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Denver Gets Defensive Over Michael Marshall Jail Death Report

Deputies and emergency personnel looking at the lifeless body of Michael Lee Marshall, as seen in surveillance video.
Deputies and emergency personnel looking at the lifeless body of Michael Lee Marshall, as seen in surveillance video. Denver7 via YouTube

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A deputy takes hold of Michael Marshall near the beginning of the incident that led to the inmate's death. - DENVER 7 VIA YOUTUBE
A deputy takes hold of Michael Marshall near the beginning of the incident that led to the inmate's death.
Denver 7 via YouTube
The Death of Michael Marshall: Independent Monitor review — key findings

• The DSD made several necessary policy and training changes after the incident, including re-engineering its Use of Force and Use of Restraints policy, and implement Crisis Intervention Training ("CIT") for all deputies.

• Pursuant to the Settlement, the DSD and the City will make other improvements that include providing additional mental health services for inmates and implementing annual training for deputies on mental illness and use of force, including de-escalation.

We also make findings about significant deficiencies and concerns. Specifically:

• Although IAB is mandated to conduct thorough and impartial investigations, it mishandled its investigation into the incident by deeming it complete but not interviewing the subject deputies, questioning the nurses involved in the incident, or obtaining other information necessary to completely and impartially evaluate the use of force that was one of the causes of Mr. Marshall's death. While the deputies had been interviewed by the DPD as part of the criminal investigation, those interviews focused on assessing whether there had been criminal conduct, rather than whether the deputies complied with DSD policy, which falls within the IAB's jurisdiction.

• We believe the disciplinary decisions made by the DOS should have suspended the on-scene sergeants for their failure to prevent the inappropriate force against Mr. Marshall, which constituted a failure to supervise. Second, the DOS did not apply the most appropriate disciplinary conduct category to the use of inappropriate force by one of the deputies, Deputy Garegnani, resulting in a short suspension not commensurate with the seriousness of his misconduct.

• Despite national best practices regarding background checks for law-enforcement recruits, a deputy who participated in the use of force against Mr. Marshall was permitted to join the DPD as a police recruit while he was a subject into the criminal investigation into that use of force, and before there had been any internal investigation into the deputy's conduct.

• The DSD provides training on excited delirium, yet the deputies involved in this incident had little recollection of that training, and generally did not act in accordance with the City's protocol for handling excited delirium incidents.

• A nurse expressed concern during the incident about Mr. Marshall's ability to breathe, yet Deputy Garegnani continued to hold Mr. Marshall in the manner she had cautioned against, and no supervisor took action to resolve this conflict. The DSD currently lacks a clear policy requiring that, when time and circumstances permit, supervisors attempt to resolve conflicting urgent medical and security concerns raised during an incident or providing guidance on how to do so.

• The DOS has no guidelines on how it will determine when to release evidence of critical incidents, including video. The lack of such guidelines may have inadvertently invited public confusion, controversy and potential litigation about the release of the video in this case.

• Finally, almost three years after outside consultants recommended that the DSD develop a protocol for learning from all significant uses of force in Denver's jails, the DSD has yet to fully implement such a process, which we believe is essential in preventing other tragedies like the death of Mr. Marshall in the future.

In light of these findings, the OIM makes eight recommendations to the DSD and DOS. Regarding investigatory and disciplinary practices:

• The OIM recommends that the DSD make changes to the culture of its Internal Affairs Bureau to make sure that serious cases are investigated thoroughly and impartially, as DSD policy requires. This may include but not be limited to placing the management of IAB under civilian control, and;

• The OIM recommends that when misconduct may fall into multiple disciplinary conduct categories, the DOS should, in its disciplinary order, specifically explain why a particular category was chosen.

Regarding training:

• The OIM recommends that the DSD provide additional regular classroom and situation-based refresher training on identifying persons suffering from excited delirium and how best to respond to such incidents; and

• The OIM recommends that the DSD train supervisors on how to quickly resolve conflicts between urgent medical and security concerns, when time and circumstances permit, by weighing security risks against potential needs for immediate medical intervention in emergency situations.

