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Denver Diner: Attorney, witness of brutality incident decry accused cops' back-to-work order

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Update: Last week, we noted that Denver police officers Ricky Nixon and Kevin Devine had been given the go-ahead by the Denver Civil Service Commission to hit the streets again despite having been fired last year for their actions in the 2009 billy-clubbing and macing incident at the Denver Diner. However, a lawsuit over the men's Diner actions is still pending. Look below for a comment from the attorney in that case, plus the other takes from excessive-force critics, followed by our original coverage.

As is detailed in the lawsuit, also included here, Kelly Boren, Sharelle Thomas, Ana Ortega and Kristal Carrillo were at the restaurant in 2009 when they say Nixon and Devine menaced them with nightsticks, pulled or shoved a number of them to the ground and sprayed them with mace despite no compelling evidence of actual wrongdoing. This contention is illustrated later in this post by a series of photos showing Nixon and Devine in action.

Siddhartha Rathod, the lawyer representing the women in the filing, stresses that the suit remains active. Right now, he says, the plaintiffs are awaiting rulings on motions by the City of Denver, and while no trial date has been set, he's hopeful that one will be established in the not-too-distant future.

In the meantime, Rathod provided the following statement:

The four women who were assaulted and brutalized by Denver Police officers Ricky Nixon and Kevin Devin in front of the Denver Diner are disappointed, but not surprised, by the latest decision by the Civil Service Commission to serve and protect their own. The Denver Police department has a long standing culture of failing to discipline officers who engage in rampant constitutional violations, sending clear messages to the entire department that police brutality and dishonesty are tolerated.

Also weighing in is Mu Son Chi, racial justice and civil-rights director for the Colorado Progressive Coalition, an organization that has teamed up with Alex Landau a student who was beaten bloody in a separate matter involving Officer Nixon. The City of Denver subsequently paid Landau a $795,000 settlement, even though the case against Nixon has yet to be resolved; it's currently the subject of a federal inquiry.

"The city of Denver has yet again shown its inability to remove dangerous and lying officers from the streets," Chi said in a statement. In his view, the "decision is yet another example of the city's lack of institutional control over its law enforcement agency. More than ever, we need outside intervention by the federal government. We are again calling on the United States Department of Justice to launch a patterns and practices of abuse investigation into Denver law enforcement.

"Additionally, we are calling on the Mayor to meet with us to talk about these issues," he added. "Many people in the community do not know that the mayor is refusing to meet with police accountability groups."

Similarly frustrated is Miriam Peña, a CPC staffer who was at the Diner when the 2009 incident took place; learn more in her March interview with Westword.

"We know that many officers do their jobs with honesty and integrity. However, it is imperative that we remove violent officers from the streets," she said in a statement of her own. "We are calling on officers to step forward and speak out with their concerns about Denver law enforcement. Our 'Blue Line' offers a confidential way for officers to share concerns that exist within Denver law enforcement. We are asking officers who have been unable to address their concerns, because of fear of retribution or inadequate responses, to cross the blue line of silence and to begin working with us to begin making our community a safer place."

Continue to read our previous coverage, which features photos of the Denver Diner incident and the lawsuit against officers Nixon and Devine. Original post, 9:15 a.m. October 12: In April 2011, Officers Ricky Nixon and Kevin Devine were fired for their actions in the 2009 billy-clubbing and macing incident at the Denver Diner. But they were reinstated this past January, and while the city appealed this decision, the Denver Civil Service Commission has now decided they've been punished enough -- a decision that appalls the Manager of Safety and City Attorney. See their responses and learn more about the Denver Diner case below.

The details of the Denver Diner incident are spelled out in a still-active lawsuit filed by four women, Kelly Boren, Sharelle Thomas, Ana Ortega and Kristal Carrillo; our original September 2011 post, complete with photos and the lawsuit itself, are on view below. The document alleges that officers Nixon and Devine menaced the four women with nightsticks, pulled or shoved a number of them to the ground, sprayed them with mace and otherwise mistreated them, despite no compelling evidence that they'd done anything wrong.

