richard garrity, millis, ma. legal opinion report- wynn- las vegas- nov. 2013

1

2 3

4

NADER DARWISH- Plaintiff 5

MATHIAS NKWENTI- Plaintiff 6

7

VS. 8 9

WYNN LAS VEGAS, LLC 10

Defendant 11

12

Prepared for: 13

Mr. Andre Lagomarsino, ESQ. 14

Plaintiff’s Attorney 15

9555 South Eastern Avenue, Suite 210 16

Las Vegas, Nevada, 89123 17

18

Prepared by: 19

Mr. Richard Garrity, Principle 20

(Corporate Resource Training Group) 21

AKA- CRTG Boston 22

1032 Main Street 23

Millis, Massachusetts. 02054 24

25

November 14th

, 201326

Nkwenti/ Darwish VS. Wynn Las Vegas LLC

Corporate Resource Training Group- CRTG Boston

813-260-0093

3

OPINION SUMMARY REPORT: 1

2

INTRODUCTION: 3

4

On September 6th

, 2013, Attorney, Mr. Andre M. Lagomarsino, ESQ. of 5

the Parker, Scheer, Lagomarsino law firm, Las Vegas, Nevada, retained me, 6

Richard C. Garrity, as a security/ police use of force consultant- expert 7

witness and security management specialist. Mr. Lagomarsino represents the 8

Plaintiffs in this action, Mr. Nader Darwish and Mr. Mathias Nkwenti. 9

10

It was tasked upon me and my responsibility, to thoroughly review the 11

documented and video evidence in this case and to submit an opinion as to 12

the culpability of the Las Vegas Casino/ nightclub employees of Wynn Las 13

Vegas, LLC and the corporation itself concerning the battery, detention, and 14

injuries to Mathias Nkwenti and Nader Darwish. Particular emphasis has 15

been placed on Mathias Nkwenti, who suffered more severe injuries. These 16

charges are the result of the alleged deliberate actions of Wynn Las Vegas 17

employees at The Tryst Night Club which is located within the Wynn Resort 18

and Casino located at 3131 Las Vegas Boulevard South, Las Vegas, Nevada- 19

89109. 20

21

I, Richard Garrity, have read, examined, and studied the list of documents, 22

statements, incident reports, submitted legal complaints, and viewed the 23

surveillance videos itemized on Attachment “A” of this summary opinion. I 24

am confident that I understand the legal scope and issues of this case and I 25

am knowledgeable of the issues set forth herein with a reasonable degree of 26

certainty & expertise. If I, Richard Garrity, are called as a witness, I could 27

and would with all due diligence, objectively testify to the merits of the 28

allegations stated in this legal action directed against Wynn- Las Vegas. 29

30

SUMMARY OF QUALIFICATIONS: 31

32

Pertinent to the complex issues in this case, I have worked at the Social Law 33

Library Boston (450,000 + volumes) for several years as a circulation & 34

reference clerk. I served as a Boston Special Police Officer (not sworn) in 35

the late 80’s into the early nineties which required 40 hours of classroom 36

instruction at the Boston Police Academy in Hyde Park, Massachusetts. I 37

was assigned primarily to that city’s residential housing projects. 38



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For the past 15 years, I have worked primarily in the private sector as a 1

corporate security director of high rise office towers and biomedical research 2

facilities. While working in this capacity, I was responsible for managing & 3

leading moderate to large security teams in a corporate environment. During 4

this time, I developed many unique emergency and training modules to 5

better train & develop the front line security officer and supervisor, and 6

management. I have written and authored over 25 security management 7

training, human resource management, and Use of Force procedures power 8

point presentations containing a minimum of 150 informational slides. I 9

have equally given lectures to fellow security managers & assistant 10

managers on subjects such as use of force guidelines, access control 11

procedures, and numerous emergency response procedures and action plans. 12

Additionally, I received Bomb Threat Response training from the Boston 13

field office of the Federal Bureau of Investigation (FBI) in 2002. 14

15

I have conducted numerous sexual harassment and sexual assault 16

investigations while employed in a special police officer capacity as well as 17

a corporate security director/ manager. All cases were successfully resolved. 18

Additionally, I am listed on Experts.Com as an expert on Human Resource, 19

Security Mgt, and Use of Force protocols. Expiration, October 2014. 20

21

Over the last 3-4 years, I have begun my own professional consulting 22

venture specializing in security management, human resource management, 23

and use of force guidelines for US law enforcement & private security. I 24

have also acquired additional experience working as a temporary special 25

detail supervisor for Allied-Barton Security in Tampa, Florida. I managed 26

and directed a team of 7-10 officers assigned to the national defense 27

contractor Raytheon- Network Centric Systems in Largo, Florida where I 28

held a confidential government clearance to enter and move within that 29

defense facility. 30

31

For additional background information regarding my education, training, 32

certifications, and experience, please refer to Attachment “B” in this 33

summary report. 34

35

COMPENSATION: 36

37

A minimum financial fee for my professional services in this particular case 38

is $2,500.00 retainer for complete review of the initial case file. An 39



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additional fee of $175.00 an hour for review of additional documents and 1

