Independent Monitor Nick Mitchell Polices the Police

Independent Monitor Nick Mitchell Polices the Police
Anthony Camera
Denver’s growing pains might be the focus of next year’s mayoral election, but seven years ago, most candidates for the job, including Michael Hancock, campaigned with promises to reform the city’s law-enforcement agencies. Public ire had reached a boiling point following years of shocking examples of excessive force used by sheriff’s deputies and police officers. A particularly gruesome example was the 2010 death of a homeless street preacher named Marvin Booker in the Downtown Detention Center: Deputies tased him, put him in a sleeper hold and beat him with nunchucks.

By that point, the city had spent millions of dollars on payouts to other victims of law-enforcement brutality, and it had been at least ten years since the Denver District Attorney’s Office had pressed criminal charges against a police officer who’d shot and killed a citizen.

Hancock won the 2011 election, and soon after he took office, he replaced Gerald Whitman, chief of the Denver Police Department, with Robert White. The reform-minded, tenured cop was one of two outsiders appointed to the DPD’s top post in the department’s then-152-year history. White quickly ruffled feathers with changes he made there, including requiring that high-ranking officers reapply for their jobs. But Hancock did not move as quickly with the Denver Sheriff Department.

Finally, at a July 2014 press conference, the mayor announced reforms at the sheriff department that had been months in the making. City law-enforcement leaders stood by his side, including Stephanie O’Malley, then head of the Department of Public Safety, and Denver County Sheriff Gary Wilson, who’d been with the department since 1992 and had been appointed its leader in 2010. Less familiar was a bespectacled East Coast transplant wearing a suit and tie, holding notes.

“Over the past several months, a number of incidents have shaken the public’s trust in the Denver Sheriff Department, and that is simply unacceptable,” Hancock told the reporters and city employees assembled in the room, then announced that he had accepted Wilson’s resignation and would launch a review of how the department handled complaints against deputies.

“We’ve learned a lot about what they do and the quality of the work and the product that’s coming out of there.”

tweet this
While Hancock received much of the credit that day from O’Malley and other officials who spoke to the media, the mayor acknowledged that the need for reform was not entirely his idea.

In a report issued seven months earlier, in December 2013, the Office of the Independent Monitor, the city’s law-enforcement watchdog, had taken the sheriff department to task. After combing through two and a half years of data, the OIM had found that 45 percent of the complaints of serious misconduct by deputies, including inappropriate force, non-consensual touching and biased behavior, never made their way to the sheriff’s Internal Affairs Bureau to be investigated. The OIM also discovered that almost 16 percent of inmate grievances focused on four deputies out of a total of 700, identifying some serious — and seriously overlooked — bad apples in the department.

Independent Monitor Nick Mitchell had been at his post for just over a year when he issued that report, but its blistering findings elevated him from a paper tiger to a watchdog with teeth strong enough to ultimately take down one of Denver’s highest-ranking law-enforcement officers.

Four years later, the OIM under Mitchell continues to police the city’s law-enforcement agencies.

After the DPD released a draft of its revised use-of-force policy in January 2017, it was a letter from the OIM that publicly coerced then-Chief White into addressing what it called “noteworthy deficiencies” in the draft, such as vague and poorly defined terms, “including its overall standard for when force may be used”; less restrictive standards than what other large police agencies in the U.S. had adopted; and — this one got its own paragraph — the lack of any discussion around when and how to employ use-of-force tactics, such as tasering and chokeholds.

Since its inception in 2004, the OIM has weathered attacks from more than a few critics. They argue that it’s redundant, since the Department of Public Safety officially oversees Denver’s law-enforcement agencies, including the DPD, Denver Sheriff Department and Denver Fire Department; and that its powers are too broad and its leaders too cavalier in their assessments, especially when it was headed by Mitchell’s predecessor, Richard Rosenthal, a brash former Los Angeles County deputy district attorney and the OIM’s first leader.

Such attacks are nothing new. In the early twentieth century, citizen oversight of law enforcement was considered a progressive, even fringe, idea. But the U.S. now has about 150 citizen oversight agencies or boards in cities big and small, and their supporters argue that such organizations are especially crucial in a post-Ferguson world, in which policing in the United States has never been more scrutinized.

Coupled with the Citizen Oversight Board, whose members are mayoral appointees and which oversees the independent monitor and makes law-enforcement policy recommendations, Denver’s OIM is considered one of the most productive and forward-thinking in the country. It’s cited as a model example of a civilian oversight board in a case study, out this year, from the National Association for Civilian Oversight of Law Enforcement.