Regarding policy:

• The OIM recommends that the DSD develop a policy that, when time and circumstances permit, requires supervisors to attempt to resolve urgent medical and security concerns that may be in conflict, and that cannot be resolved by medical staff and deputies alone. The policy should require a supervisor to prepare a report that documents the conflict and its resolution, and to participate in a non-disciplinary debriefing after the incident;

• The OIM recommends that the DOS evaluate its hiring policies and procedures for the DPD and the DSD to ensure that they do not permit potential recruits to be hired while they are under criminal or administrative investigation;

• The OIM recommends that the DOS publish written guidelines regarding the release of evidence of critical incidents, including video. The guidelines should balance the need for prompt public transparency with the need for confidentiality during active investigations, among other factors. The guidelines should explain, to the extent possible, the analytical framework that the DOS will use in evaluating requests for the release of evidence of critical incidents; and

• The OIM recommends that the DSD develop a formal protocol for, and an enhanced culture of, analyzing and learning from critical incidents in Denver's jails. This should include but not be limited to immediately prioritizing the development and full implementation of the force review protocol previously recommended by the OIR Group in 2015.

click to enlarge Deputy Director of Safety Jess Vigil, seen with Denver Police Chief Robert White, right. - CBS4 FILE PHOTO
Deputy Director of Safety Jess Vigil, seen with Denver Police Chief Robert White, right.
CBS4 file photo
Deputy Director of Safety Jess Vigil letter to Independent Monitor Nicholas Mitchell:

Dear Nick —

As you have requested, this is the revised comments/responses to the Marshall Report. Thank you for allowing the Executive Director of the Department of Safety to provide comment.

MARSHALL REPORT

Neither the IAB investigation nor the disciplinary decisions that followed were mishandled. While DSD IAB mistakenly believed it could rely upon the investigation conducted by DSD and did not need to conduct any additional investigation into the deputies' conduct, we disagree with this representation. Further, your report cites a procedural history that perhaps frustrated you. The investigation in the Marshall case is not unique in that regard. In fact, the process is set up to seek your input. There are times when there are disagreements with how investigations are proceeding. The process recognizes this, and avenues are available to you to raise your concerns. You did just that in this investigation and ultimately you certified the investigation as "thorough and complete." You allege that the investigation was flawed. Yet certifying the investigation as "thorough and complete" belies that claim. Moreover, you don't cite any instances or provide any examples where any evidence was unavailable or lost because of the procedural posture you found frustrating. To claim that the investigation was "flawed" without record support does not make it so.

Recommendation 1 of your report recommends changes to "the culture of its Internal Affairs Bureau to better insure that serious cases are investigated impartially and without bias as DSD Policy requires." In fact, cases are investigated impartially and without bias. The DOS is committed to making sure that the process is thorough, fair and completely free of bias. Further, DSD, as you know, is open to examining and evaluating the benefits of civilianization. However, nothing in the Marshall investigation demonstrates bias or partiality, nor is there a "culture" of bias or impartiality in DSD's IAB process. We do agree that after a criminal investigation into an incident has been completed, IAB should conduct its own investigation and not merely rely upon information obtained by the investigating law enforcement agency.

Contrary to your assertions, the disciplinary decisions in this case were not flawed. The DOS reviewed the conduct of all deputies involved in the incident and imposed only those penalties that it believes, in good faith, were supported by the evidence and could withstand the scrutiny of an appellate review. Unlike others involved in the disciplinary process, the DOS is the ultimate decision maker and must defend disciplinary actions taken when appeals by deputies are filed. As you know, the discipline you characterize as "not commensurate with the seriousness of the misconduct" was overturned by the CSA hearing officer. DOS was simply not willing to impose disciplinary action that was unsupported by the evidence and that would not stand on appeal. To do otherwise compromises the integrity of the process.

