Longer Suspension for Sexy Text Than for Killing Michael Marshall

Deputies and emergency personnel looking at the lifeless body of Michael Lee Marshall, as seen in surveillance video. Additional images below.
Deputies and emergency personnel looking at the lifeless body of Michael Lee Marshall, as seen in surveillance video. Additional images below. 7News file photo
Attorneys and family members of Michael Lee Marshall, who died in Denver's downtown jail circa November 2015, call discipline imposed on two deputies and a supervisor over the incident incredibly insufficient. And indeed, previous suspensions of Denver law enforcers in cases that didn't lead to death, including actions involving a sexually explicit text, flashing a badge to get faster restaurant service and more, were as long or longer than those handed out in regard to Marshall's passing.

Originally, seven Denver Sheriff Department deputies faced possible discipline in the Marshall case. In the end, however, only two received punishment. According to the Denver Department of Public Safety's office, Deputy Bret Garegnani has been suspended for sixteen days for failing to follow use-of-force policies and procedures by using inappropriate force, and Deputy Carlos Hernandez was suspended for ten days in relation to the same offense. In addition, Captain James Johnson received a ten-day suspension for failing to observe department policies and procedures. All three have the right to appeal their suspensions to the Career Service Hearing Office within fifteen days.

When asked about the discipline imposed, Darold Killmer, one of the attorneys representing Marshall's family, says, "We're shocked that it was so light. A man died, and three people are going to take a couple of weeks off work. That seems like an astonishingly inadequate response given the gravity of the case."

Marshall, who was fifty at the time of his death and had a history of mental illness, was physically small in stature, standing five-four and weighing 112 pounds. He was taken into custody at the Denver Van Cise-Simonet Detention Center on November 7, 2015, on what Killmer's firm, Killmer, Lane & Newman LLP, characterizes as a minor, nonviolent infraction. Four days later, he began to display erratic behavior and was taken down in a jail corridor by several deputies, who pressed him against the floor. He had trouble breathing during the episode but was revived, only to be restrained again in the same manner that had caused his previous difficulties. He eventually aspirated on his own vomit, leading to a loss of consciousness. He died nine days later, on November 20.

The late Michael Lee Marshall.
Family photo via the Colorado Independent
In January 2016, then-Denver District Attorney Mitch Morrissey declined to file criminal charges against any of the law enforcers involved in the case. This week's disciplinary ruling represents at least some censure, Killmer acknowledges.

"Just demonstrating consciousness is better than anything Mitch Morrissey ever did in response to a police killing," Killmer allows. "If that's the standard, it's better. They did discipline people and thereby acknowledged that the sheriff's deputies and others were responsible for killing Michael Marshall. But suspending somebody seems like a very cavalier response. And then they just want to go about business as usual."

Adds Mari Newman, another attorney working with Marshall's family: "They acknowledge that there was wrongdoing by the sheriff, but this small amount of discipline doesn't do anything to change anything in the future. What's to disincentivize them from behaving this way in the future? This just perpetuates the problem."

The Marshall situation is hardly unique, Killmer points out, citing the 2010 in-custody death of Marvin Booker, which eventually resulted in 2014 court victory and a $6 million settlement. "Marvin Booker was killed in a very similar way; deputies piled on top of him, excessively restraining a small man," he says. "The same thing happened to Michael Marshall. Large people restrained him on all sides until he died."

"If the Booker verdict by a jury of independent citizens didn't send the City of Denver a message, what does it take?" Newman asks. "The only message the city seems to have learned was how to start the cover-up immediately." Referring to discipline letters released following the discipline announcement, Newman says, "As we read them, it's clear that they began covering up immediately after killing Michael Marshall. The way they engaged with the coroner demonstrates that instead of trying to get to the truth, they were trying to cover their tracks and justify their conduct. Everything screams that what they learned was how to cover up wrongdoing, not how to avoid it in the first place."

Independent Monitor Nicholas Mitchell. - FILE PHOTO
Independent Monitor Nicholas Mitchell.
File photo
Also questioning the length of the suspensions is the Office of the Independent Monitor, headed by Nicholas Mitchell. The office has released the following statement:
On November 11, 2015, OIM staff responded to the use of force involving Michael Marshall, and we have actively monitored the investigation and disciplinary process since that date. After a preliminary review, we are concerned by today’s decisions by the Executive Director of Safety for several reasons, including our view that the discipline is not commensurate with the seriousness of the misconduct. We are currently reviewing the decisions, and will provide further analysis in an upcoming report.
Presumably Mitchell's review will include a look at his own office's 2016 annual report, which offers many opportunities to compare the latest suspensions to ones imposed over the past year. We've included a slew of excerpts from the report on the second page of this post. For example, one officer was given a thirty-day suspension for unfastening his pants to adjust his uniform in front of a domestic-violence victim. Also present was a female friend of hers with whom he subsequently exchanged phone numbers and began texting, with at least one of the messages described as sexually explicit.

In addition, a detective was originally given an eighteen-day suspension for selling a city-owned trailer on Craigslist; an officer was suspended for ten days for tossing a bag of marijuana at a fellow cop, then pulling his gun and jokingly trying to arrest him; and another officer earned a ten-day suspension for failing to show up for five consecutive shifts without informing a supervisor. And more recently, Sergeant David Shelley was reportedly suspended for thirty days for using his badge to bully staffers at a Mexican restaurant in Castle Rock to serve him more quickly.

Is further court action likely in this case? Killmer is keeping his options open. In his words, "The Marshall family is a strong family, and they're determined to secure justice for the community and for their family." He also mentions that "we're expecting a second shoe to drop. This decision is disciplinary, but the city has done nothing to reach out to the family or to the community to give assurances that steps have been taken or will be taken to prevent this kind of thing from happening again. We want them to reach out to us and the community with those assurances."

In the meantime, he goes on, "There needs to be accountability at the upper levels of the sheriff's department. The message being sent here is that if the worst scenario imaginable happens and someone dies, you might get suspended for ten days, but you won't get into big trouble — only a little trouble. And a lot of guys are walking away scot-free. It's really outrageous."

Continue for excerpts from the Office of the Independent Monitor Report about previous officer suspensions that were as long or longer than the ones in the Michael Marshall case.

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts