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Longer Suspension for Sexy Text Than for Killing Michael Marshall

Deputies and emergency personnel looking at the lifeless body of Michael Lee Marshall, as seen in surveillance video. Additional images below.
Deputies and emergency personnel looking at the lifeless body of Michael Lee Marshall, as seen in surveillance video. Additional images below.
7News file photo
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Attorneys and family members of Michael Lee Marshall, who died in Denver's downtown jail circa November 2015, call discipline imposed on two deputies and a supervisor over the incident incredibly insufficient. And indeed, previous suspensions of Denver law enforcers in cases that didn't lead to death, including actions involving a sexually explicit text, flashing a badge to get faster restaurant service and more, were as long or longer than those handed out in regard to Marshall's passing.

Originally, seven Denver Sheriff Department deputies faced possible discipline in the Marshall case. In the end, however, only two received punishment. According to the Denver Department of Public Safety's office, Deputy Bret Garegnani has been suspended for sixteen days 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 received a ten-day suspension for failing to observe department policies and procedures. All three have the right to appeal their suspensions to the Career Service Hearing Office within fifteen days.

When asked about the discipline imposed, Darold Killmer, one of the attorneys representing Marshall's family, says, "We're shocked that it was so light. A man died, and three people are going to take a couple of weeks off work. That seems like an astonishingly inadequate response given the gravity of the case."

Marshall, who was fifty at the time of his death and had a history of mental illness, was physically small in stature, standing five-four and weighing 112 pounds. He was taken into custody at the Denver Van Cise-Simonet Detention Center on November 7, 2015, on what Killmer's firm, Killmer, Lane & Newman LLP, characterizes 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. He died nine days later, on November 20.

The late Michael Lee Marshall.
The late Michael Lee Marshall.
Family photo via the Colorado Independent

In January 2016, then-Denver District Attorney Mitch Morrissey declined to file criminal charges against any of the law enforcers involved in the case. This week's disciplinary ruling represents at least some censure, Killmer acknowledges.

"Just demonstrating consciousness is better than anything Mitch Morrissey ever did in response to a police killing," Killmer allows. "If that's the standard, it's better. They did discipline people and thereby acknowledged that the sheriff's deputies and others were responsible for killing Michael Marshall. But suspending somebody seems like a very cavalier response. And then they just want to go about business as usual."

Adds Mari Newman, another attorney working with Marshall's family: "They acknowledge that there was wrongdoing by the sheriff, but this small amount of discipline doesn't do anything to change anything in the future. What's to disincentivize them from behaving this way in the future? This just perpetuates the problem."

The Marshall situation is hardly unique, Killmer points out, citing the 2010 in-custody death of Marvin Booker, which eventually resulted in 2014 court victory and a $6 million settlement. "Marvin Booker was killed in a very similar way; deputies piled on top of him, excessively restraining a small man," he says. "The same thing happened to Michael Marshall. Large people restrained him on all sides until he died."

"If the Booker verdict by a jury of independent citizens didn't send the City of Denver a message, what does it take?" Newman asks. "The only message the city seems to have learned was how to start the cover-up immediately." Referring to discipline letters released following the discipline announcement, Newman says, "As we read them, it's clear that they began covering up immediately after killing Michael Marshall. The way they engaged with the coroner demonstrates that instead of trying to get to the truth, they were trying to cover their tracks and justify their conduct. Everything screams that what they learned was how to cover up wrongdoing, not how to avoid it in the first place."

Independent Monitor Nicholas Mitchell.
Independent Monitor Nicholas Mitchell.
File photo

Also questioning the length of the suspensions is the Office of the Independent Monitor, headed by Nicholas Mitchell. The office has released the following statement:

On November 11, 2015, OIM staff responded to the use of force involving Michael Marshall, and we have actively monitored the investigation and disciplinary process since that date. After a preliminary review, we are concerned by today’s decisions by the Executive Director of Safety for several reasons, including our view that the discipline is not commensurate with the seriousness of the misconduct. We are currently reviewing the decisions, and will provide further analysis in an upcoming report.

Presumably Mitchell's review will include a look at his own office's 2016 annual report, which offers many opportunities to compare the latest suspensions to ones imposed over the past year. We've included a slew of excerpts from the report on the second page of this post. 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 originally 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 more recently, 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.

Is further court action likely in this case? Killmer is keeping his options open. In his words, "The Marshall family is a strong family, and they're determined to secure justice for the community and for their family." He also mentions that "we're expecting a second shoe to drop. This decision is disciplinary, but the city has done nothing to reach out to the family or to the community to give assurances that steps have been taken or will be taken to prevent this kind of thing from happening again. We want them to reach out to us and the community with those assurances."

In the meantime, he goes on, "There needs to be accountability at the upper levels of the sheriff's department. The message being sent here is that if the worst scenario imaginable happens and someone dies, you might get suspended for ten days, but you won't get into big trouble — only a little trouble. And a lot of guys are walking away scot-free. It's really outrageous."

Continue for excerpts from the Office of the Independent Monitor Report about previous officer suspensions that were as long or longer than the ones in the Michael Marshall case.

