Attorney Darold Killmer, speaking in advance of a press conference scheduled for 12:30 p.m. today, November 1, in front of the Van Cise-Simonet Detention Center, 520 West Colfax Avenue, says, "The Marshall family is grateful to have this chapter behind them. This will help them with closure from their tragic loss. And they're especially grateful that Michael's legacy will lead to such a vast improvement in how jails are run and how mentally ill people will be treated by the city."
Co-counsel Mari Newman adds that the pact is "a starting point. There's always more cities can do, including Denver. But this is an excellent step forward in dealing with a countrywide problem."
Denver hasn't always been so cooperative when it comes to dealing with the Marshall case. Indeed, the Colorado Independent had to file suit in order to obtain a video of his final moments; the footage is on view here. But Killmer believes "the city deserves credit for a thoughtful approach in agreeing to a significant remedy to the family and an agreement to change faulty practices and policies. Cities are frequently stubborn about changing their ways, and Denver always has been. So this is an optimistic moment of Denver honestly trying to solve problems that have been so vexing for cities."
According to a Denver District Attorney's Office decision letter explaining why criminal charges weren't pressed against deputies involved in the matter, Marshall was arrested for trespassing on November 7, 2015, after which he was placed in the Denver Detention Center's 4D pod, described as a "special management unit on the fourth floor."
Prior to his jailing, Marshall had reportedly refused to take medicine prescribed to fight the effects of schizophrenia, and he'd had six police contacts over a 48-hour period. During 911 calls, he's said to have been "rambling" and engaged in "ranting."
On November 11, Marshall was allowed free time out of his cell, but when he "was observed behaving in a strange and erratic manner" and approaching another inmate aggressively, deputies intervened and took him to an area dubbed a "sally port," with a bench on one side of a long hallway.
It's at this point the video begins. See it here:
The clip shows Marshall slumping to the floor of a Denver jail corridor after being pushed by a deputy in an action that was forceful but not overtly aggressive. The deputies responded by holding Marshall down (even though he didn't appear to be struggling) before transitioning into an unsuccessful attempt to revive him. An autopsy determined that, in all likelihood, he choked to death on his own vomit.
The incident strikes Killmer as even more shocking given that "Michael Marshall was killed in the jail less than a year after the Booker settlement" — a reference to the 2010 jail death of Marvin Booker, which resulted in a $6 million payout by Denver. "One would think the city would have learned a lesson from the Booker verdict that they can't run their jail that way. But Michael's killing was chillingly similar. It was as a direct result of the overwhelming restraints used by the corrections officers on a very small, homeless African-American man. Michael was only five-foot-four and 112 pounds, but they used a one-size-fits-all response. They treated a mental-health crisis as an example of insubordination and overwhelmed a person who simply needed medical attention."
Newman calls "the housing of people with mental-health challenges in jails when what they really need is mental-health care" a "persistent problem that the city has really needed to take into account."
New procedures Killmer refers to as the "Marshall Rights" will attempt to do so. They're described in the following summary from Killmer, Lane & Newman, LLP, the firm in which the two attorneys partner:
1. Denver will fund and fill two additional full-time positions for on-site mental-health providers at the Van Cise-Simonet Detention Center and the Denver County Jail for twenty-four hours a day/seven days per week (one position per facility). These positions will be filled by nurses who are specifically trained in dealing with individuals experiencing mental illness and/or licensed clinical social workers.
2. The Denver Sheriff’s Department (DSD) will now require in-service training on an annual basis for all deputies regarding mental illness in the custodial setting.
3. The DSD will require in-service training on an annual basis for all deputies specific to mental illness and the use of force, with a focus on the custodial setting, de-escalation, tactical options, planned course of action per the Use of Force Policy, and other areas determined by the DSD to be relevant and appropriate. The DSD will develop and implement the initial training session in 2018 and will conduct annual in-service trainings beginning in 2019.
4. Denver Sheriff’s Department will develop a protocol to ensure better communication regarding inmates experiencing mental illness between correctional care medical staff and DSD staff, including supervisors.
5. By March 2018, the DSD (in conjunction with the Department of Safety) will develop a streamlined protocol to allow immediate family members who wish to visit an inmate who has been transported to a correctional care medical facility as a result of a serious/critical injury or illness which occurred at one of Denver’s jails to make a visitation request and ensure that a prompt response to such request is provided, including the facilitation of such visitation, if it is determined that the requested visitation does not inappropriately compromise safety and security and is allowed by the facility. Visitation shall not be denied based upon bond status. As part of this written protocol, a point of contact will be designated who will be responsible for notifying the inmate’s immediate family of the hospitalization and providing information regarding the circumstances related to the inmate’s hospital admission to the extent reasonably possible.
6. By March 2018, the DSD will commence a review and revisions to mental-health policies to remove discretionary language, where determined appropriate, relating to deputies at DDC and COJL contacting medical/mental-health professionals when they encounter mental-health concerns/issues. At a minimum, DSD policy will specifically require deputies to contact medical/mental-health professionals as soon as reasonably possible when they encounter mental-health concerns/issues.
7. For a period of five years (from December 2018-December 2023), the Denver City Attorney’s Office will provide periodic reports regarding the DSD’s training as set forth above. Such reporting will also be included as part of the Denver Sheriff Department’s Annual Report during this five-year period.
Even so, Killmer believes such staffing "is long overdue for a city the size of Denver. I think it should have been done years ago, and if it had been, Michael would still be alive."
By the way, the $4.65 million payment to the Marshall family is the same amount a jury originally voted to give Booker's loved ones. This time around, Denver offered this amount before any lawsuit had been filed — though the two-year statute of limitations was only days from expiring.
One more thing: Seven Denver Sheriff Department deputies faced possible discipline in the Marshall case. In the end, however, only two received punishment. Deputy Bret Garegnani was given a sixteen-day suspension for failing to follow use-of-force policies and procedures by using inappropriate force, and Deputy Carlos Hernandez earned a ten-day suspension in relation to the same offense. In addition, Captain James Johnson received a ten-day suspension for failing to observe department policies and procedures.
The length of these suspensions was shorter than previous ones handed out to Denver law enforcers in cases that didn't lead to death, including actions involving a sexually explicit text and flashing a badge to get faster restaurant service.