extended research in this case will be submitted. A fee of $250.00 per hour 2

will apply for travel time, conferences, site visits, providing testimony in 3

depositions and actual courtroom testimony (4 hour minimum). 4

5

This summary report will outline my professional opinion concerning the 6

allegations made in this litigation against Wynn- Las Vegas, LLC. The 7

report is subject to change upon additional factual evidence being presented. 8

9

SUMMARY OF THE INCIDENT: 10

11

The Plaintiff’s Nader Darwish (herein referred to as “Darwish”) and Mathias 12

Nkwenti (herein referred to as “Nkwenti”) entered the Tryst Nightclub in the 13

Wynn- Las Vegas Casino (herein referred to as “Wynn”) on or about July 14

23rd

, 2011, at approximately 00:05 to 00:30 hrs. Defendant Wynn is the 15

owner and operator of the Tryst Nightclub and direct employer of the resort 16

casino’s security personnel. While in the nightclub, Nkwenti and Darwish 17

consumed (one) alcoholic beverage each. Shortly thereafter, Nkwenti 18

proceeded to the bathroom and Darwish wandered over to an area outside 19

the “supposed” dance zone and began dancing with a female companion he 20

had just met. 21

22

At this point, a Wynn security officer approached Darwish (identified as 23

Warren Hasegawa- herein referred to as “Hasegawa”) and made the 24

following statement: “If I tell you to move again I am gonna throw your 25

ass out of the club”. Darwish protested and challenged Hasagawa’s charge 26

and inquired as to when the first warning was ever given. At this point both 27

Darwish and Hasegawa began a verbal disagreement about the situation. 28

Tension as well as aggression began to build between both parties. It appears 29

without dispute that up to this moment, neither man had placed there hands 30

on each other or were any threats of violence leveled. 31

32

Soon thereafter, Hasegawa motioned to another Wynn security official (a 33

bouncer) who was behind Darwish and began to rush him placing his hands 34

on him (the bouncer) and shoving Darwish backwards. Immediately 35

thereafter, several more bouncers and or security personnel identified as: 36

Robert Malone (# 42709), Robert Dziak, Erin Martinez (#46857), began to 37

surround and physically shove Darwish into a backroom. At this juncture, 38

Mathias Nkwenti came out of the bathroom and observed the confrontation 39



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with Darwish and the security personnel. Nkwenti tried to diffuse the fluid 1

situation and inquire as to why they were roughing up Darwish. Wynn 2

security personnel began to physically restrain Nkwenti as well when 3

Nkwenti began to become restless and deliver aid to his friend Darwish. The 4

altercation between both parties heightened when a Wynn security officer 5

was shoving Darwish out of the backroom into a hallway of the nightclub. 6

The security officer shoving Darwish out into the hallway allegedly made a 7

verbal threat and then (this is where the video surveillance initially begins of 8

the incident) and placed his hands on his chest (Darwish). Darwish reacted 9

after feeling threatened and pushed the security bouncer away from him in 10

what appears to be a defensive motion to the actions of the security bouncer 11

who clearly was manhandling Darwish according to the above average 12

quality of the video surveillance footage. As the situation has escalated a 13

swarm of bouncers begin tackling and assaulting both Darwish and Nkwenti. 14

15

As video footage illustrates, Wynn security personnel begin punching and 16

kicking Nkwenti, while Darwish is off to the far right being assaulted as 17

well. The incident is shorter for Darwish as it is for Nkwenti. Nkwenti in the 18

video surveillance is shown being punched, kicked, and choked by Wynn 19

security personnel. Additionally, in what appears to be a Tryst security 20

official, video clearly shows that while 2 security officials were on top of 21

Nkwenti, another Wynn security official began twisting and bending back 22

the ankle of Nkwenti. Both Nkwenti and Darwish both adamantly state that 23

during this whole episode, they were pleading with the bouncers that they 24

were trying to cooperate and to stop assaulting them. Nkwenti further stated 25

that one bouncer was choking him so hard that he almost “passed out” with 26

the bouncer in question allegedly stating “your gonna black out any second 27

now”. 28

29

Video footage shows that after the situation began to dissipate, 2 Wynn 30

security personnel, one holding Nkwenti down with his two hands pressed 31

hard against Nkwenti’s back & legs and the other Wynn bouncer holding his 32

hands down to the floor for over 3 minutes according to the speed counter of 33

the video surveillance. During this encounter, a Rayalty watch, valued at 34

$2,750 came off the wrist of Nkwenti and mysteriously disappeared. All 35

security personnel asked, stated that they did not know what had happened 36

to the designer watch. However, in the video footage, it is clear that one of 37

the security personnel slides the watch across the floor to another security 38

bouncer. This is factual and not opinion based. After the incident was 39



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winding down, another security manager, Deanno Zappia came out and 1

began hurling insults, swears, and threats at Nkwenti and Darwish when they 2

tried to complain of the brutal beating they had just received. 3

4

After the incident subsided, Nkwenti and Darwish produced identification 5

cards, agreed to pose for snap shots by Wynn security, were issued the 6

standard Nevada No Trespassing Admonishment 207.200 warning and 7

peacefully exited the premises without further incident. The location of 8

Nkwenti’s Rayalty watch was not determined or who had it prior to 9

Nkwenti’s and Darwish’s departure from the casino nightclub. 10

11

WYNN LAS VEGAS VERSION: 12

13

The position that Wynn Las Vegas holds is that their security personnel 14

acted on a whole, “reasonable” with Nkwenti and Darwish in their handling 15

of the two plaintiffs in the early morning hours of July 23rd

, 2011. In Wynn’s 16

(Craig R. Anderson, Esq- Marquis, Aurbach, and Coffing) answer to the 17

plaintiff’s complaint (causes of action), Wynn has stated the following 18

standard answer to all or portions of the complaint with: 19

20

In answering paragraphs 00 and 00, Defendant states that “it does not have 21

sufficient knowledge or information upon which to base a belief as to the 22

truth of the allegations contained herein”. Or the Defendant states: 23

“Defendant denies the allegations contained herein”. These answers are 24

given in reference to the following charges: 25

26

1. Assault (Against Wynn and Doe Guards) 27

2. Battery (Against Wynn and Doe Guards) 28

3. False Imprisonment (Against Wynn and Doe Guards) 29

4. Negligent Security (Against Wynn) 30

5. Negligent Hiring, Training, Supervision, and Retention (Against 31

Wynn) 32

6. Conversion (Against Wynn and Doe Guards) 33

34

Defendant Wynn also asserted the following defense to the allegations: 35

36

Second Affirmative Defense: 37

“The incident(s) alleged in the complaint, and any and all resulting damages 38

to Plaintiff’s, were proximately caused or contributed by Plaintiff’s own 39



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negligence, and such negligence was greater than the negligence, if any, of 1

