Can new faces and a new structure bring discipline to the Denver Police Department?
Alex Landau has become a city symbol for social justice.
Alex Landau grins and waves at the thirty people seated in a circle around him at the Hiawatha Davis Community Center in Park Hill. He lives in this neighborhood and knew many of them even before his bloody face made the news. "My name is Alex Landau, and I'm going to teach you some tips and phrases to use with law enforcement, if you're ever in a situation where you need them," he says. "Let's hope you're not. A couple years ago, I could have used some of these."
The now-23-year-old college student has been telling his story for three and a half years in various forums — to friends, strangers, city officials, and now as an instructor at a know-your-rights training with the Colorado Progressive Coalition. "A few years ago, I was racially profiled by the Denver Police Department," he begins. "I had a gun put to my head. I was laughed at and called a nigger. They beat me until I bled."
On the night of January 15, 2009, Landau, then a nineteen-year-old about to start his third semester at Community College of Denver, and a friend, Addison Hunold, were headed to Wendy's in Landau's car when an officer pulled them over near the corner of 16th Avenue and Emerson Street. He told Landau that he'd made an illegal left turn, requested his identification, then asked to search his vehicle. Landau approved, and Hunold voluntarily handed over a pill container full of weed. But there was more in the trunk, and the two grew nervous. When officer Ricky Nixon approached the back of the car, Landau asked if he had a warrant to search the trunk — and the situation suddenly changed. Nixon punched Landau in the face, Landau remembers, and then officers Randy Murr and Tiffany Middleton joined in a brawl that sent all four tumbling to the ground. They hit Landau with their fists, a police radio and a metal flashlight, he says. At one point, he felt a gun against the side of his face. Before he was taken to the hospital — where he was given 45 stitches — he demanded that paramedics take photographs of the damage.
Those photographs helped convince the city to pay Landau a record settlement two years ago.
"But what happened after that?" someone in the audience asks. "How does your story end?"
"It hasn't," Landau answers.
Hours after Landau was released from Denver Health in January 2009, the Denver district attorney charged him with attempting to disarm a police officer: Nixon was claiming that Landau had reached for Middleton's gun. Landau denied it, and kept denying it when he was offered a plea deal that would downgrade the Class 6 felony charge to a misdemeanor and lower the time Landau might face in prison, originally up to eighteen months. Landau refused the deal, and seven months later, the DA dropped the charge against him. By then, the DPD's Internal Affairs Bureau had already decided that Nixon, Murr and Middleton had acted in accordance with DPD policy and shut the book on the incident.
But Landau's case lived on in the legal system. In January 2011, attorney John Holland filed suit on Landau's behalf against Nixon, Murr, Middleton, then-Chief of Police Gerald Whitman and the City and County of Denver, alleging that his client's civil rights had been violated when he was racially profiled. In a letter notifying city officials of the pending suit, Holland had included the photos that Landau had insisted be taken that night. In them, Landau's face is swollen and bloody. His nasal passage is reinforced with a breathing tube and his neck is supported by a brace. He cannot open his right eye. And the attorney also informed the city of the words Landau remembers hearing as he was beaten: "Where's that warrant now, you fucking nigger?" (See "Black and Blue," January 20, 2011.)
Just four months after the suit was filed, in May 2011, the city awarded Landau $795,000 in an out-of-court settlement that also called for the DPD to conduct a formal investigation into the officers' behavior that night.
Changes within the DPD's disciplinary system slowed the progress of that investigation, however. Manager of Safety Al LaCabe had already devoted years to updating the DPD's disciplinary matrix, establishing a stricter, more cohesive plan for dealing with accusations of officer misconduct. Under this update, for example, officers who lie during an investigation can be fired for the offense. Soon after announcing the new standards — in January 2009, the same month that Landau was pulled over — LaCabe said that he would be leaving his job of six years. That June, Mayor John Hickenlooper replaced LaCabe with former Secret Service official Ron Perea, who lasted two months before he, too, vacated the position.
When Hickenlooper left the mayor's office to run for governor in 2010, Bill Vidal, who replaced him, said he was determined to clean up the DPD's many outstanding cases involving alleged police misconduct, and ultimately appointed former chief public defender Charles Garcia to the manager of safety post. (Garcia was the fourth to hold that slot in less than a year.) And clean up he did, terminating seven officers in four months. Many of those officers subsequently appealed their firing to Denver's Civil Service Commission.