You find fault in one of the DOS Disciplinary Letters because "the disciplinary order did not explain why Category D was assigned, nor why Category E and F were not assigned." Under the Disciplinary Matrix, every inappropriate use of force is a Conduct Category D, unless, after consideration of several factors, which are set forth in the code, a good faith determination is made that the misconduct should be assigned a higher conduct category. Where a decision is made that the misconduct is a Conduct Category D rule violation, there is no need to present in the order or letter why Conduct Categories E or F were not selected. To do so would be an unnecessary and time-consuming exercise. Finally, why DOS decided that the misconduct was of a Conduct Category D nature can be deciphered from a fair reading of the disciplinary letter.

• DOS Response to OIM Recommendation 2: The DOS followed the Matrix, as it does in each case where disciplinary action is taken. That inappropriate force of a Conduct Category D was used by the disciplined deputies is adequately explained in the disciplinary letter. The OIM position on what discipline it believes should have been imposed was not only "incongruous with the Hearing Officer's ruling," as you suggest in this report, but it also was devoid of any record support. To say that the hearing officer's ruling "could [be] overturn[ed]" by the Career Service Board indicates a complete lack of appreciation for the legal standard that governs appeals from hearing officer decisions. The Career Service Board is bound by hearing officer findings and determinations unless they lack record support.

As the individual named in your report was neither charged criminally nor was the subject of disciplinary action for policy violations, it is not appropriate to name him and thus, DOS would ask that you redact his name where it appears in this report.

• DOS response to OIM Recommendation 3: The DOS has in place adequate safeguards to ensure that hiring decisions are made after a complete vetting of candidates. Hiring decisions are made after careful consideration of all relevant information. Decisions to hire candidates with prior law enforcement experience are subject to pre-employment investigations, which include a review of disciplinary histories. Nevertheless, the DOS will re-examine its hiring process to ensure that a candidate who has pending criminal or administrative matters not be considered for final placement until pending matters are resolved.

• DOS Response to OIM Recommendation 4: The evidence in the case did not support a finding that Mr. Marshall was suffering from excited delirium. Further, the fact that the deputies indicated that they could not recall their training with respect to excited delirium does not mean that DSD has failed to adequately train its officers with respect to excited delirium and the applicable protocol. Nevertheless, DOS agrees that providing training on a more regular basis, as determined appropriate by DSD, may be helpful for all DSD sworn personnel.

• DOS Response to OIM Recommendation 5 & 6: DOS agrees that adequate communication between deputies and medical staff is essential, which is why DSD agreed, as part of the settlement in this case to work with Denver Health and provide in-service training on the need for deputies to work with medical providers, to the extent reasonably possible, by coordinating efforts to ensure compliance with medical directives during mental health emergency situations. This will include supervisors. The DSD also agreed to develop a protocol to ensure better communication regarding inmates experiencing mental illness between correctional care medical staff and DSD staff. As written, however, your additional recommendations to set forth a specific protocol for "resolving urgent medical and security concerns that may be in conflict" does not appear to be feasible, as situations are constantly changing and deputies and supervisors need to be able to make split-second decisions concerning safety. We believe the settlement agreement more than adequately addresses any communication concerns between Denver Health and DSD sworn personnel.

• DOS Response to OIM Recommendation 7: Whenever criminal justice records are sought, DOS is required to consider the factors set forth in Harris v. Denver Post, 123 P.3d 116 (Colo. 2005). These factors include:

(a) the privacy interests of individuals, if any, who may be impacted by a decision to allow disclosure of the record;
(b) the agency's interest in keeping confidential information confidential;
(c) the agency's interest in the integrity of on-going investigations;
(d) the public purpose to be served in allowing disclosure of the record; and
(e) any other pertinent considerations relevant to the circumstances of the particular records request, including whether disclosure would be contrary to the public interest.

This requires a "case by case" review. To have the policy the OIM appears to be suggesting in this report abdicates our responsibility under Harris. These factors are applicable to the release of video of critical incidents. Since Colorado law specifically provides what the considerations should be, DOS does not have a separate written policy.

DOS Response to OIM Recommendation 8: DOS is open to considering the development of a "formal protocol" to identify learning opportunities from critical incidents. This is an area which has been an ongoing discussion to determine the logistics of such implementation.

Sincerely,

Jess Vigil
Deputy Director of Safety

Click to read The Death of Michael Marshall: Independent Monitor review.
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