By the way, Nixon was also involved in the 2009 beating of Alex Landau, which resulted in the city paying a $795,000 settlement. However, the Denver investigation of the case was put on hold in June pending the results of a separate federal inquiry.

After the Denver Diner incident, Nixon and Devine allegedly falsified reports and fabricated charges against the women -- and that's the rationale then-Manager of Safety Charles Garcia used to fire them. However, a three-member panel reviewing the matter on behalf of the Denver Civil Service Commission subsequently determined that the inaccuracies in their reports were not submitted with "an intent to deceive or hide the truth." As such, the officers were reinstated, with promises of back pay and benefits.

These goodies were put on hold when the city objected to the ruling -- an action that ultimately went forward despite Denver missing a deadline to file an appeal. Now, however, the commission has reportedly determined that even though Nixon and Devine did use excessive force in the incident, their actions warranted suspensions of three days and ten days, respectively, not firing.

In contrast, the commission overruled the panel's reinstatement of officers David Torrez and Jose Palomares, who'd been told not to engage in a car chase but did anyhow, damaging their own vehicle in the process. But while this decision pleased Denver City Attorney Doug Friednash, it didn't make up for the move in regard to Nixon and Devine. Here's a statement he released after the decision.

Today, our office received two important decisions from the Civil Service Commission. We are pleased with the decision in Torrez and Palomares, but profoundly disappointed by the Nixon and Devine decision. The Torrez and Palomares decision by the hearing officers was illogical and justifiably reversed. In order to restore the public's confidence it is critical to send a message that the City will not tolerate police officers who lie during their investigations to cover up their misconduct and avoid discipline. The Nixon and Devine decision is deeply disturbing in that it recognizes the authority of hearing officers to ignore the thorough investigation conducted by the Police Department and the facts found by the Manager of Safety. The Commission is correct that the Denver City Charter prevents them from making independent findings of fact, but it is the Commission's own Rule 12 that gives overly broad authority to the hearing officers. The Commission should step forward in its rule-making capacity and change Rule 12. The Manager of Safety is entitled under the Charter to deference in his decision-making. The Commission has the power to make hearings a review of the Manager's decision instead of allowing the hearing officers to conduct an entirely new trial; a process that has resulted in inconsistent and incorrect outcomes.

Manager of Safety Alex Martinez was similarly disturbed by the reinstatement of Nixon and Devine. Here's his statement:

I agree with the Civil Service Commission's decision in Torrez/Palomares to reverse the hearing officer's order to reinstate the officers. I also agree with the Commission's statement that administrative hearings "are not intended to be full-fledged trials." Yet that is precisely what Civil Service Commission hearings have become -- "full-fledged trials."

Because hearing officers hold "full-fledged trials," they can make different factual findings than the Manager of Safety, as they did in Nixon/Devine. Yet in cases where there is conflicting witness statements, it is not unlikely that two fact finders might reach different decisions. In Nixon/Devine, the Commission deferred to the hearing officers' fact finding, citing the Charter to show their hands are tied and they cannot make their own factual findings. But it is the Commission's process, guided by the Rule they made, that gives hearing officers the power to make a separate and independent decision instead of reviewing the Manager's decision for reasonableness. Had the hearing officers reviewed the Manager's decision, instead of making their own factual findings on disputed evidence, they would have affirmed the Manager's decision.

The fact that these recent decisions rested entirely on findings by contract hearing officers, ignored painstaking fact-finding in the Internal Affairs Investigation and by the Manager of Safety, and each took a year and a half after the Manager's orders, illustrate that the process created by the Commission in their rule-making authority is in desperate need of reform.

We've made a request for comment to Siddhartha Rathod, the attorney representing the four women suing the Denver Diner. When and if he gets back to us, we'll update this post.

Continue to learn more about the Denver Diner incident, including photos and the complete lawsuit. Original post, 11:09 a.m. September 20, 2011: In April, Denver cops Ricky Nixon and Kevin Devine were fired in relation to a billy-clubbing and macing incident that took place in 2009.

Now, the four victims in that case have filed lawsuits against the City and County of Denver, charging that as much damage was done to them by bureaucracy as by the officers in question.

