Court cannot conclude that the use of force was excessive. Officer Coates perceived the threat to emanate not from the Plaintiff, but from the situation as a whole. His testimony indicates that he was wary of people exiting the Shrine as well as Salvatore’s combative behavior, who was still resisting arrest. It was at this point that the Plaintiff moved between Trooper Deojay and Salvatore. Coates, standing nearby, but to the rear of the Plaintiff, had to react at that instant. His reaction was motivated by the urgent need to pull the Plaintiff back away from Deojay and Salvatore. As recorded in the video footage, this is what he actually did.
*5 Officer Coates can be seen grabbing the Plaintiff and pulling him away from the altercation and down to the floor. This happened in less than four seconds from when the Plaintiff began to interject himself into the arrest of his brother and when the Plaintiff hit the floor, which means Coates probably had even less time to react. Under these circumstances, it would be somewhat artificial for the Court to divide the maneuver into a reasonable part (controlling the Plaintiff) and one that is unreasonable and excessive (throwing him to the ground). Doing so would be the classic case of substituting an instant decision made on the scene, with one that is carefully choreographed with the benefit of 20/20 hindsight. The Court cannot conclude that the force used by Officer Coates was excessive and unreasonable. While the tactic employed by Officer Coates is not commonly recognized, that in itself does not make it unreasonable. It is also true that Coates could perhaps have employed another tactic. He could, as Trooper Deojay had done, have moved the Plaintiff against the wall. However, the question before the Court is whether Coates could have reasonably believed that the force he in fact used was necessary in the circumstances. The answer to that question can be yes, notwithstanding the myriad other tactics that Coates could have employed but did not.
Based on the foregoing, the Court finds that the use of force by Officer Gary Coates in restraining the Plaintiff was not excessive. The Court finds for the Defendant, Mashantucket Pequot Tribe, on all issues and enters judgment in its favor.
There is no special duty imposed by statute and so that leaves the Court with ordinary negligence.