Captain Suspended in Michael Marshall Case Will Fight His Discipline in Court

The late Michael Marshall.
Family photo via the Colorado Independent
The late Michael Marshall.
Almost three years have passed since the jailhouse death of Michael Marshall, and the city is still dealing with the discipline of three of the officers involved in the incident, who were suspended for using excessive force (or not intervening), putting Marshall in a coma that lasted for nine days before he was taken off life support.

The city is likely to wind up in court over the ten-day suspension of Captain James Johnson, the highest-ranking officer at the scene when Marshall became comatose in November 2015.

Johnson and two of his deputies, Carlos Hernandez and Bret Garegnani, were disciplined with several days of unpaid suspension for their part in Marshall's death. Although Marshall died in late 2015, their discipline was handed down by the Department of Safety on April 17, 2017, after a drawn-out internal investigation by three city departments, including the Department of Safety, which oversees the fire, police and sheriff's departments.

The officers served their suspensions last year: Johnson and Hernandez each got ten days, and Garegnani was suspended for sixteen days. But all three officers appealed their discipline in 2017 to recoup lost wages and clear their records.

According to a report on the incident from the Office of the Independent Monitor, while Garegnani and Hernandez used force to restrain Marshall, which led to his death, Johnson never touched him. Instead, the captain was suspended for ten days by the Department of Safety for his "lackadaisacal approach" and "passive management" in the events leading up to Marshall's death. Throughout the entire incident, Johnson stood near a back wall and only approached the scene a few times to get a better look.

The first level of appeal was with the Career Service Hearing Office, which fields workplace grievances for issues like dismissals, suspensions, whistle-blower violations and other issues. A hearing officer heard all three of the officers' appeals in November, and he repealed the suspensions in each case. The star witness who testified on Johnson's behalf and swayed the officer was Jeff Wood, a former Denver Sheriff's Department captain who retired with an open use-of-force complaint after punching an inmate in the face.

"[Wood's] experience and familiarity with Johnson’s duties made Wood distinctly qualified to opine as to Johnson’s performance of the duties of the Captain," said hearing officer Bruce Plotkin in his decision to reverse Johnson's ten-day suspension last year.

The Department of Safety was not pleased that the suspensions, which many believed were wrist slaps to begin with, were overturned. So the department appealed the decisions in each of the cases.

Next came the second level of the long and winding appeals process. The Department of Safety asked the five-member Career Service Authority Board to reverse the hearing officer's decisions. And last month, the board did just that, upholding the department's original suspensions. The Denver City Attorney's Office is still drafting the board's official decision, which will explain its rationale for reaffirming Johnson's discipline.

"It's really hard [to comment on the decision] without having anything to review as to what their thought process was," says Daelene Mix, spokesperson for the Department of Safety. "We'd have to review that and see what their decision-making was before we can say anything, and we just don't have that at this time."

While most appeals tend to stop at the second level, Johnson's attorney says he is going to go the extra mile. This fight over Johnson's ten-day suspension is going all the way to district court just as soon as the official decision is published.

"I believe the hearing officer’s findings [in the first appeal] were legally sound and based on the evidence," said Daniel Foster, the attorney representing Johnson, in a statement to Westword. "We are confident this decision will be reversed by the district court, as the district court is not a political entity and will make a decision based on the law, not based on public opinion."

As for Garegnani and Hernandez, the Career Service Authority Board will consider whether to reaffirm their suspensions during a public meeting on Thursday, May 17.

In late 2015, Marshall was arrested for trespassing and held in a Denver County detention center on a $100 bond. He was known by law enforcement to have mental health issues and was even prescribed psychiatric medication while in the custody of the Denver Sheriff's Department. Two days after Marshall began refusing his medication, he began behaving erratically and was acting aggressively while outside of his cell on free time.

He was moved into a secure hallway, and when he attempted to leave the area, the 112-pound Marshall was restrained by four officers, held face down on the ground and placed in handcuffs and leg irons. Six officers used force, while three sergeants and a captain, Johnson, stood by and watched. A seventh officer brought a spit hood to cover Marshall's head so his vomit wouldn't get on the officers. Marshall's heart stopped, and he would eventually choke on his own vomit.

Marshall was rushed to the Denver Health Medical Center, where he remained on life support for nine days before dying.

"Captain Johnson has repeatedly expressed his sympathy for what happened to Mr. Marshall," Foster wrote. "However, Captain Johnson was in no way responsible for Mr. Marshall’s cardiac arrest and subsequent death."