law enforcement

I examined a case for the Connecticut Law Tribune that could test the legal contours of the right to use drones in newsgathering:

A Connecticut television photographer's federal lawsuit could shed some legal light on how far journalists can go to record police activity and what rights they might have to use drones to gather news.

Photographer Pedro Rivera, who works on an on-call basis for WFSB-TV, took his remote-controlled drone — which weighs 2 1/2-pounds and is propelled by four rotors — to the scene of a serious motor vehicle accident in Hartford on Feb. 1, 2014. While flying the camera-carrying drone 150 feet above the accident scene and recording police activity, Rivera, in court documents, says he personally was "standing in a public place, operating his device in public space, observing events that were in plain view."

Nevertheless, he says uniformed members of the Hartford Police Department surrounded him, demanded that he stop operating his drone over the accident scene and told him to leave the area. According to Rivera's court filings, the question at hand is not whether he simply has "the ability to operate the drone somewhere; it is the ability to operate the drone around newsworthy events."

While at the Feb. 1 accident, Rivera was not working for WFSB, but he had provided drone footage to the station in the past, according to court papers. He argues that the police actions violated his Fourth Amendment right to be free from unreasonable seizures and his First Amendment right to freedom of expression. The lawsuit names Hartford police Lt. Brian Foley and Sgt. Edward Yergeau, who are being sued in their individual capacities.

According to the lawsuit, Foley contacted one of Rivera's supervisors at WFSB to complain that the photographer had interfered with the accident investigation and had compromised the crime scene's integrity. As a result, Rivera says he was suspended from work for at least one week.

In the most recent round of briefing in the case, Nathalie Feola-Guerrieri, senior assistant corporation counsel for Hartford, argued in court papers filed July 31 that the photographer's complaint should be dismissed.

For one thing, she wrote, "there is no factual indication that it was plaintiff's recording of police activity, rather than plaintiff's intrusion with his equipment into the denoted crime scene area where no other members of the public were allowed to enter, ... that motivated Foley's contact with his employer."

Further, she stated, the two police officers have, as public officials, qualified immunity from any lawsuit stemming from their on-the-job decisions. While police are required to follow the law and not bar legal newsgathering, Feola-Guerrieri wrote there have been no decisions from the U.S. Supreme Court or the U.S Court of Appeals for the Second Circuit "that would support the existence of plaintiff's right to operate his drone equipment in and directly above the denoted crime scene area while an active investigation is being conducted."

Even if courts eventually recognize the right of journalists to use drones to record a crime scene, the Hartford officers shouldn't be punished retroactively for grounding Rivera's drone. In an interview, Feola-Guerrieri said that "it could very well be that it's perfectly OK for [Rivera to operate his drone above the accident scene]. It's undetermined at this point."

'Lawful Vantage Points'

The photographer's lawyer acknowledges that the U.S. Supreme Court has not directly addressed the right to record police activity but cites others federal court decisions supporting a right to record police activity. Lawful news gathering, including news gathering using drones, can be curbed only if police reasonably believe that journalists are interfering with law enforcement activity, Bethany attorney Norm Pattis said in court papers.

As a result, the individual police officers are not entitled to qualified immunity in this case because "the right to photograph the police from lawful vantage points … is established," Pattis wrote.

While Rivera and his lawyer acknowledged that municipal governments may not be sued solely for constitutionally questionable actions by employees, they said they can show the Hartford Police Department has a widespread policy aimed at stopping the public from recording police activity. The city's reply is that a single incident involving officers below the "policymaker level" does not mean the courts can infer the city has a policy to curb the public's and press's First Amendment rights to record police activity.

James Bergenn, a Shipman & Goowin attorney who co-chairs the Connecticut Bar Association's Media and the Law Section, said that, on one hand, drones are a non-intrusive way for the public to monitor police investigations because they operate in space law enforcement personnel aren't using.

On the other hand, Bergenn said that allowing drones to go into the airspace above crime scenes could lead to the public learning facts about an investigation that only the perpetrators would know. Investigators often want to keep such information out of the public limelight. The possession of investigative facts is a "truth detector, a truth insurer" for law enforcement, Bergenn said.

The right to use drones in newsgathering also implicates the Fifth Amendment right to due process, Bergenn said. The courts will have to balance the strict scrutiny given to Fourth and Fifth Amendment rights with the "need in an orderly society for law enforcement to be able to act unimpaired in response to dangers to public safety," Bergenn said.

U.S. District Judge Vanessa Bryant has not yet ruled on the motion to dismiss Rivera's complaint.

The Federal Aviation Administration is still developing regulations for use of drones in American airspace, including for journalistic purposes. According to USA Today, the FAA is supposed to have a plan in place for the unmanned devices to fly along with airplanes by September 2015, but the rulemaking process is lagging behind schedule.

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.