Outstanding police-brutality cases were a major discussion point in the 2011 mayoral race. During his run, Michael Hancock called for structural reform within the DPD.
"The people of Denver wanted to see some bold leadership steps within the Denver Police Department to begin to put it back on track," Hancock says today. "I don't believe there's a more sacred bond in public, municipal government than between the police department and the people, and that had clearly been jeopardized by some actions that had been taken and some leadership that had been missing. These are long-term, organizational, culture-changing moves we're attempting to make."
Among Hancock's moves after he took office in July 2011: appointing former Colorado Supreme Court justice Alex Martinez to the manager of safety position and hiring Robert White to be the city's new chief of police. And in the six-plus months that they've been on the job, both Martinez and White have made their own hires: Former judge Jess Vigil joined the Office of the Manager of Safety as the new manager of police discipline, and Michael Battista moved up in the DPD to become its conduct review commander. The DPD's Internal Affairs Bureau also has a new top officer: Mary Beth Klee, who has since added twelve investigators.
The change in investigation oversight is only one in a large catalogue that White has instituted since he moved to Denver from Louisville, Kentucky. In February, he began by cutting administrative spots within the department to move seventy officers to the streets, and he has been aggressive about both decentralizing the DPD and bringing civilians in: If a position does not require a gun and a badge, he says, it does not require an officer. The next series of changes within the DPD will be finalized by the end of the year, White says, adding that by then he hopes to end the internal stagnation that resulted from a years-long hiring freeze by offering officers the opportunity to compete for promotions.
Martinez and White have also worked to streamline oversight of the investigations, removing at least four layers of review from each investigation of officer misconduct. Translation: They should be 50 percent faster, White says. Before these changes, every investigation of a DPD officer rotated through a district commander, a division chief, a bureau chief and other officials before landing on the police chief's desk — and then moving on to the manager of safety. Under the revised structure, they now progress from Internal Affairs to Battista to White, then move on to Vigil and Martinez. The benefits of the system are twofold, White says: The department can maintain consistency across investigations of alleged police misconduct while proving competent to manage its own affairs — and hopefully, public perception will adapt to the positive changes and overcome the mistrust that White sees now.
"Officers have a great deal of discretion, and if that discretion is not used in the best interest of the community, it raises a lot of issues about the department, especially in the community," White says. "Many of those issues we will win over, and they'll see that this is a very good, professional police department. And it's getting better."
Under the previous system, review of completed investigations of officers averaged between sixty and ninety days. White and Martinez hope to soon whittle that down to between 30 and 45. "You [were] putting that on someone's desk who has another job," Martinez says. "I can tell you specific examples where it's like, 'Take the file, go home, we'll put someone else on your job. Get it done.' That is over."
Both White and Martinez say they've already seen noticeable improvements in the amount of time it takes to process investigations, and they have completed more than a dozen in the three months since Vigil and Battista came on board. Still, they're mired in a backlog of cases, what White calls a "bottleneck" of older investigations that were slowed by LaCabe's work on the discipline matrix, then reassigned from the previous system to the new one when the department changed over. Last year, 200 formal investigations moved across the manager of safety's desk. They are hopeful that that number will increase this year.
"I am extremely confident that we will do extraordinarily well on the vast majority of cases," Martinez says. "On the really difficult cases, that will be the real test — whether we also move those a lot faster. That's what people will notice, for sure."
People certainly noticed that Landau's case was going nowhere — fast. The formal investigation into his beating, triggered by the city's settlement in April 2011, was part of that backlog. After meeting with Landau, who had since become involved with the Colorado Progressive Coalition (CPC), a sixteen-year-old social-justice nonprofit that focuses on racial and economic issues, the chief promised that the investigation would be complete this spring. "The civil judgment that was settled left the situation where something doesn't look right," Martinez says. "We settle a case for that much money and there's no discipline in it? It's hard to explain, and a first glance at that is that something's amiss."
After missing two self-imposed deadlines, in May White invited everyone involved in the initial case to individually demonstrate the actions they had explained in their statements — basically, to reenact them. Landau aggressively refused, calling the request an insult that asked him to essentially relive the worst night of his life.
"A lot of that came around because of the use of the word 'reenactment,' which I would suggest is a poor choice of words," Martinez says. "'Reenactment' makes it sound like we're producing a video."
White went forward without Landau's participation, and in a joint statement released in early June, White and Martinez wrote that "the investigation is now complete." But they also said that they were not releasing the results of their investigation — because the Federal Bureau of Investigation was now on the case.