“We’ve learned a lot about what they do and the quality of the work and the product that’s coming out of there,” says Cameron McEllhiney, NACOLE’s director of training and education. “To watch an oversight agency do what they’re doing with the integrity and level of transparency that they are doing their work with, I feel like that’s definitely a model that can be held up to others.”

With Denver’s new police chief, Paul Pazen, joining a lineup that includes Troy Riggs, the relatively new director of the Department of Public Safety, and Denver Sheriff Patrick Firman, whose department is nearly finished implementing much-needed reforms, the city hopes that Denver is entering a new era in law enforcement; that long-awaited use-of-force policy could even be made public any day. But if things go off the rails, it will be Mitchell, an understated but determined agent of change, who makes sure they get back on track.

click to enlarge The New York City Mitchell knew growing up was gritty and dangerous. - ANTHONY CAMERA
The New York City Mitchell knew growing up was gritty and dangerous.
Anthony Camera
On the morning of September 11, 2001, Nick Mitchell was riding the subway to his job as an investigator at New York City’s Civilian Complaint Review Board. His office was about three blocks south of the World Trade Center.

A Brooklynite since age eleven, Mitchell had adopted the locals’ line of defense when riding the subway, of keeping your head down to avoid the crazies. When a woman got on yelling something about an attack at the World Trade Center, Mitchell buried his face deeper into his newspaper. But when he got off the train, he noticed that everyone on the street was gazing up at a burning hole near the top of the North Tower.

Mitchell met up with some friends from work, and together they ran across the Brooklyn Bridge away from Manhattan, witnessing first-responders heading in the opposite direction. The fire and dust would swallow some whole.

Nicholas Ethan Mitchell had been born in New Jersey, but moved to Brooklyn in 1986 with his older brother and mother after his parents divorced. His paternal grandfather had been an officer with the New York Police Department. Mitchell knew him mostly through stories — his grandfather died before he was born — like the one where he got in trouble at work once for not arresting enough people. According to family lore, Mitchell’s grandfather would rather talk out an altercation, especially with a young troublemaker, than immediately take out the cuffs.

“He really understood community policing,” Mitchell says.

The New York City where Mitchell grew up was dangerous and gritty, choking on the crack epidemic. He was mugged several times but mostly stayed out of trouble. “I was an opinionated, ornery kid who had my own strong views about things and didn’t always listen as well as I should have,” he recalls. “That got me into some scrapes.”

Mitchell found his way along the straight-and-narrow thanks to his parents’ influence. His mother had been born in Israel to a stepfather in the British army and a German Jew mother who had fled just before the Holocaust; she was a contracts lawyer for the public-university system of New York City. His father was an anthropology professor. “Being an anthropologist means engaging with other cultures,” Mitchell says. “[My dad] always brought a real focus on justice to his work professionally and to our family, as did my mom.”

Mitchell studied political science at Evergreen State College in Washington State, then returned home to take a job at the Civilian Complaint Review Board in 1999.

Complaints against NYPD officers have decreased by nearly 50 percent since 2006, but when Mitchell arrived at the office, at the time under Mayor Rudy Giuliani, the force was making national headlines with severe missteps.

In 1997, a police officer had sodomized Abner Louima, a Haitian immigrant, with a broken-off broom handle at a precinct station. In 1999, the year Mitchell joined the CCRB, four officers shot Guinean immigrant Amadou Diallo 41 times after mistaking him for a rape suspect. And in 2002, police started enforcing a highly controversial Giuliani administration policy called stop-and-frisk, which allowed officers to stop people at random and search them for contraband.

Mitchell investigated complaints against NYPD officers and presented his office’s findings in court. But his desire to be on the other side of the witness stand led him to enroll at the Fordham University School of Law in 2004. After his first year of law school, he got a grant to work in the domestic court system in Sierra Leone and on a genocide case at the U.N.’s Special Court for Sierra Leone.

The west African country was in shambles, having emerged from an eleven-year civil war in 2002. Not only was the court system broken — judges and attorneys had long ago fled the country — but the jail system was holding on to suspects because of the backlog in the courts. Mitchell traveled to rural areas and interviewed war-crime victims. “From that I learned the importance of a functioning criminal-justice system,” he says.

After law school, Mitchell took a job at a large international law firm in New York City. Founded in London in 1930, Allen & Overy made a name for itself after one of its founders advised King Edward VIII during his scandalous abdication. Mitchell never felt quite at home at the firm’s prim-and-proper headquarters in New York, and he wasn’t too interested in his work defending CEOs from Department of Justice investigations. During one company luncheon, an attorney got up to speak about a new case in which descendants of victims of the Armenian genocide were suing a large bank to recoup family heirlooms that had been seized. Mitchell got excited at the prospect of helping the families and approached the attorney to offer his services.