Defendant” 2

3

Third Affirmative Defense: 4

“Defendant alleges that the occurrence referred to in the complaint, and all 5

injuries and damages, if any, resulting therefrom, were caused by the acts or 6

omissions of third party or parties over whom Defendant had no control”. 7

Fourth Affirmative Defense: 8

“That all times mentioned in the complaint, Defendant acted properly and 9

in good faith, and in accordance with all duties imposed by law, without 10

malice, either expressed or implied, and without oppression”. 11

Fifth Affirmative Defense: 12

“At the time and place alleged in the complaint, Defendant was without 13

negligence or other culpable fault on it’s part whatsoever”. 14

15

Sixth Affirmative Defense: 16

“That any damage claims by Plaintiffs are speculative, are not supported by 17

proof, and are not compensable as a matter of law”. 18

19

Seventh Affirmative Defense: 20

“Defendant alleges that it performed no acts or omissions relevant to the 21

subject matter of Plaintiff’s complaint on file herein such as would create 22

any liability or duty whatsoever on the part of Defendant”. 23

24

Ninth Affirmative Defense: 25

“Plaintiffs have failed to plead with sufficient specificity any violation of 26

codes, ordinances, regulations, statutes, or other laws”. 27

28

DEPOSITIONS: E. Martinez. W. Hasegawa. E. Pinheiro 29

30

All three Wynn security employees were deposed by Parker, Scheer, 31

Lagomarsino. The general consensus among all of the above mentioned 32

individuals in their depositions is that Wynn employees acted properly and 33

reasonably. They also contend that they acted in self defense from the 34

Plaintiffs. They all contend that use of force protocols were followed. This 35

holds true to Robert Malone, Dominic Tegano, Gil Verdugo, and Erin 36

Martinez who stated basically the same defense in their incident reports that 37

they all acted properly and within the scope of their duties. These individuals 38

were not deposed. 39



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In the Erin Martinez deposition, it is particularly noted on page 44 that the 1

following was stated by Mr. Martinez and documented: 2

Question: “Did you or Malone advise or attempt to advise the security 3

manager or supervisor of the situation prior to taking Mr. Darwish out of the 4

club?” 5

Answer: “No” 6

In the Warren Hasegawa deposition, it is particularly noted on page 25 that 7

the following was stated by Mr. Hasegawa and documented: 8

Question: (Use of Force training)- Were you ever trained that there are 9

certain types of actions that you’re not supposed to use when subduing or 10

otherwise ejecting a trespasser or disorderly customer? 11

Answer: Yes. 12

Question: Okay. What types of things were those actions; what types of 13

actions? 14

Answer: “Distance from the customer so no actual physical contact needs to 15

happen”. 16

This is noted as Hasegawa submits knowledge to the policy of keeping a 17

proper distance from the customer yet in statements given by various 18

participants, it was clear that Hasegawa was not keeping proper distance, but 19

almost toe to toe in distance with Mr. Darwish during the initial encounter 20

near the employee service area. 21

22



25

Question: (Use of Force training)- Anything else you can think of? And to 26

restate the question, were you ever trained that there are certain types of 27

actions that you’re not suppose to use when subduing or otherwise ejecting a 28

trespasser or disorderly customer? 29

Answer: “No”. 30

This is noted because casino security officers do have power on a consistent 31

level, to physically detain an individual with just cause. Use of force training 32

should unequivocally include “certain types of actions that you’re not 33

suppose to use when subduing any individual. 34

35



38



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Question: Okay. Do you remember signing any documents during the 1

course of your training aside from those checklists that I just mentioned? 2

Answer: No 3

Question: Okay. Did you ever receive Wynn’s security manual? 4

Answer: No 5

This is noted because all security personnel should be issued a copy of the 6

site procedures/ training manual or the very least, have read the manual and 7

signed off on an acknowledgment form that they understand it’s contents. 8

9



12

Question: Okay. Aside from the videos that you watched, were there any in 13

person demonstrations; for instance, did the instructor at the time go through 14

anything? 15

Answer: No 16

This is noted because the general premise from the description of the use of 17

force training class that Wynn security personnel are required to attend 18

consisted almost entirely of watching videos and a group like setting where 19

new hires went over review questions with a supervisor at the end of the 20

class. Mr. Hasegawa reveals that no demonstrations of any kind on the use 21

of force were introduced into the classroom curriculum nor was there any 22

type of employee testing (and grading) to satisfy the need that all 23

participants had retained a firm grasp & knowledge on the proper use of 24

force procedures, deployment, and general doctrine of utilizing use of force 25

methods. 26

27



30

Question: Okay. How far apart were the two instances that you talked to 31

him the first time and you talked to him the second time? (This is when 32

Hasegawa allegedly warned Darwish twice about moving out of the area). 33

Answer: About an hour. 34

Question: About an hour? 35

Answer: An hour, an hour and some minutes. 36

Question: Okay. So when you talked to him the first time, was it not in this 37

area? 38

Answer: It was the same exact area. 39



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This is noted as Mr. Hasegawa maybe engaging in deliberate deception. It 1

has been universally documented and unchallenged that Darwish and 2

Nkwenti entered the Tryst nightclub after 00:00- 00:15AM on July 23rd

, 3

2011. The incident started at around 00:35 hrs. That means it is impossible 4

for Hasegawa to have warned the Plaintiffs at some time before 11:30PM. 5



8

Question: Do you have any reason to believe Mr. Darwish was engaging in 9

any unlawful act prior to you speaking with him? 10

Answer: No 11

Question: Do you have any reason to believe he was engaging in a criminal 12

act? 13

Answer: No 14

15



18

Question: When you were involved (the initial encounter) I guess, did you 19

say to him, you know, “You have to leave now?” 20

Answer: No 21

Question: Okay. At any point did you clarify to Mr. Darwish why you were 22

ejecting him from the club? 23

Answer: No 24

This is noted as Mr. Hasegawa has revealed that no clear reason was given 25

as to why Darwish was being removed or that Darwish was informed as to 26

why he was being removed from the premises. 27

28

In the Erin Martinez deposition, it is particularly noted on page 31 & 32 that 29