For years, the Colorado branch of the American Civil Liberties Union, the CPC and other anti-police-brutality groups had tried to convince the Department of Justice to investigate the DPD. But the FBI's investigation, announced publicly on June 4, is not the top-to-bottom standards-and-practices review that they had pushed for: According to Dave Joly, spokesman for the Denver division of the FBI, the agency is focusing specifically on Landau's case. And while the FBI does its own investigation of that incident, any action by the city is on hold.
"The right of the City of Denver to discipline police internally does not depend on what the FBI thinks of crime," argues Holland, Landau's attorney, who calls the added delay "hilarious." "These are completely independent functions. It's like they're betting on something."
For his part, Martinez estimates a delay of at least six months and perhaps as much as a year before the city can release the report on its own investigation and take any disciplinary action against the officers involved. "It's not a result that hasn't been released," he clarifies. "The decision is to wait for any additional information before we make a decision. The simple reason is to be sure we're considering everything there is to be considered. If they come up with something we haven't seen or aren't aware of, we want to see it."
It would be "foolish" not to wait for the outcome of the FBI's investigation, White says, adding that because the clock has already been ticking for three years, time is no longer of the essence.
"What's the likelihood that the situation is going to come out different?" Martinez asks. "Probably not great. There's no way to fix the problem, at this point in time, with how long this has taken. Since you can't fix that, it seems that getting it right seems to weigh heavier than getting it done."
The federal investigation brings with it an extension of resources, including the ability to subpoena witnesses and immunize them against prosecution. "They are bigger, stronger, scarier, basically," Martinez says. The FBI is working independently of the DPD and the Office of the Manager of Safety, he notes; it was a courtesy of the DOJ to even notify the city of the investigation. The process will take investigators back to square one as the federal team sifts through evidence in order to decide whether to pursue criminal prosecution of the officers.
Landau was made aware of the FBI's involvement at the end of April and has shared his story with federal investigators in the intervening months.
"If the FBI comes to the right decision in this case, I believe we can convince them to later investigate the entire police department," Landau says. "It's a start. It just happens to be a really long one."
Landau's investigation is not the only process that's been dragging on. Last year, the City of Denver spent $1.34 million settling police-brutality lawsuits. More than half of that was connected with Landau's case. But along with the DPD's current backlog of officer-misconduct investigations, a few high-profile cases have yet to come to a real conclusion.
In April 2009, a few months after Landau was pulled over, then-23-year-old Michael DeHerrera and his partner, Shawn Johnson, were beaten by DPD officers in LoDo — an incident that was caught on camera. Then-Manager of Safety Ron Perea originally suspended Randy Murr, who was also involved in the Landau case, and Devin Sparks for three days as punishment for their actions. But that decision created such a firestorm of controversy that Perea left and the DPD reopened its investigation. Seven months later, then-Manager of Safety Charles Garcia called for both men, who were found to have lied about the proceedings, to be fired — but the officers appealed to the city's Civil Service Commission, the organization responsible for hearing disciplinary appeals for the Denver police, fire and sheriff's departments.
The commission's hearing panel sided with Perea, supporting a technicality and reinstating the officers without actually holding an appeal hearing. But in April, the commission ruled that the hearing panel had made a mistake in reinstating Sparks and Murr, who were re-fired. They still have the opportunity to appeal their termination, however — and will go in front of the same hearing panel in October.
Officers Ricky Nixon, who'd originally pulled Landau over, and Kevin Devine were involved in another controversial 2009 incident, in which they beat and maced a group of women on camera outside the Denver Diner. Originally fired by Garcia, they, too, appealed, and are now back on the force — at least until a Civil Service Commission panel can hear an appeal of that firing. A clerical error was responsible for this snafu: City lawyers missed their deadline to ask for a delay in reinstatement by four days, allowing Nixon and Devine to return to the force by default.
During the initial investigation of that incident, Mary Beth Klee, now head of Internal Affairs, and other DPD supervisors testified that the officers involved had acted within their job descriptions; that inspired the CPC to raise concerns about Klee's promotion. "I think the public should understand that some of these things are not clear outcomes," Martinez says. "Simply because two parties do not agree does not mean either one is being unreasonable or either one is being unbiased."
And other controversial cases have reached some kind of closure. In July 2011, 29-year-old Alonzo Ashley died during an incident at the Denver Zoo when he allegedly attacked a zoo guard. The eight officers involved in Ashley's case will not face any charges; in January, Martinez's office released its decision not to discipline those present that night.