“He said, ‘That’s great, Nick, but we’re representing the [bank],’” Mitchell recalls.

Still, the job let Mitchell make a sizable dent in his student loans and gave him the opportunity to do some pro bono work. In 2008, he joined attorneys around the U.S. who were suing then-President George W. Bush over the due-process rights of detainees at the Guantanamo Bay detention camp in Cuba; the U.S. Supreme Court had just banned the government from detaining them indefinitely. Mitchell visited Gitmo to interview detainees about whether they had legally moved through the judicial system. “Although I was representing individual detainees, my view was that I was representing our system of laws and the very idea that lawyers and the courts must act as a check-and-balance on the exercise of the government’s power to deprive people of their liberty,” he says.

Mitchell doesn’t have a New York accent, and his subdued nature and love of the outdoors defy New Yorker stereotypes, which might explain why, right after a weekend trip here in 2011, he and his wife, a prosecutor, decided to move to Denver. “We’re both really methodical people, so that decision was really out of character,” he explains.

Mitchell spent a year litigating at Silver & DeBoskey before Hancock appointed him head of the OIM in August 2012, after his first pick, an attorney at the Los Angeles County’s Office of Independent Review, declined the job.

Councilman Paul Lopez was on the search committee for the new independent monitor and recalls that most of the interested candidates had law-enforcement backgrounds. But Mitchell, a lawyer who had worked entirely in private practice, rose to the top. “He’s very thoughtful,” Lopez says. “He had a natural curiosity to him and is very humble. He’s not trying to be a cowboy with access. He truly believes in having policy that’s going to create a situation where you’re going to achieve public safety.

“He’s a respectable person,” Lopez continues, “and it really bothers me to see [that] the other heads of agencies don’t afford him that kind of respect.”

click to enlarge The OIM’s fourteen staffers review investigations into law-enforcement officers and make policy recommendations. - ANTHONY CAMERA
The OIM’s fourteen staffers review investigations into law-enforcement officers and make policy recommendations.
Anthony Camera
The Office of the Independent Monitor was born from insurmountable tragedy.

In 2003, Denver police officer James Turney had killed Paul Childs, a fifteen-year-old African-American boy who was standing in the hallway of his Five Points home holding a knife. The officers who’d responded to the call knew that Childs was developmentally disabled, but Turney fired anyway.

“Paul Childs’s shooting instigated the OIM and called into question [DPD’s] use-of-force policy,” says Al LaCabe, at the time serving as public safety manager under then-Mayor John Hickenlooper. “Is there a better way to do this? Is there a better way to hold people accountable? Questions came up in general about the history of police discipline in the city.”

Denver’s citizen review board at that time, the Public Safety Review Commission, was largely ineffectual because it got to review excessive-force cases only once they had been closed. So, after Childs was killed, LaCabe and others in the Hickenlooper administration started looking into strengthening civilian oversight of Denver’s law-enforcement agencies.

“We looked at models all around the country and came up with this model that was the best working model for the city, which is that you have an independent monitor who in essence can witness an investigation, can listen to an investigation, can listen to questions being asked, suggest questions to be asked,” LaCabe says. “And although that person had no direct authority, there was at least input, and that person could report on an investigation in an annual report.”

Rosenthal was serving as the first police monitor in Portland, Oregon, when he was hired by Denver in 2005. He often clashed with city officials over what he considered light punishment of law enforcement; some said he was hard to work with. By the time he left the office in 2011 for a job in British Columbia, the OIM was so resources-deprived that it begged Denver City Council for more money.

When Mitchell took office, the budget was only $626,700. Today it’s $1.6 million, with more than double the staff and an increase in grant funding that’s allowed the OIM to expand its reach, becoming more proactive in reducing use-of-force incidents rather than just reacting to them.

“Although I was representing individual detainees, my view was that I was representing our system of laws.”

tweet this
The Office of the Independent Monitor is located on the first floor of the former Denver Post headquarters at Colfax and Broadway, a building that once bustled with its own watchdogs but is now occupied mostly by City of Denver employees.

OIM visitors are greeted by a secretary and a lone houseplant. The most exciting things on the walls of this maze of an office are placards with the names of influential Supreme Court justices that identify different meeting areas.

The office takes calls from inmates who might have complaints about their treatment. Some call to air grievances totally out of the OIM’s control, such as whether the jail had properly handled photos of their family members. (Inmates can also detail their problems with deputies on forms that the OIM leaves in detention centers.) Six monitors, mostly attorneys, review complaints against and commendations of law-enforcement officers. Four deputy monitors also review complaints, notify the office’s policy director of any potential trends, and actively participate in Internal Affairs investigations of police officers and sheriff’s deputies.

