The chair of Denver's Citizen Oversight Board, empowered by Mayor Michael Hancock to make recommendations about law enforcement use-of-force incidents and disciplinary decisions, is critical of the mild suspensions given to deputies over the November 2015 jail death of Michael Marshall. Likewise, she's frustrated that Executive Director of Safety Stephanie O’Malley, whose office dispensed what critics see as wrist slaps in the case, declined to discuss the situation at a recent board meeting.
"We were disappointed," concedes board chair Dr. Mary Davis. "We had expected to have a conversation and be able to ask her questions, and to be able to do that in person. But while she attended our meeting on May 5, she just said she would not be speaking about the case. And that was the end of that."
Perhaps not. Attorneys representing Marshall's family have made it clear that additional court action is possible in the matter.
As we've reported, Marshall, who was fifty at the time of his death and had a history of mental illness, was physically small in stature, standing 5' 4" and weighing 112 pounds. He was taken into custody at the Denver Van Cise-Simonet Detention Center on November 7, 2015, on what the aforementioned lawyers characterize as a minor, nonviolent infraction. Four days later, he began to display erratic behavior and was taken down in a jail corridor by several deputies, who pressed him against the floor. He had trouble breathing during the episode but was revived, only to be restrained again in the same manner that had caused his previous difficulties. He eventually aspirated on his own vomit, leading to a loss of consciousness, and eventually died on November 20.
Originally, seven Denver Sheriff Department deputies faced possible discipline in the Marshall case. In the end, however, only two wound up with any punishment. According to the Denver Department of Public Safety's office, Deputy Bret Garegnani received a sixteen-day suspension for failing to follow use-of-force policies and procedures by using inappropriate force, and Deputy Carlos Hernandez was suspended for ten days in relation to the same offense. In addition, Captain James Johnson was given a ten-day suspension for failing to observe department policies and procedures.
The discipline decisions immediately stirred controversy, in part because several previous suspensions for infractions that didn't involve death were as long or longer than the ones handed to Garegnani, Hernandez and Johnson. For example, one officer was given a thirty-day suspension for unfastening his pants to adjust his uniform in front of a domestic-violence victim. Also present was a female friend of hers with whom he subsequently exchanged phone numbers and began texting, with at least one of the messages described as sexually explicit.
In addition, a detective was initially given an eighteen-day suspension for selling a city-owned trailer on Craigslist; an officer was suspended for ten days for tossing a bag of marijuana at a fellow cop, then pulling his gun and jokingly trying to arrest him; and another officer earned a ten-day suspension for failing to show up for five consecutive shifts without informing a supervisor. And earlier this year, Sergeant David Shelley was reportedly suspended for thirty days for using his badge to bully staffers at a Mexican restaurant in Castle Rock to serve him more quickly.
On April 28, the week after the Marshall-related suspensions were announced, the Citizen Oversight Board sent O'Malley a letter. The text is below, but one excerpt states, "We believe, based on prior documented discipline, that the relatively short suspensions imposed on three deputies...by your office do not match the seriousness of the wrongdoing in this case."
The letter concludes with a note about looking forward to speaking with O'Malley about the suspensions at the aforementioned May 5 meeting. After she declined to do so, the board released the letter publicly.
Why? "We just felt that what had happened was so out of sync with the degree of seriousness of what happened with Mr. Marshall that we wanted to ask questions," Davis says. "But we didn't get responses."
Speaking out now is important, Davis believes, because "we're a volunteer board appointed by the mayor and confirmed by the city council — and one of our responsibilities is to stay in touch with issues that the public is concerned about. We need to let the public know that we're acting on their behalf. We're not just sitting back and not making inquiries as to what's going on related to discipline."
Does Davis see the minor punishment in Marshall's death as part of a larger pattern? "I don't know if it's an anomaly," she replies, "but we've had a degree of concern about discipline that's been meted out, and we want to make sure we're responding in a way that's consistent with our responsibilities. And the board feels the letter speaks for our level of concern."
Here's the letter.
Citizen Oversight Board letter to Stephanie O'Malley
Executive Director of Safety Stephanie Y. O’Malley
Department of Safety
1331 Cherokee Street
Denver, CO 80202
Dear Director O’Malley,
As you know, the Citizen Oversight Board (COB) is made up of community members appointed by the Mayor of Denver to make recommendations regarding use of force and disciplinary decisions, among other things, to Denver’s Department of Safety. We write because we are extremely troubled by the disciplinary decisions concerning the death of Michael Marshall, released by your office last week, and we write to express our disappointment.
Throughout this case, we have been kept apprised of the investigation and disciplinary proceedings by Independent Monitor Nicholas Mitchell. We are aware of the many efforts by the Office of the Independent Monitor (OIM) to ensure that the investigation was conducted thoroughly, fairly, and without bias. We are also aware of the OIM’s many recommendations, which we support, on the appropriate level of discipline to be imposed against some involved deputies under the Denver Sheriff Department (DSD) disciplinary matrix.
The DSD’s disciplinary matrix acknowledges that Deputy Sheriffs hold a position of trust bestowed on them by the community, and they are given the authority to use force, including deadly force, when appropriate. With that power comes the responsibility to use it wisely. The community expects that when deputies engage in misconduct, the Department of Safety will impose discipline that matches the seriousness of that misconduct. The facts of Mr. Marshall’s death are very alarming. We believe, based on prior documented discipline, that the relatively short suspensions imposed on three deputies...by your office do not match the seriousness of the wrongdoing in this case.
The DSD has been undergoing a top-to-bottom reform effort for several years, with a number of achievements that have been made public. We support those efforts, and the ongoing betterment of the DSD through change of the policies and training of the department. Some of us on the COB have even participated in the task forces and subcommittees associated with these reform efforts. Yet, to make a lasting impact on the culture of the DSD, the Department of Safety must also be willing to hold deputies accountable for serious wrongdoing. As the Citizen Oversight Board, we believe that your office did not live up to that obligation in this case, and we write to convey our disapproval of the disciplinary decisions issued last week regarding the death of Michael Marshall....
Although you had to cancel your previously scheduled meeting with the COB on April 21, 2017, we look forward to discussing this matter with you on May 5, 2017 at the next COB meeting.
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Thank you for your time and attention.
Dr. Mary Davis, Chair
Francisco “Cisco” Gallardo, Vice Chair
Mark Brown, Secretary
Pastor Paul Burleson, Member
Katina Banks, Member
CC: Nicholas E. Mitchell, Independent Monitor
Patrick Firman, Sheriff