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Marvin Booker's family upset at delay in lawsuit against city, deputies they say caused his death

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Justice for the family of Marvin Booker may have to wait. On Monday, Booker's brother, sister-in-law and cousins stood in front of the statue of Martin Luther King, Jr. in City Park and expressed their disappointment that the civil lawsuit they filed against the city and the sheriff's deputies whose actions they say led to Booker's death at the Denver jail in July 2010 will now be delayed. The trial was supposed to start today.

"We know for a fact that it was a murder that night," said Booker's brother, Spencer Booker, a preacher in Kansas City. "They need to face us."

On July 9, 2010, the 56-year-old Booker was brought to the Van-Cise Simonet Detention Center after he was arrested for failing to appear in court for a charge of possession of drug paraphernalia. He spent several hours in the jail's processing area, mostly sleeping. At some point, he took off his shoes "for comfort," according to the lawsuit.

Attorneys for Booker and the city differ on what happened next. In the civil lawsuit Booker's family filed in October 2011 against the city, four law enforcement officers, Denver Health and two nurses, attorney Darold Killmer recounts the events like this: When Booker's name was finally called, he began walking toward the booking desk -- without his shoes. When he realized he didn't have them, he told the deputy who'd called his name that he needed to retrieve them from underneath his chair.

The deputy told him not to, but Booker didn't listen. The deputy then "pursued Mr. Booker and grabbed his arm in an attempt to restrain him," Killmer wrote. "In what may fairly be described as a massive over-reaction, four other deputies then rushed in, violently restraining each of Mr. Booker's limbs and wrestling him" to the floor. One deputy put him in a "sleeper hold," while others attempted to subdue him with nunchucks, handcuffs and a Taser. They then carried his "limp, lifeless" body to a holding cell and left him until someone realized he wasn't breathing and called for help.

Continue for more on Booker's case. However, attorneys for the defendants say the force used on Booker was necessary. They say he was belligerent, spitting at officers and telling them, "Fuck you." He resisted gentler attempts to restrain him, they say, and showed surprising strength in doing so.

They also point out that Booker suffered from several medical conditions, including congestive heart failure, chronic obstructive pulmonary disease, depression, bipolar disorder and schizophrenia. His heart was twice the normal size and an autopsy showed he had cocaine in his system. Booker, the defendant's lawyers wrote, "possessed most, if not all, of the classic symptoms for somebody at risk of sudden cardiac death."

This past July, the defendants asked a federal court judge to dismiss the civil lawsuit altogether. Denver District Attorney Mitch Morrissey had already decided not to press criminal charges, finding that Booker's actions "necessitated the use of force."

In December, U.S. District Court Judge R. Brooke Jackson declined to do so. "If what they say is even remotely true and your officers did to this man what they claim they did," he asked the city's lawyers in court, "then how is it even conceivable that a reasonable officer wouldn't understand that that was unconstitutional and wrong?"

But the city and the other defendants are appealing Jackson's ruling -- and, Booker's family says, delaying justice. Though the trial scheduled to start today will now be postponed, or canceled if the defendants win their appeal, Spencer Booker and his wife Gail decided to travel to Denver this week anyway. They spent Monday marching in the Martin Luther King Jr. Day Marade, which began in City Park at the foot of the King statue. Wearing a long black overcoat to protect against the morning chill, Spencer Booker said his brother Marvin was a King scholar who memorized the civil rights leader's speeches and even recited one when the King memorial was erected in the park in 2002.

"The officers (involved in Booker's death) have declared that they have 'qualified immunity,'" Booker told a group of assembled journalists. "'Qualified immunity' means to me that if my brother had a gun and tried to shoot at them, they could take his life. If my brother had a bat and was trying to beat them, perhaps they would have had 'qualified immunity.'... But my brother only went to get his shoes."

Booker said the family wants the deputies to answer for what happened. "For me, justice would be for them to face the citizens of Colorado," he said, "and let them decide whether or not they were justified in what they did to my brother by murdering him."

The case is now in the hands of the United States Tenth Circuit Court of Appeals.

Continue to read the lawsuit and the defendants' motion to dismiss it.

Marvin Booker v. City and County of Denver

Defendants' Motion for Summary Judgment

More from our Colorado Crimes archive: "Robert Dewey case inspires bill to compensate the wrongfully convicted."

Follow me on Twitter @MelanieAsmar or e-mail me at melanie.asmar@westword.com

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