OIM deputies can sit in on Internal Affairs interviews with excessive-force victims and witnesses, and suggest questions to ensure that the analysis of a complaint is thorough and fair. The OIM makes disciplinary recommendations in all cases that are fully investigated by Internal Affairs to the chief of police or sheriff as well as the director of public safety and, if necessary, comments on the final disciplinary decisions that are made by those agencies in the OIM’s public reports. Regardless of the case, however, the OIM only makes disciplinary suggestions and cannot compel the agencies to adopt them.

Policy work is another facet of the OIM. The policy director and his three analysts research law-enforcement trends and best practices, and generate internal and public reports (roughly two a year under Mitchell’s watch) regarding their findings. The office also analyzes data from Denver’s law-enforcement agencies to find patterns and trends. “If the office is only focused on individual cases and individual allegations, we’re missing the forest for looking only at the trees,” Mitchell says. “If a policy framework is flawed and an officer is simply executing a flawed policy, there’s little value in investigating what the officer did and didn’t do in an incident. The bigger issue to be tackled is fixing the policy and training and procedures such that the incident never happens again.”

The policy team’s work was key to a report analyzing the DPD’s body-camera pilot program. In 2014, the program outfitted 102 officers in District 6, which covers most of downtown, with body cameras for six months. (A 2013 National Institute of Justice survey had found that 75 percent of police departments surveyed were not using body cameras. Since then, they’ve become a critical, if still controversial, piece of equipment for officers and suspects in the wake of high-profile civilian shootings by law-enforcement agents.)

click to enlarge Troy Riggs, the relatively new executive director of public safety, hopes law-enforcement agencies will work together more often. - ANTHONY CAMERA
Troy Riggs, the relatively new executive director of public safety, hopes law-enforcement agencies will work together more often.
Anthony Camera
In 2015, the OIM reported that the body cameras in the pilot program did not record a majority of use-of-force incidents in the district (the pilot had not required certain officers to wear them). And after it found 55 potential violations of the department’s body-camera policy in the first half of 2017, the OIM issued a report urging the DPD to train more officers on how to use the cameras, including when they should be activated.

The OIM also has hired community-oriented staffers who attend neighborhood meetings around the city and talk about the OIM’s services with the public.

“We’ve worked with them personally on many different occasions,” says Alex Landau, co-founder of the Denver Justice Project and himself a victim of police brutality. “They attend events in the community. Folks in confinement and detention in the county facilities have access to [Mitchell’s] office directly from the facility if they want to vocalize a complaint of misconduct. That’s new.”

In 2014, Mitchell took OIM data showing that negative interactions between youth and police officers were on the rise and launched Bridging the Gap: Kids and Cops, with the goal of de-escalating situations involving police and youth that could result in use-of-force issues. The outreach program has trained more than 200 officers on youth brain development and de-escalation techniques, and instructed kids on know-your-rights issues.

It was through the Bridging the Gap program that Paul Pazen, then the commander of District 1, became familiar with the work of the OIM. “We have collaborated to proactively reduce many of the negative interactions between young people and adults,” Pazen says. “If we can do a better job engaging with young people and police officers on the front end and establishing know-your-rights and know-your-responsibilities, as well as teaching officers adolescent brain development, implicit bias … we can reduce the number of low-level contacts that turn into citizen or use-of-force incidents.”

Both Pazen and Riggs, who became the city’s new manager of public safety after O’Malley stepped aside in February, characterize their relationship with Mitchell as a positive one. That’s a major change from just a few months ago.

click to enlarge DPD Chief Paul Pazen launched an initiative with the Office of the Independent Monitor that aims to decrease negative interactions between youth and police. - KENZIE BRUCE
DPD Chief Paul Pazen launched an initiative with the Office of the Independent Monitor that aims to decrease negative interactions between youth and police.
Kenzie Bruce
This past March, the OIM issued a 73-page report called “The Death of Michael Marshall, an Independent Review,” which detailed how the sheriff department’s Internal Affairs Bureau mishandled its investigation into the 2015 death of Marshall, a mentally ill inmate imprisoned for causing a scene at a motel, and the disciplinary decisions that followed for the deputies involved in his violent death. The Marshall report garnered a particularly defensive and highly public response from the Department of Public Safety’s then-deputy director, Jess Vigil, in which he denied that the IAB had mishandled the investigation.