the following was stated by Mr. Martinez and documented: 30

31

Question: Were you trained to deescalate a situation with a customer who 32

security perceives to be hostile before ejecting them from the club or using 33

force on him or her/ 34

Answer: Well, we weren’t trained, but, I mean, the general idea is we’re 35

not—you know, we’re supposed to try to deescalate. 36

Question: Okay. So that’s if you weren’t trained in that, how do you know 37

that? 38



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Answer: Well, our manager told us. I wouldn’t consider that training, 1

though. He just told us. 2

Question: Okay…. 3

Answer: …to try to deescalate. 4

Question: Do you remember getting any like reading materials on how to do 5

it or anything like that? 6

Answer: Not that I remember. 7

This is noted as use of force training is critical in the function of all casino/ 8

nightclub security personnel if they encounter violent or potentially violent 9

customers. However, equally important and vital is the additional training of 10

casino staff on how to deal with problematic and or violent individuals 11

through the course training of de-escalation tactics and techniques. More on 12

this area will be detailed in the summary opinion. 13

14

WYNN LAS VEGAS ADMINISTRATION ACTION: 15

16

The administrative action taken against one of the personnel involved lends 17

credence to the opinion being formed in this expert opinion summary. Just 18

11 days after the incident with the Plaintiff’s at Tryst nightclub. Officer 19

Robert Malone (#042709) was terminated for unreasonable excessive force 20

by Human Resource Manager Connie Ballew. The following was extracted: 21

22

Tim (Tim Lorenzen, Assistant Director of Nightclub Investigations) then 23

started asking questions. 24

He asked Robert (Malone), “Did you hit the guy?” 25

Robert responded that he didn’t remember. 26

Tim asked, “you don’t remember hitting the guy?” 27

Robert replied “No”. “I may have hit him, I’m not sure”. 28

Tim then said, “you don’t remember kicking him?” 29

Robert said “No”. 30

Tim then stated, “what would you say if I have this on video, you hitting and 31

kicking him. 32

Robert shrugged and stated again that he did not remember. 33

Tim then asked “Why did you hit him?” 34

Robert responded by saying he doesn’t know. 35

36

Connie Ballew concluded her interview summary with Robert Malone by 37

documenting the following: Investigations have reviewed the surveillance 38



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with decision makers at the VP level and it is the recommendation the 1

employee is terminated for using excessive force. 2

3

Additionally, an internal “Discharge Summary” report dated August 18th, 4

2011 made the following and inserted into Robert Malone’s employee file: 5

Incident Detail- “Video surveillance showed Robert inappropriately and 6

excessively punching the guest (three times) while the guest was already 7

restrained and subdued by other security personnel”. 8

9

WYNN LAS VEGAS CONTRADICTION: 10

11

During this termination hearing in regards to Robert Malone, the following 12

statements were noted in Miss Ballew’s report: 13

14

I (Connie Ballew) asked Robert if he was training on how to detain guests 15

and deescalate situations, Robert responding by saying yes. Tim asked 16

toward Gil (Verdugo) if the training was through PFC defensive tactics 17

training. Gil concurred. 18

19

This is of fair significance, as it has been stated by S/O Erin Martinez in his 20

deposition that no formal or even informal training was given in reference to 21

any de-escalation training procedures or protocols during his initial training 22

sessions or active employment. 23

24

SUMMARY OPINION: 25

26

Assuming the Plaintiff’s complaint is true, it is my opinion that there is 27

reasonable cause to put forth an opinion that the Tryst/ Wynn Las Vegas 28

security employees over reacted in handling the incident. By their 29

overreaction and poor judgment, they thereby exponentially escalated the 30

customer/employee situation to the point that excessive force was used 31

against the Plaintiff’s Nader Darwish and Mathias Nkwenti who were 32

assaulted, (kicked & punched), placed in a choke hold (Nkwenti), and had 33

one ankle almost to the point of being snapped while on the ground with 2 34

grown men on top of him (Nkwenti). This in addition to being taken into 35

custody and forcibly detained. 36

37

The actions of the Tryst employees involved in this incident, in my opinion, 38

demonstrated a deliberate indifference to the safety and consequences to the 39



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rights and welfare of the Plaintiffs. After reviewing the surveillance videos, 1

voluntary statements, reports, and case documentation, it is my professional 2

opinion that the Plaintiff’s were victims of excessive force and unlawful 3

detention by the defendant employees of the Tryst Nightclub. 4

5

In viewing the video footage as the incident unravels, it is evident to me that 6