"The officers being fired is a start, but only a start," says attorney Siddhartha Rathod, who is representing victims Kelly Boren, Sharelle Thomas, Ana Ortega and Kristal Carrillo in conjunction with fellow lawyer Qusair Mohamedbhai. "These women were brutalized by Officer Nixon and Officer Devine, but the City of Denver then participated in the malicious prosecution of these women. And this isn't an isolated incident. The Denver Police Department has a culture of allowing its officers to brutalize people, of allowing its officers to lie and cover up."

The suits filed in the names of Boron, Thomas, Ortega and Carrillo include frame-by-frame breakdowns of a HALO video of the incident; they're included below, along with a copy of Boren's complaint. But here's how Rathod summarizes the incident.

"On July 12, 2009, Officer Nixon was working in an off-duty capacity at the Denver Diner -- and he was in uniform," he says. A short time earlier, "Kristal had been a victim of an assault in the restroom. She was attacked by an unknown party and was defending herself when Officer Nixon grabbed her, dragged her outside, arrested her and handcuffed her. In the video, Ana comes outside -- she'd been in the bathroom with Kristal, and she can be seen telling Officer Nixon, 'She didn't do anything wrong.' But he's basically not listening to her, so she walks a little bit away.

"Just at that time, Sharelle and Kelly arrive. Sharelle had just graduated from Colorado Christian Academy, and they arrived via pedicab. They're walking straight to the door when Officer Devine, who's smoking a big cigar, can be seen coming in from the right side of the video and pushes Sharelle. She stumbles forward, and when she stands back up, she says something to the effect of 'You can't treat me that way,' which any citizen should be able to say to an officer or anyone else in that situation."

At that point, Rathod goes on, "Officer Devine pulls out his nightstick and starts waving it in Sharelle's face. He then grabs her by the arm and starts pulling her toward where Kristal is on the ground in handcuffs. He's about to strike Sharelle with his nightstick, but stops inches away. Kelly then steps in between Sharelle and Officer Devine, to stop him from striking her in the face -- and Officer Devine grabs Kelly by the neck and throws her. And he's a big guy, She goes completely off the ground. And then he grabs Sharelle and yanks her onto the ground, and Officer Nixon pins her down.

"Ana sees all this, and she's saying, 'What are you doing?' when Officer Devine, still smoking the cigar, grabs her and throws her down to her knees. Then he takes her arm behind her back and puts his nightstick into her shoulder -- and right as he's about to assault her, Officer Nixon pulls out his mace and sprays it maybe two inches from her face before taking a couple steps to the left and macing Sharelle and Kelly."

Ortega was subsequently handcuffed, as was Thomas -- and Rathod points out that assorted officers on the scene offered no help to the maced women even as they treated their own eyes with saline solution. Amid this scene, "Anna, who had been on her knees, stands up and asks for help, and Officer Nixon grabs her by the throat with both of his hands and slams her to the ground. Kristal then tried to help her, and Officer Nixon slams his fist full-force into her face."

As Rathod points out, none of the women had done anything wrong -- and Carrillo was actually a victim of an attack before the officers took charge. Nonetheless, only Thomas was released, while the other three were charged with assorted infractions because "Officer Nixon and Officer Devine falsified police reports and fabricated charges," he maintains.

The HALO video of the incident was never produced during the criminal cases against Carrillo, Ortega and Boren. They didn't know of its existence until officers Nixon and Devine were fired earlier this year. After their sacking, Westword confirmed that Nixon had also been involved in the beating of Alexander Landau. The incident led to a settlement with Landau for $795,000.

Lacking this information, Carrillo, Ortega and Boren pleaded to a deferred judgment -- one that would eventually wipe the incident from their records. But Rathod says they would never have done so had the City of Denver provided the video and other exculpatory evidence, which would have given them the tools to prove that they'd done nothing wrong and the officers had lied.

Thomas suffered in a different way. She was hospitalized after the Denver Diner incident, and what Rathod calls "foreign debris" was removed from her eye. A year later, she had to undergo eye surgery.

The lawsuits against Denver and the officers were originally filed in state court this past July -- "but recently, the City of Denver and the police officers removed the case to federal court," Rathod allows. "We think it's ironic that the City of Denver doesn't want a Denver jury to decide what happens to the Denver Police Department." The four cases remain separate, but he expects them to be consolidated in the future.

