After landing on the short end of an April Colorado Court of Appeals ruling in the long-running effort to fire the police officers who beat Michael DeHerrera a decade before, in April 2009, the City of Denver has decided to petition the state's highest court to hear the case.
It's the city's last shot. If Denver does nothing, police officers Randy Murr and Devin Sparks would be eligible for rehiring plus ten years' worth of back pay. Granted, the latter would likely be diminished by the amount of cash they'd earned in the interim — and a settlement is much more probable than the prospect of either ever wearing a Denver Police Department badge again.
Should the Colorado Supreme Court decline to hear the case, or choose to do so but decide against Denver, the city wouldn't be in a worse spot than it is right now. And if it wins, it not only would save a major chunk of change, but also strengthen its ability to punish miscreant employees...which makes this move worth the gamble.
In the meantime, though, the controversial case remains a prime example of the system run amok. And it all started over a trip to the bathroom.
On April 4, 2009, as described in the "Findings of Fact" section of a February 2013 Civil Service Commission order regarding Murr and Sparks, DeHerrera and a companion, Shawn Johnson, caused a stir at 5 Degrees, a now-defunct club in LoDo, when both tried to use the women's restroom. Bouncers subsequently escorted both men outside, where they encountered Murr, who was working security at the venue in an off-duty capacity. Murr asked DeHerrera and Johnson to leave, prompting physical contact of some sort, though witnesses couldn't agree on who did the pushing, shoving and/or striking.
In any event, Johnson was subsequently taken to the ground by one Gabriel Esquibel at Murr's instruction. Meanwhile, DeHerrera phoned his father, a Pueblo County Sheriff's deputy. But the conversation was interrupted when Sparks, who arrived after the original incident, got physical with DeHerrera in an extreme way. The reason, the document suggests, is that Murr told Sparks that DeHerrera had punched him earlier and needed to go to jail.
Afterward, Sparks insisted that he'd gone after DeHerrera in response to aggressive movement and resistance on the latter's part — actions not on view in video captured on a nearby HALO camera. Likewise, Murr told investigators that he'd seen DeHerrera try to hit Sparks, contradicting the visual evidence.
Here's the clip, courtesy of Complete Colorado:
The incident was major news for months — and it blew up even bigger in August 2010, when Manager of Safety Ron Perea determined that Sparks and Murr should be suspended for three days without pay but not fired for their actions.
This conclusion was so reviled by a significant and vocal percentage of the public that Perea subsequently resigned. Then, in March 2011, new Manager of Safety Charley Garcia fired Murr and Sparks, but they appealed the decision, and a hearing panel sided with them. Why? Because the cops had already accepted Perea's punishment (by not appealing the decision during a prescribed period), Garcia's move to sack them for the same offense represented the equivalent of double jeopardy.
DeHerrera's September 2011 comments to Westword about these developments ring with irony today. "I knew it would be a long process," he told us, "but everything seemed so clear. The video speaks for itself, so we thought everything was laid out for things to happen smoothly and efficiently."
Hardly. The February 2013 Civil Service Commission report essentially re-fired Sparks but reversed Murr's dismissal. That prompted an appeal by the Manager of Safety's office, and in December 2013, the commission supported Garcia's right to fire the officers despite their acceptance of the suspension because he had acted "within a reasonable period of time" and his actions were prompted by "new and material evidence."
In response, Murr and Sparks headed to Denver District Court, where the case ground forward over the course of four-plus years. Finally, in November 2017, the district court affirmed the Manager of Safety's actions. But the officers remained unsatisfied, turning to the Colorado Court of Appeals, which flipped the script again.
According to the appeals court's ruling released in April, Murr and Sparks "argue that appellee the Civil Service Commission of the City and County of Denver...erroneously interpreted the Charter of the City and County of Denver...to grant the Manager of Safety...implied authority to reopen their disciplinary matter, rescind the discipline previously imposed, and order more severe penalties, all after the order became final and the time for appealing it had expired." The simple conclusion of the three-judge panel that considered the dispute: "We agree with the officers."
Denver responded to the decision with a statement that said, in part: "The City is extremely disappointed and shocked by the Court of Appeals ruling, which effectively overrules previous decisions in its favor by the Denver District Court and Denver’s Civil Service Commission. The City can seek rehearing by the entire Court of Appeals or ask the Colorado Supreme Court to review the decision, but at this point the City Attorney’s Office, the Department of Public Safety, and Denver Police Department still need to confer about next steps."
After conferring, the City of Denver asked that the Court of Appeals as a whole (it consists of 22 judges) reconsider the panel's conclusions. After this request was rejected, the only options left were to accept the panel's decision and settle the case...or turn to the Colorado Supreme Court.
Denver opted for the latter. A formal request for a state supreme court hearing is expected to be submitted before June 20, further prolonging the pursuit of justice — if that's even possible anymore.
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