as Darwish is being led out of the backroom, he is being pushed along and 7

manhandled by Defendant employee(s) and feels he has been verbally 8

threatened. It is absolutely without question, normal human nature to react in 9

a defensive mode when a person feels their safety is in danger or jeopardy. 10

Especially when your not aware of what you have done wrong (defendant 11

employees failure to advise plaintiffs of any club violations or violation of 12

the law) and you know you have done no wrong, it is human nature to resist 13

being deprived of your freedom and ability to freely move your arms, legs, 14

or your whole body for that matter. 15

16

The primary contention of the Defendants is that Tryst security personnel 17

(Warren Hasegawa) made repeated attempts and appeals to the Plaintiff, 18

Nader Darwish to move away from a service employee entrance area where 19

Darwish was briefly dancing with a female companion. This chain of events 20

is what apparently ignited the physical altercation incident that followed. 21

Darwish claims that he was asked only once to move away from this 22

particular area and that Darwish & Hasegawa got into a heated dispute when 23

Hasegawa was verbally aggressive and unprofessional, initiating the 24

encounter with: “If I tell you to move again I am gonna throw your ass out 25

of the club”. 26

27

In reviewing Warren Hasegawa’s deposition to the Parker, Scheer, 28

Lagomarsino law firm, he stated that he politely requested Darwish to move 29

several times from the service employee entrance area, and that between the 30

first and second warnings a time span of over one hour had passed between 31

both warnings. I find this to be untrue and not factual on the part of 32

Hasegawa. Mathias Nkwenti and Nader Darwish entered the Tryst nightclub 33

after 12AM on July 23rd

, 2011. This has not been disputed or challenged by 34

any parties involved in this litigation. The incident began at approximately 35

00:35 hours which means the Plaintiff’s were in the club less than a half 36

hour before the incident started. This contradicts Warren Hasegawa’s 37

assertion that he warned the Plaintiff’s twice to move from the area in 38

question. 39



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1

Darwish did not like the way he was being treated by Hasegawa and instead 2

of trying deescalate the matter, Hasegawa motioned to another bouncer for 3

assistance. This bouncer came over immediately and began to take physical 4

hold of Darwish and escort him to another part of the nightclub. With all this 5

happening, nobody was explaining to Darwish why he was being detained or 6

where they were taking him. These actions “alarmed” Darwish greatly. 7

Mathias Nkwenti, when exiting the bathroom area and looking for his friend, 8

Darwish, observed Nader Darwish being manhandled, detained, and 9

assaulted, instinctively reacted to give defense and aid to his friend who was 10

being deprived of his freedom and being roughed up by Tryst personnel. 11

12

Mathias Nkwenti while frantically trying to ask other security personnel 13

what was happening, was ignored and brushed aside. Nkwenti then reacted 14

and tried to peel Erin Martinez off of Darwish. This was a reasonable 15

reaction by Nkwenti to maybe diffuse the situation and protect Darwish from 16

further harm. At no time did Nkwenti become offensive or strike any 17

personnel. He was trying to STOP it. Nkwenti was then overwhelmed by 18

additional Tryst security personnel and viciously assaulted. 19

20

“The color of authority” 21

22

Las Vegas casino security personnel and retail store detectives are 23

substantially different than the standard private security officer employed 24

across the country. Generally, private security personnel in this country have 25

no arrest or detainment powers at all, except in extreme life threatening 26

situations. They normally observe & report as well as notify the local Police 27

when encountered with unlawful activity or trespassers. They can’t put there 28

hands on anybody for any reason. However, casino security officers have 29

vastly superior powers to enforce certain criminal codes, arrest, and detain. 30

31

If a private security officer or police officer forcibly detains or arrests an 32

individual, that security or police officer is then acting under “The color of 33

authority” (also referred to as “color of law” or “color of office”) and must 34

abide by all legal means necessary and not over step his/her authority. If a 35

security officer abuses that authority, they will be held liable. Color of law 36

refers to an appearance of legal power to act but which may operate in 37

violation of law. For example, though a police officer or casino officer acts 38

with the "color of law" authority to arrest or detain someone, if such an 39



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arrest is made without probable cause the arrest may actually be in 1

violation of law and in violation of their rights. In other words, just because 2

something is done with the "color of law", that does not mean that the action 3

was lawful. When police or private security forces act outside their lawful 4

authority and violate the civil rights of a citizen, the FBI is tasked with 5

investigating such instances and prosecuting. 6

7

Casino security personnel, although granted certain powers to detain or 8

enforce No Trespass orders, are not “agents of the state”. They are not 9

police officers or federally sworn law enforcement personnel. They are 10

private citizens employed by a private corporation. Therefore, if a citizen is 11

lawfully in their facility and clearly has committed no crime, then absolutely 12

under no circumstances should any employee of that corporation be placing 13

their hands on that citizen or depriving them of their rights or freedom. 14

15

Because neither Defendant was engaged in any criminal activity, were not in 16

violation of any No Trespassing orders, and were not repeatedly asked to 17

leave the premises and refused, it is quite apparent to me, that the very 18

second Defendant employees placed their hands on the Plaintiffs, detained 19

them, and began to assault them, they were violating the constitutional civil 20

rights of Darwish and Nkwenti as well as violating state laws by assaulting 21

them. Not to mention the (alleged) deliberate theft of Plaintiff Nkwenti’s 22

watch by a member of the Tryst nightclub security. 23

24

A private security officer's primary duty is the prevention and deterrence of 25

crime and Fire Life Safety. Security personnel enforce company rules and 26

can act to protect lives and property. It seems that casino security personnel 27

try to “solve” complex problems and elevated challenges by themselves 28

continually, only calling the local police to transport a detainee instead of 29

utilizing the services of the police more often when things are getting out of 30

control or extremely violent. It seems the Las Vegas Metropolitan Police 31

endorse this behavior due to overwhelming calls for service. 32

33

Tryst security personnel were not properly supervised in the night of the 34

incident and when a manager did respond (Gil Verdugo) he displayed a 35

disturbing unprofessional & abusive demeanor toward the Plaintiffs and 36

made no attempt to extract from the Plaintiffs what happened or their 37

version of what instigated the whole episode. He just hurled insults at the 38

Plaintiffs and then had them pose for a picture and advised of the No 39



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17

Trespassing statute. Verdugo demonstrated an absence of and complete lack 1

of, leadership or proper administrative follow up to a violent incident. 2

3

Standard “Use of Force” doctrines were not employed in this incident 4

involving the Plaintiffs. Proper procedures according to the internal Tryst 5

security manual were not followed. However, upon reviewing other related 6

documents and previous unrelated incident reports, there seems to be a 7

tolerated “culture” within Tryst security personnel to be aggressive and 8

physical with customers who they perceive as unwelcome or bothersome. 9

Almost like a “shoot first and ask questions later” kind of mentality. 10

Generally, even in a casino type environment, the following use of force 11

guidelines should have been adhered to, either wholly or close thereof. 12

13

These guidelines are not implied to have been exactly inserted into 14

Defendant security manual, but to have been adhered to in, spirit. 15

16

Standard Use of Force Guidelines & protocols (For Security): 17

18

When faced with a clear and immediate threat of imminent bodily harm, 19

always try first, to retreat with any people present, to a secure and safe 20

position. 21

22

Use of Force is permitted ONLY when it is absolutely necessary to protect 23

yourself and others, from a clear and immediate threat of bodily harm, and 24

only when all options have exhausted. 25

26

Use only that degree of force that is necessary to repel an attack or the 27

threat of an attack. Do not further provoke or incite what you perceive to be 28

an impending attack or threat of attack. 29

30

DO NOT use force to protect property. There may be special considerations 31

that apply under extreme certain circumstances. Unless directed to, follow 32

standard use of force policy. 33

34

If able to, always utilize the 911 system for Police assistance, as one of your 35