In addition, Carrillo, Ortega and Boren "are trying to go back and withdraw their original guilty plea," he says. "That's not going to affect their civil case, but it's a matter of principle, a matter of right and wrong. What happened to these women, from the assault to the prosecution, was wrong -- anybody who takes the time to listen to the story of these women can see that. And I think, clearly, the citizens of Denver have seen that.

"These four women were brutally assaulted and maced by officers Nixon and Devine. They were then wrongfully prosecuted by the City and County of Denver. And absent people with the courage of these four women to step forward and say, 'This conduct is wrong,' this kind of thing is going to keep happening."

Look below to see a CBS4 report featuring excerpts from the HALO video, a frame-by-frame breakdown featuring text from one of the suits, and the Boren complaint.

Ms. Ortega (far left) is wearing a salmon/pink colored skirt with a white blouse; Officer Nixon (third from left) is a uniformed Denver Police Officer and Caucasian male with a shaved head who is wearing black gloves; Ms. Pena (far right) is wearing a red dress and has brown hair; Ms. Carrillo (on ground) is wearing jeans and a black t-shirt with a light red pattern in the front, currently handcuffed and seated with her head pressed forward; and an unknown Caucasian male (second from left) wearing a gray shirt and black pants is an employee from the Denver Diner. Ms. Vidal (top right) is wearing a white top and a black skirt; Ms. Ortega (bottom right); Officer Nixon (second from left); Ms. Pena (middle); Ms. Carrillo (on ground); unknown Denver Diner male (far left); and Ms. Boren and Ms. Thomas (far right) are currently not visible as they are behind the bicycle and tree. Officer Devine (top middle) is a uniformed Denver Police Officer with brown hair, holding a baton in his right hand; Ms. Boren and Ms. Thomas (far right) are currently obstructed as they are behind the bicycle and tree, although Ms. Thomas' arm can be seen coming into the picture from behind the tree; Ms. Ortega (bottom middle); Officer Nixon (top left); Ms. Pena (bottom right); unknown Denver Diner male (far left); Ms. Carrillo (on ground); and Ms. Vidal (top right). Ms. Boren (far right) is a Caucasian female, standing next to the bicycle taxi, with blond hair wearing a red dress and white blouse. Ms. Thomas (far right) is African-American, standing to the right of Ms. Boren. Both women are facing Officer Devine (middle), who is grabbing and pulling on Ms. Thomas' right arm. In Image 4, Officer Devine can be seen smoking a large cigar. Ms. Boren is pushed by Officer Devine and thrown backwards onto the ground. Fransisco Macias and Jay Spencer (top right) and other males are seen as well. Ms. Thomas is on the ground at the feet of Officer Nixon after being thrown down by Officer Devine. Ms. Thomas is unable to get up at this point. Officer Devine took his cigar out of his mouth and threw it to the ground. He then lunged towards Ms. Ortega and with his baton and shoved her backwards. Officer Devine then grabbed Ms. Ortega's left arm, partially spun her, and pulled her towards him. Ms. Ortega fell to her knees, and Officer Devine placed Ms. Ortega's left arm behind her back, and in a wrist lock. While holding Ms. Ortega's arm behind her back, Officer Devine forcibly placed his baton in between Ms. Ortega's neck and shoulder blade. Ms. Ortega was subdued, and at no time was she resisting arrest or combating Officer Devine. Ms. Ortega suffered bruising to her chest due to Officer Devine's violence against her. Officer Nixon approached Ms. Ortega while she was on her knees, restrained by Officer Devine. At point blank range, Officer Nixon pepper sprayed Ms. Ortega in the face and eyes. Ms. Ortega was immediately overcome with extreme and severe pain. Ms. Ortega screamed out, asking why she had been pepper sprayed. Officer Nixon is pepper spraying Ms. Thomas (Image 16), and then approaching closer and pepper spraying Ms. Boren (Image 17). Ms. Pena (middle) wearing the red dress is pleading with Officer Devine to not hurt Ms. Ortega.

Kelly Boren vs. The City and County of Denver

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