Also in July 2011, inmate Marvin Booker died in jail after five sheriff's deputies subdued him. Camera footage captured the incident and made its rounds on the Internet, showing Booker waiting to be booked into the system and then becoming embroiled in a physical struggle with the deputies. Booker was warned to stop struggling or risk being tased — and the deputies made good on the threat, also using a carotid hold on Booker. Later, inside his cell, Booker could not be resuscitated by medical experts. The manager of safety declined to terminate any of the deputies, but the sheriff's department has stopped using the carotid hold.
And back in 2003, DPD officer James Turney shot fifteen-year-old Paul Childs four times and killed him. According to accounts of the incident, Childs, who was developmentally disabled, held a sizable knife. Turney earned a ten-month suspension based on alleged procedural errors in his actions. The incident also inspired John Hickenlooper, just elected mayor of Denver, to establish the Office of the Independent Monitor.
Denver is still searching for a permanent replacement for Richard Rosenthal, the city's first independent monitor, who resigned from the post he'd held for almost seven years in late December to take a job in Vancouver. "Walking into that office every day is like walking into the eye of a storm," says Rosenthal. "And that never changes."
Facing a crisis of confidence in the DPD, in 2005 Hickenlooper created the Office of the Independent Monitor, which was approved by city ordinance. The office's primary function is to serve as a civilian watchdog, providing oversight by reviewing and analyzing all investigations of officer misconduct within the DPD and the Denver Sheriff's Department, then submitting a disciplinary recommendation to the Office of the Manager of Safety once the review is complete. In 2011, the Office of the Independent Monitor reviewed 941 cases. Landau's was not one of them.
Mayor Hancock has vowed to keep the independent monitor position. After an audit last year found certain passages in the ordinance establishing the office to be vague and "problematic," Hancock convened a committee to review the ordinance and consider making changes in the office — even as the city searched for someone to fill it. Potential fixes could range from establishing term limits to disassociating the monitor from low-level cases, a move that Rosenthal sees as a grave mistake. Limiting the ability of the monitor to exercise discretion would be a huge step backward, he says, one that would compromise the "independent" part of the role.
"There has been a tradition in Denver of Internal Affairs not identifying when officers lied," Rosenthal says, calling the proposal to pull out low-level cases "a way to avoid oversight." So-called small issues that aren't resolved often become big issues, he explains, and many apparently minor investigations he encountered during his days in Denver grew bigger than he expected. "There were cases where I had to stop a case and send it back to the chief because they were ignoring big issues. It's essential to the structure of oversight enforcement in Denver that the independent monitor be allowed to choose which cases enter that office."
After Rosenthal announced his resignation, Hancock organized a committee to search for his successor; by April, that committee had reviewed the 110-member pool of applicants and, after interviewing nine candidates, settled on three finalists. All three came to Denver to participate in community forums, and Hancock offered the job to Julie Ruhlin. But she turned it down, opting instead to remain in her current job in Los Angeles County.
So in June, the nomination committee went back to square one, reopening the application process to consider additional candidates. This week, the committee hopes to send a second round of finalists to Hancock.
Rosenthal's biggest fear is that the spot could go to someone with no oversight experience. Rosenthal was disappointed that after Ruhlin rejected the offer, Hancock did not turn to either of the other finalists, both of whom have extensive oversight experience. "The manager is obviously a civilian, but the successes of the department are his successes and the failures are his failures," Rosenthal says. "The independence of the office utterly requires someone who knows what they're doing and can bring professionalism to that position and a scrutiny of public comments and comments from the manager of safety. You can't have independence without someone who can think independently. You might as well make the monitor a deputy manager of safety."
In his final report as the independent monitor, Rosenthal noted a need for strict separation of the office and the DPD. "Bias on the part of the Internal Affairs Bureau investigators and supervisors has been documented in many cases over the past year," he wrote in January. "It is the opinion of the Monitor that these cases evidence substantial problems in the way the Denver Police Department is currently policing itself. The Manager of Safety and the new Chief of Police must change the current culture in Internal Affairs to ensure unbiased, thorough and complete investigations and the appropriate documentation of such investigations."
For his part, Martinez says he's remaining neutral about any possible changes to the Office of the Independent Monitor, including removing smaller cases from its purview. "In my view, a good monitor probably won't go there anyway, so why does it matter?" he asks. "I think we could include that if we're trying to improve the ordinance, but if people are upset about it, it's not worth it." The one change he requests is the opportunity to add his own response to the monitor's reports before they are published: He'd like to give the public the chance to digest both voices at once, he explains. But the change isn't critical, he says. "Just some manners, really," he jokes. "That's all I want."