primary methods when confronted with these situations. 36

37

When Darwish initially “pushed off” the security bouncer, it was an act of 38

defense. What made Darwish physically push away his aggressor(s) was the 39



813-260-0093

18

cause of two factors on the part of Tryst personnel. Instead of trying to 1

deescalate, they chose to “provoke” and “incite” the situation. 2

3

During the deposition of Erin Martinez, he stated that security bouncers can 4

eject a patron for any reason they deem necessary, but that front line security 5

personnel or bouncers can’t “Trespass” somebody, only a Supv. or Manager 6

can. As I stated previously, one of the issues in regards to the incident was 7

lack of supervision and the culture that exists at Tryst. A front line security 8

official should never have outright authority to eject any patron they feel 9

they want to, that is absolute unchecked power. To decide to summarily 10

eject any person weather with cause or no cause is a “managed decision” 11

that only should be made by a seasoned management figure. The fact that 12

Wynn Las Vegas has a policy that allows any security officer or bouncer to 13

eject anybody they pretty much want to without any type of appeals process 14

to superiors above that security official is “negligence” on the the part of the 15

Defendant. The only exception would be violence or threats of violence. 16

17

In addition to any standard use of force training that Wynn Las Vegas 18

officers may receive, they should also have some type of de-escalation 19

training as well to counter use of force policies so that use of force is not the 20

officer’s only option when placed in these type of situations. If you only 21

teach use of force protocols, that is what the officer relies on from training 22

and memory. Officers should have mandatory training from say, The Crisis 23

Prevention Institute (CPI) who specialize in Non-Violent Crisis 24

Intervention techniques to deescalate potentially violent encounters instead 25

of escalating them. Nonviolent Crisis Intervention training focuses on 26

prevention and offers proven strategies for safely defusing anxious, hostile, 27

or violent behavior at the earliest possible stage. 28

29

The Non-Violent Crisis Intervention training program is a holistic 30

behavior management system based on the philosophy of providing the best 31

safety and security for staff, customers, and those in their care, even during 32

the most violent moments. The program focuses on preventing disruptive 33

behavior by communicating with individuals respectfully and with concern 34

for their well-being. The program teaches physical interventions to be used 35

only as a last resort-when an individual presents an imminent danger to self 36

or others-and all physical interventions taught are designed to be non-37

harmful, non-invasive, and to maintain the individual’s dignity. 38

39



813-260-0093

19

CASE POINT: 1

2

Examples of the lack of leadership and absence of checks & balances 3

ingrained at Tryst Nightclub can be illustrated by these random incidents: 4

5

Daily Log/ Incident # DL20110026412: 6

7

On Saturday, January 28th, 2011 at approximately 2300 hours, customer 8

Robert Gonzalez reported that an unknown blonde cocktail waitress lost his 9

Chase Debit card when he ordered a drink. Gonzalez, who could not get any 10

answers from the server about the card, further states that when he notified 11

Tryst management, Lance Martinez, he was subsequently asked “to leave 12

the nightclub”. This is an internal Tryst security incident report. 13

14

Daily Log/ Incident #DL20110051991: 15

16

On Monday, February 21st, 2011, at approximately 19:30 hrs. Miss Wanda 17

Nelson and her husband were at the Tryst nightclub attending a function. 18

Miss Nelson discovered her new I-Phone missing (Value $300.00) from her 19

purse and reported such to Tryst security. After trying to search for the 20

phone for 15 -20 minutes, Tryst security requested they “leave the 21

premises”. This is an internal Tryst incident report by Officer Wilbur 22

Moody. 23

24

Daily Log/ Incident # DL20110040258: 25

26

On February 11th, 2011, at approximately 0300 hrs. Security Officer Vicky 27

Carroll responded to the back hallway of the Tryst nightclub for a missing 28

property report. Carroll met with patron Daniela Amparano who stated she 29

was dancing on the floor with some friends and had left her purse on the 30

table, # 230. When she returned, her wallet was missing from her purse. She 31

reported that over 9,000.00 dollars and a Chase Visa card were missing. 32

Miss Amparano was so upset at the incident that friends had to assist her in 33

leaving the nightclub. Several things here strike me. Why was the Las Vegas 34

Police not notified of this matter? No where in the report does it state that 35

the Police were notified or does it state that Tryst security suggest to the 36

victim that she should report this matter immediately. This is not 9 or 90 37

dollars. It is over 9,000.00 dollars which is very serious. Additionally, the 38

report states that a review of video coverage of the area is “pending”. 39



813-260-0093

20

Pending? I would think that when over 9,000.00 dollars is stolen from your 1

nightclub that security would be reviewing the video coverage with the 2

victim immediately to see if anything stood out or perpetrators identified. 3

4

The US Supreme Court- Graham VS Connor- , 490 U.S. 386 (1989): 5

6

OBJECTIVE REASONABLENESS: 7

8

Graham v. Connor, in which the Court determined that an objective 9

reasonableness standard should apply to a free citizen's claim that law 10

enforcement or security officials used excessive force in the course of 11

making an arrest, investigatory stop, or other "seizure" of his person. 12

This case also established the doctrine that the judiciary may not use the Due 13