Excerpts from Denver Office of the Independent Monitor 2016 annual report

Significant Disciplinary Cases Closed in 2016

• An officer had two cases alleging misconduct. In the first case, on May 1, 2016, the officer went to the home of a domestic-violence victim after arresting the suspect. While in the home, the officer removed his duty belt and Taser and placed them on a nearby table. The officer then unfastened his pants to adjust his uniform, partially undressing in front of the victim and her female friend. The officer stated he did this because his appearance was disheveled from the earlier arrest. After he completed dressing himself, the officer asked for the phone number of the victim's female friend. The two exchanged phone numbers and soon after, the officer and friend exchanged numerous text messages, including at least one sexually explicit text message sent while he was on-duty. The officer was suspended for thirty days after engaging in conduct prejudicial.

In the second case, on July 28, 2016, the officer was off-duty and driving when he was involved in a dispute and an alleged physical altercation with the driver of another vehicle. The officer was charged with disorderly conduct and the charges were later dismissed. The officer resigned prior to a disciplinary hearing.

Other Significant Cases, Including Suspensions of Ten or More Days

• On August 24, 2012, a detective was assigned to investigate a home burglary. During her investigation, the detective obtained an item tied to the burglary and received information, including DNA evidence, linking a suspect to the burglary. However, she failed to obtain a warrant for the suspect's arrest, did not place the item into evidence, and failed to timely complete a supplemental report on the criminal investigation. A warrant for the suspect's arrest was not issued until another detective was assigned to the case in July 2015, after the homeowner called the DPD to complain. Between September 2012 and July 2015, the suspect was arrested for five other criminal offenses. Because the detective had previously been disciplined for similar misconduct in another case, she was suspended for sixteen days. A sergeant and lieutenant were also disciplined for failing to adequately supervise the detective, who had known performance issues. Each supervisor was fined two days' time.

• On February 14, 2015, an officer called in sick to work and then attended a sporting event without notifying his commander of his whereabouts, as required, Afterward, the officer went to a bar. On his way home from the bar, the officer was involved in a single-car rollover accident while in possession of his firearm. The officer suffered serious injuries from the accident. He had a BAC of .054, as determined by a portable breath test, more than three hours after the accident. Taking into account the officer's prior discipline, the officer was suspended for sixty days for driving while his ability was impaired by alcohol and given an oral reprimand for failing to inform his commander of his whereabouts.

• In May 2015, a detective took home a city-owned trailer that had been sitting in a fenced-off area of a district police station. He made some repairs to the trailer and sold it on Craigslist, but failed to take appropriate steps to ascertain who owned the trailer prior to taking and selling it. The detective was suspended for eighteen days. He appealed this decision and entered into a settlement agreement with the Office of the EDOS that maintained the eighteen-day suspension, but held thirteen of those days in abeyance for one year and reimbursed him for the thirteen days of suspension he previously served.

• On October 18, 2015, an off-duty officer consumed a substantial amount of alcohol at a bar downtown. After leaving the bar, the officer became annoyed at a street performer and angrily confronted him, calling him offensive names and reportedly threatening him. The officer allegedly grabbed the street performer by the shirt, continuing to harass him until several bystanders intervened. The officer and the bystanders then became involved in a physical altercation. The officer called 911 for assistance and used offensive terminology to refer to the bystanders. Numerous officers responded to the scene. The officer was suspended for ten days and fined six days' time.

• In January 2016, an officer used compensatory time without obtaining the required prior approval. When questioned by a supervisor about whether he had obtained permission to use the compensatory time, the officer misrepresented that he had. The officer had previously been warned that using compensatory time without prior approval was unacceptable. The officer was suspended for ten days.

• On January 5, 2016, an officer responded to a call and spoke with a man who wanted to report a theft. The officer gave the man a case number, but he then did not prepare a theft report. The officer was suspended for ten days.

• On January 9, 2016, an officer mishandled evidence when he jokingly threw a bag of marijuana recently retrieved as evidence from his patrol vehicle into a fellow officer's car. He then un-holstered his service weapon, pointed it in the direction of the fellow officer and said, "Dirty cop, show me your hands." He was suspended for ten days.

• On Feburary 2, 2016, an off-duty officer left a party and was involved in a single-car accident outside of Denver. The officer was arrested and charged with driving under the influence and other traffic offenses. A test of the officer's breath indicated his BAC was .165. The officer pled guilty to driving while ability impaired and a lane-usage violation. The officer was sentenced to eighteen months of probation and 24 hours of community service and ordered to pay fines and costs. The officer was suspended for sixteen days.

• In February 2016, an off-duty detective wearing his badge and sidearm traveled to a hotel outside of Denver several times. He suspected his wife was having an affair at the hotel. The detective told the hotel clerk he was looking for a fugitive staying at the hotel. Because of this misrepresentation, the detective was given access to hotel video, which he searched for evidence of his wife with another man. The detective took photos and videos with his cell phone. The detective was suspended for thirty days. He entered into a settlement agreement with the Department of Safety whereby he was suspended for sixteen days, and thirty days of suspended time would be held in abeyance for a period of twelve months on the condition that he commit no more rule violations of similar or higher severity during that period.

• An officer was in an "on again, off again" relationship with a woman. In November 2015, the chief of police ordered the officer to have no contact with the woman as a result of a complaint she had filed against him. Despite the order, the officer continued to have frequent contact with the woman, including visiting her at home in another state. The officer was suspended for ten days.

• In June 2016, an officer missed five consecutive assigned shifts without notifying a supervisor, despite having been previously ordered to comply with the DPD's sick-leave policy that requires sick officers to notify a supervisor at least one hour before the shift. The officer was suspended for ten days.

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