Cultivated Compendium

Here's a version of the article I wrote for the Connecticut Law Tribune about what may be the first plaintiffs' victory in an excessive force case involving a police officer from the Mohegan Tribe or the Mashantucket Pequot Tribal Nation:

When a drunken bar patron gets forcefully subdued by a police officer and wins a five-figure verdict as a result, it's usually not big news. But move a similar confrontation to an American Indian casino, and that’s a different story.

A patron of the Mohegan Sun Casino has prevailed in what may be the first successful excessive force claim against a tribal police officer in Connecticut, according to the plaintiff's attorney who won the case.

Mary Puhlick, Puhlick & Cartier, in Norwich, regularly practices in the courts of both the Mohegan tribe and the Mashantucket Pequot Tribal Nation. The recent $92,344 judgment rendered in favor of her client "is the first [successful] tort claim in either tribal court involving use of force by a police officer," Puhlick said in an interview.

Mohegan Gaming Disputes Court Chief Judge Paul Guernsey, in an April 28 opinion, rule that arresting officer Todd Maikshilo was not justified in using a control technique that resulted in serious ligament and bone damage to the plaintiff's leg.

Even after calling plaintiff Jerry D'Ambra Jr.'s behavior "drunken and obnoxious," Guernsey said he was entitled to more than $32,000 in actual damages and $60,000 in non-economic damages. At the time, D'Ambra worked as the equipment manager in his family's construction business and was attending flight school.

D'Ambra, then 20, visited Mohegan Sun with an older friend, Merrick Bolcum, then 49, almost five years ago in order to attend a concert of country singer Eric Church. D'Ambra reached his drunken state by consuming three large rum and Cokes poured into large Dunkin' Donut travel mugs, according to the written opinion.

Later in the evening, D'Ambra threw up in the men's room and security officers took him and his friend to Krispy Kreme at the casino premises for coffee and doughnuts. D'Ambra and Bolcum were both given a Breathalyzer test, and the results revealed they were both unfit to drive. They were both told to wait two hours before heading back home to Rhode Island.

After the plaintiff said he was going to get sick again and needed fresh air, Security Officer Edward Martin walked outside with him. Martin testified that D'Ambra got increasingly belligerent. Martin called for a tribal police officer. Maikshilo was the first officer to arrive.

Maikshilo testified that D'Ambra swore at the two of them, challenged them to Taser him and put both hands behind his back in a dare to the officers to arrest him.

After Maikshilo and another tribal officer arrested D'Ambra, they said the the plaintiff attempted to lunge away. Maikshilo said he needed to bring D'Ambra under control for his own safety, and that he applied his right foot to the rear of D'Ambra's left calf, bringing the man down onto Maikshilo's extended right leg.

"Maikshilo conducted a memorable in-court demonstration of the effectiveness of this maneuver on plaintiff's counsel," the judge commented in his opinion. "His skill in performing it was impressive."

D'Ambra offered contradictory testimony. He said he encountered Maikshilo on his way out of the casino, and that he ignored the officer's request to go to the men's room. He acknowledged the Taser challenge, but denied trying to run away from the officers. He said he leaned over, put his hands on his knees, got whacked on his knee from behind and fell forward with his face landing on the mulch. "'That's when I got loud, after I was on the ground and handcuffed,"' D'Ambra testified.

If D'Ambra's account is correct, Guernsey said, it is unsurprising that there was no surveillance video of the incident because it would have taken place off to the side of one of the casino's valet entrances. The officers testified that the incident took place closer to the front of the valet entrance, making "the lack of video surveillance puzzling," Guernsey said.

There was probable cause to arrest D'Ambra for breaching the peace, the judge said. But the question was if there was probable cause for the officer to use the control maneuver to take him down.

The judge found D'Ambra's testimony persuasive in finding the controlling maneuver — called a rear sentry takedown — constituted excessive force by the officer. Guernsey also credited the testimony of defense expert Reginald Allard, who taught, for 23 years, the rear sentry takedown and other methods of control at the Connecticut State Police Academy.

Allard testified that he has never had an injury result from recruits practicing rear sentry takedowns. "Hundreds, thousands of times that I've applied it, had it applied to me, to the recruits, we've never had an injury based on the strike itself causing injury to the recruit," the defense expert testified.

The result of Maikshilo's maneuver was a torn anterior cruciate ligament (ACL) and a fractured tibia. The plaintiff needed surgery in July 2009 to remove a loose piece of bone almost two inches in length.

The Mohegan Torts Code provides the tribe and its officials with immunity from most lawsuits. But the judge said that immunity did not apply in this case. He went on to apply the Fourth Amendment and its reasonableness standard in determining whether the tribal officer used excessive force on the plaintiff.

"The court finds that Maikshilo's decision to perform the modified rear sentry takedown satisfies the standard of objective reasonableness… [But] the force applied to the back of D'Ambra's knee, sufficient to break off a two-inch piece of bone within the knee … was far beyond what was objectively reasonable under the circumstances faced by Maikshilo and constituted a tort within the limited waiver of sovereign immunity in the Mohegan Torts Code," Guernsey said.

Puhlick said it was interesting that the judge chose to apply federal constitutional law even though the Mohegan tribe — while it has adopted Connecticut common law — has not adopted the U.S. Constitution. The Mohegan tribe has its own constitution.

Defense counsel Robert Rhodes, of Halloran & Sage, in Westport, did not respond to a request for comment, including on whether his clients will appeal. Appeals are heard by the other four judges of the tribal court sitting en banc.