Process Clause instead of an applicable specific constitutional provision. 14

There are two key rules that must be followed in order to help in the decision 15

making process: 16

1. The level of force must be reasonable when attempting to 17

accomplish your objective, which is control under the 18

circumstances. 19

2. Once your objective has been achieved, you must deescalate to a 20

level sufficient to maintain control. 21

Violations of these rules could subject an officer to criminal action or civil 22

liability. In the context of making an arrest or other seizure of a person, the 23

standard “objective Reasonableness” is applied when assessing an officer’s 24

actions and behaviors. 25

Claims that law enforcement or security officials have used excessive force 26

in the course of an arrest, investigatory stop, detainment, or other "seizure" 27

of a free citizen are most properly characterized as invoking the protections 28

of the Fourth Amendment, which guarantees citizens the right "to be 29

secure in their persons . . . against unreasonable seizures," and must be 30

judged by reference to the Fourth Amendment's "reasonableness" standard. 31

The Fourth Amendment "reasonableness" inquiry is whether the officers' 32

actions are "objectively reasonable" in light of the facts and circumstances 33

confronting them, without regard to their underlying intent or motivation. 34

The "reasonableness" of a particular use of force must be judged from the 35

perspective of a reasonable officer on the scene. 36

http://en.wikipedia.org/wiki/United_States_Reports

http://en.wikipedia.org/wiki/Due_Process

http://en.wikipedia.org/wiki/Due_Process



813-260-0093

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Clearly Wynn- Tryst security personnel did not meet or accomplish the legal 1

objectives & standards set forth by sections #1 and #2. Therefore, Defendant 2

Wynn is civilly liable, in my opinion, according to these guidelines. 3

4

NEVADA STATE LAW: 5

6

Nevada law defines battery as “any willful and unlawful use of force or 7

violence upon the person of another” and assault as “unlawfully attempting 8

to use physical force against another person” or “intentionally placing 9

another person in reasonable apprehension of immediate bodily harm.” Both 10

are misdemeanors, although battery resulting in “substantial bodily harm” is 11

a felony. 12

Critics fault casinos for failing to adequately train security guards in the kind 13

of verbal judo police officers use to talk to suspects in tense situations. 14

Instead, they say, security guards too frequently seize unruly or unwanted 15

customers rather than let them leave the premises or immediately call police 16

to have patrons arrested. Rather than providing the higher standard of care 17

that’s required when you’re dealing with a guy who is drunk or belligerent, 18

they act on adrenaline and treat customers like thugs. 19

Security guards have no more right to arrest a customer than any other 20

citizen in that they can make an arrest if they see a crime occurring. Most 21

assault cases aren’t about criminal activity, but rather, are a display of force 22

by security guards who view themselves as authority figures with pseudo-23

police powers. In regards to this case, it is without question that this culture 24

is what occurred on July 23rd

, 2011 at the Tryst Nightclub. Tryst personnel 25

elected to treat Nader Darwish and Mathias Nkwenti like “criminals” rather 26

than to 1. Handle the situation professionally & firmly and 2. Notify the 27

Police if need be to have them removed, regardless of the reason. 28

FALSE ARREST: 29

30

A “detention” is accomplished by means, which restricts the freedom of the 31

person in custody from moving from one place to another as he or she may 32

see fit. To prevail under a false imprisonment claim, a plaintiff must prove: 33

34

1. Willful detention 35

2. Without consent 36

3. Without authority of law. 37



813-260-0093

22

In my professional opinion, the Plaintiff’s were taken into custody and 1

detained without reasonable cause and authority of law. 2

3

Register of Actions: Dominic Tegano 4

5

It has been discovered through the court system of Clark County, Nevada, 6

that Dominic Tegano was convicted of a gross misdemeanor in 2009. On 7

September 5th

, 2008, the District Attorney for Clark County, specifically, the 8

Attorney General Catherine Cortez Masto and Senior Deputy Patrick 9

Ferguson (Insurance Fraud Control Unit) filed a criminal complaint against 10

Dominic Tegano with the following: 11

12

Count 1: 13

Burning Property with intent to defraud insurer- Category B felony, NRS 14

205.030 15

16

Count 2: 17

Third Degree Arson- Category D felony, NRS 205.020 18

19

Count 3: 20

Injuring or tampering with a vehicle (2007 Toyota Corolla)- Category C 21

felony, NRS 205.274, 193.155 (1) 22

23

Count 4: 24

Insurance Fraud- Conspiracy to make a false claim for insurance benefits- 25

Category D felony, NRS 686A.2815 (3) 26

27

On January 8th

, 2009, Dominic Tegano admitted to the factual circumstances 28

which formed the basis for the charges at the time of the arrest on August 29

13th, 2008. He pled to and was convicted of the following: 30

31

“Adjudged guilty of the gross misdemeanor of conspiracy to commit theft”. 32

A 12 month sentence at Clark County Detention center was suspended and a 33

3000.00 dollar fine imposed by the court. 34

35

This information is relevant in relation to character and the position held by 36

Mr. Tegano at the Tryst Nightclub- Wynn Las Vegas LLC. 37

38

39



813-260-0093

23

EXCESSIVE FORCE OPINION: 1

2

It is my opinion that both Plaintiffs were victims of Wynn Las Vegas- Tryst 3

negligent management and improper public safety procedures resulting in 4

their use of excessive force in this incident by involved employees of Wynn 5

Las Vegas- Tryst Nightclub. It is a common standard in private security 6

operations that the employer is responsible for the intentional actions of their 7