Hancock had appointed Holland to the committee considering potential changes to the monitor's office — but the attorney quit the committee last month, after it became clear that it wouldn't institute real structural reform, he says. "I think Denver has lived through an unbelievable scandal," says Holland. "Now we have a public that no longer trusts our police department."
Holland calls the independent monitor's office as it stands an "impotent," "insufficient" structure that does not have the power to influence the city's police oversight system in any significant way. As it is, officer-misconduct investigations are routed through the DPD's Internal Affairs Bureau, then funneled through layers of review by the DPD and the Office of the Manager of Safety — parties that have a stake in the outcome, he points out, and cannot be overruled by the independent monitor. Instead, he's urging the city to adopt the "Taj Mahal of due process": a three-panel civilian review board comprising lawyers or judges who would have the power to both make disciplinary recommendations and enforce the punishments that come with them. The American Civil Liberties Union has championed similar models in Florida and Missouri, among other states.
"I can't think of a better analogy for Denver's model than the fox guarding the henhouse," Holland says. "The city needs to think about making a process we can believe in, because the one we've got now is bad for the chickens."
After Alex Landau finishes his story — or at least reaches its still-inconclusive end — others at the training session share theirs. A few chairs to his left sits Shawn Johnson, who was beaten by police officers along with partner Michael DeHerrera in LoDo in April 2009.
One woman is here for her son, who woke up from a coma in the hospital days after he was arrested in Denver; he has no idea how he got there. His mother was ten years old when she saw Martin Luther King Jr. give a speech in Birmingham, her childhood home. "I saw the dogs, the demonstrations, the church on fire," she says. "The only thing that has changed is our age. My goal is to keep up the fight."
Landau's session lasts almost three hours, during which he fills page after page of oversized white paper with his audience's thoughts and his own messy handwriting. As the participants speak, he scribbles down their feedback with a black Sharpie, nodding his head or asking for clarification. "But what do you mean when you say police can lie?" he asks a Park Hill neighbor. "And how do we deal with that? Not every officer is the same."
When a page is full, he rips it off the oversized notepad and tapes it to the back wall. On one page, he reminds his audience of the three potential stages of police interaction: "conversation, detainment, arrest." He jots down their lists of perceived police transgressions, essentially the all-caps message "COPS CAN LIE," followed by three bullet points: "cover tracks," "crime pays," "entrapment" — to which he adds "Be respectful." On a fifth page, he writes the number for the CPC's racial-profiling hotline.
But before a situation gets to the point where people feel they have to use the number, Landau suggests trying some magic phrases — phrases he then acts out in a series of sketches: "Have I done something wrong, officer?," "Am I free to go?," "I do not consent to this search," "I'd like to speak to an attorney" and "I'd like to remain silent." At the end of the lecture, he and the evening's two other organizers ask audience members to write their goals for a better Denver — anything from "community gardens" to "more stoplights" — on a piece of colored paper shaped like a leaf; together these goals will create a "vision tree."
As participants step forward to announce their hopes and attach their leaf to the tree, CPC racial-justice director Mu Son Chi remembers the people whose lives were cut short. Paul Childs, Alonzo Ashley, Marvin Booker: three men whose names, like that of Alex Landau, have come to mean something to the community for all the wrong reasons. And when the tree has grown to full size, Landau finally adds his own entry, taping a yellow leaf down near the base.
It reads, "Satisfactory police discipline."
Over the past few months, anti-police-brutality marches and rallies have grown more commonplace in Denver, with actions splitting the focus between national names (Trayvon Martin) and local ones (Marvin Booker, Alex Landau). The CPC and Colorado ACLU had a "Summer Against Police Violence" message ready to release last month, but postponed it for a few weeks out of respect for fallen DPD officer Celena Hollis. On July 18, the CPC will host a vigil with the family of Alonzo Ashley.
While Landau waits for the feds to finish their investigation and perhaps deliver some satisfactory police discipline, some doubt he'll ever really get it. "Closure for Alex would be knowing that people can't do this to him," Holland says. "The public has told him this is unacceptable, and the city has told him that, but the police department's deliberation is causing him concern."
"If, right now, we had the finish of the DOJ investigation and it gave us nothing, we'd be done," Martinez says. "But I don't know if this community will ever really get resolution on this."
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