employee(s) when the act is committed in the course and scope of their 8

employment. The actions of the involved Wynn Las Vegas personnel 9

referred to in this summary expert opinion were contrary and counter 10

productive to sound, prudent, and customer safety security management and 11

or public safety practices and procedures. 12

13

Signature: __________________________ 14

15

Richard C. Garrity November 14th

, 2013 16

Principle, Owner 17

Corporate Resource Training Group 18

(CRTG Boston) 19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39



813-260-0093

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ATTACHMENT “A” 1

2

Complaint (filed 4/10/12); 3

4

Answer (filed 05/17/12); 5

6

Mathias Nkwenti’s answers to first set of rogs (dated 10/23/12); 7

8

Mathias Nkwenti’s responses to second set of rogs (dated 12/6/12); 9

10

Mathias Nkwenti’s responses to first set of request for production 11

(dated 9/17/12); 12

13

Nader Darwishs’ answers to first set of rogs (dated 9/17/12); 14

15

Nader Darwishs’ responses to first set of request for production 16

(10/23/12); 17

18

Wynn’s responses to first set of request for production (dated 19

1/31/13); 20

21

Wynn’s Supplemental responses to first set of production (dated 22

5/3/13); 23

24

Wynn’s Answers to first set of rogs (dated 1/31/13); 25

26

Wynn’s responses to first set of admissions (dated 1/31/13); 27

28

Deposition Transcript- Nader Darwish (dated 1/31/13); 29

30

Deposition Transcript- Mathias Nkwenti (dated 4/26/13); 31

32

Deposition Transcript- Warren Hasegawa (dated 05/6/13); 33

34

Deposition Transcript- Erin Martinez- (dated 05/8/13); 35

36

Deposition Transcript- Eric Pinheiro- (dated 05/8/13); 37

38

Wynn Las Vegas Employee file- Warren Hasegawa; 39



813-260-0093

25

Wynn Las Vegas Employee file- Erin Martinez; 1

2

Wynn Las Vegas Employee file- Robert Malone; 3

4

Wynn Las Vegas Employee file- Eric Pinheiro; 5

6

Wynn Las Vegas Employee file- Dominc Tegano; 7

8

Wynn Las Vegas Employee file- Gilbert Verdugo; 9

10

Wynn Las Vegas Employee file- Deano Zappia; 11

12

Tryst Nighclub Incident reports regarding lost property from January 13

1, 2010 through August 1, 2012; 14

15

Incident Report (Darwish/ Nkwenti dated July 23rd

, 2011); 16

17

Correspondence from Wynn to Mathias Nkwenti regarding stolen 18

property (dated 8/1/13); 19

20

Blueprint of tryst Nightclub; 21

22

Incident Statement- Mathias Nkwenti/ Statement- Nader Darwish; 23

24

Site Inspection Photos (1 CD ROM 3/28/13); 25

26

Site Inspection DVD (1 DVD- 3/28/13); 1Video Surveillance footage; 27

28

Wynn’s Employee manual; 29

30

Michael Gillette, Progressive Force Concepts Deposition 31

32

Register of Actions, Dominic Tegano- Case# 08C248980-1 33

34

Tegano- Arrest and Complaint Report, Transcript of Sentencing 35

36

Tegano, Guilty Plea Agreement, Pre- Lim Hearing, Stipulation 37

38

Tegano- Probation Agreement, Judgment of Conviction 39



813-260-0093

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ATTACHMENT “B” 1

2

Use of Force Guidelines- 253 slides: 3

4

5

6

Sexual Harassment in the Workplace- 214 slides 7

8

9 10



813-260-0093

27


2

Workplace Violence in America- 205 slides 3

4

5 6

7

Legal Aspects of Defending Negligent Hiring/ Retention- 115 slides: 8

9

10



813-260-0093

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2

Legal Authority Guidelines for Private Security- 134 slides: 3

4

5 6

Conflict Resolution- 73 slides 7

8

9 10



813-260-0093

29


2

Fire Life Safety- Point of Ignition- 142 slides 3

4

5 6

OSHA Safety Presentation- 130 slides: 7

8

9 10



813-260-0093

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2

Customer Service Skills & Etiquette- 148 slides: 3

4

5 6

7

New Business Development (Security)- 148 slides: 8

9

10 11



813-260-0093

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2

Skyscraper Security Mgt- Part I- 163 slides: 3

4

5

6

Skyscraper Security Mgt- Part II- 169 slides: 7

8

9



813-260-0093

32


2

Skyscraper Security Mgt- Part III- 132 slides: 3

4

5

6

Detecting Suicide Bombers: 65 slides 7

8

9

10



813-260-0093

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2

Emergency Evacuations- Handicapped: 3

4

5

6

Civil Demonstrations: 7

8

9

10



813-260-0093

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2

Bomb Threat Repsonse- 112 slides: 3

4

5

6

Bomb Threat Repsonse- 7

8

9

10



813-260-0093

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2

Skyscraper Security Mgt- Part V- 141 slides: 3

4

5

6

Skyscraper Security Mgt- Part V- 138 slides: 7

8

9

10



813-260-0093

36


2

Appropriate Attire in the Workplace- 185 slides 3

4

5

6

CRTG Boston business page- 7

8

9

10



813-260-0093

37

Center For Life Science, Boston 1

3 Blackfan Circle, Boston, Massachusetts 2

3

4

5

Site Standard Operating Procedures 6



813-260-0093

38

1

2

BioMed Realty Life Sciences Building 3

LONGWOOD MEDICAL AREA 4

3 Blackfan Circle, Boston, MA. 5

6

Standard Operating Procedures 7

8

SOP Enclosures: 9

10

1. Emergency Contacts 11

2. Front Lobby Procedures 12

3. Building Tours/ Fire Life Safety 13

4. Fire Alarm Panel Procedures 14

5. Access Control Procedures 15

6. OSHA Safety Regulations 16

7. Use of Force Guidelines 17

8. Detecting Suicide Bombers 18

9. Workplace Violence Action Plan 19

10. Secondary Containment Policy 20

11. Daily Reports Documentation 21

12. Incident Report Documentation 22

23

Richard Garrity, Director of Security 24

Douglass Cuff, Senior Property Manager 25

Matthew Guimares, Operations Manager 26

Michael Cahill, Senior Facility Engineer 27

28

April 25th, 2009 29

30

31



813-260-0093

39

1

2

100/125 SUMMER ST. BOSTON 3

EQUITY OFFICE PROPERTIES 4

5

6

7

EMERGENCY PROCEDURES 2003 8

RICHARD GARRITY, SR. ACCOUNT MANAGER 9

JEIMY HERNANDEZ, ASST. ACCOUNT MGR. 10

11



813-260-0093

40

~END OF SUMMARY REPORT~ 1

2