Asked about the testy letter that Vigil had sent the OIM, Riggs admits there is room for improvement. “We need to stop sending letters to each other, and we need to sit in a room and have a conversation,” he says. “A lot of things get lost, and we end up putting things in letter that could be misconstrued or sometimes people feel bolder in letters. I want to make sure we have a relationship that isn’t writing letters back and forth. That was history, and I want to change that.”

Riggs says he has urged the sheriff department to release a report in August detailing its reform efforts. It will include a response to the Marshall report.

“I don’t believe Mr. Marshall should have been in jail in the first place,” Riggs says. “The OIM’s report on that death helped solidify that belief even more.”

click to enlarge An OIM investigation found the sheriff department’s Internal Affairs Bureau mishandled the investigation into Michael Marshall’s death in a Denver jail in 2015. - FAMILY PHOTO VIA THE COLORADO INDEPENDENT
An OIM investigation found the sheriff department’s Internal Affairs Bureau mishandled the investigation into Michael Marshall’s death in a Denver jail in 2015.
Family photo via the Colorado Independent
There is some disagreement between Mitchell and Pazen and Riggs, though, and it concerns whether the OIM can investigate certain high-level law-enforcement officers.

The mayor appoints the manager of safety, the police and fire chiefs, the sheriff and the independent monitor. “As such, the Mayor may remove the Police Chief and Sheriff from their appointed roles at any time, with or without an investigation or OIM involvement,” according to a statement sent to Westword by the Denver City Attorney’s Office.

This past April, the same month White announced his retirement, Hancock cleared the chief of wrongdoing in two incidents: a hit-and-run involving White in which he chased the driver who hit him, and an instance in which he might have broken the DPD’s policies regarding open-records requests.

The OIM was looking into both cases until Hancock abruptly pulled investigators off them in May, a FOX 31 investigation found. A series of confusing statements from city officials justifying the mayor’s decision followed, but ultimately the Denver City Attorney’s Office issued an interpretation of the City Charter that argued that because White — and Sheriff Patrick Firman, for that matter — were hired from outside their departments and not through the Civil Service Commission, which screens and certifies certain law-enforcement applicants in Denver, they are not considered “uniformed personnel.”

“Given that the current Chief and Sheriff do not fall under the definition of uniformed personnel, they are outside of the oversight authority of the monitor,” the opinion reads.

Now the Denver City Attorney’s Office

“If the office is only focused on individual cases and individual allegations, we’re missing the forest for looking only at the trees.”

tweet this
 is drafting a policy that will clarify the OIM’s investigatory duties. It “will be based on and consistent with the City Charter,” that office says.

Councilman Lopez, who introduced the 2016 amendment that enshrined the OIM in the City Charter, doesn’t agree with the city attorney’s interpretation of the rules regarding the department heads. “I completely respect the folks in the City Attorney’s Office, but as a person who grew up in Denver and has seen all these different events unfold … it’s hard for me to think of the chief or the sheriff or the fire chief as a non-uniformed officer,” he says. “We can go around it legally and find loopholes, but that’s not a good-faith effort [by] the city.”

Councilman Paul Kashmann, head of the council’s Safety, Housing, Education and Homelessness committee, thinks that the mayor’s decision to pull the OIM from the investigations may hurt morale. “The monitor should be able to investigate all levels of the department,” he says. “If that’s not the case, you’ve got rank-and-file wondering why they’re the ones who get all the attention while the higher-ups are left unattended to. I don’t think that’s healthy for anybody.

“The executive [branch] wins perhaps more than anybody when the community is comfortable and the level of oversight is appropriate.”

Lopez says he’s considering ways to make the OIM more independent and less in the control of any one office or department. “What branch does he belong in?” he asks of Mitchell. “Is there an independent branch? … It’s time to figure out what kind of tool you need, i.e., subpoena power, an independent budget….”

As it stands, the OIM’s budget is controlled by Denver City Council, and ultimately requires the mayor’s signature. According to NACOLE’s McEllhiney, though, some cities are now tying the budgets of their civilian oversight boards to those of law-enforcement agencies. If the latter grow and get more funding, so do the civilian oversight boards. That ensures that a city council or mayor can’t decrease an oversight board’s funding on a whim. “I think it is the way to guarantee more adequate funding for the job they’ve been given,” she says.

“In support of Denver’s civilian oversight,”  Hancock said in a statement to Westword, “we have significantly increased the Office’s resources (165 percent budget increase since 2011) and we will continue to work in collaboration with the OIM as it plays an important role in ensuring accountability in our safety departments.”

Another step toward more independence would be for the OIM to have its own attorney. It currently shares lawyers in the Denver City Attorney’s Office with Denver City Council, the mayor’s office, the DPD and the Denver Sheriff Department. Despite the guarantee of a conflict-free counsel, should an issue between any of the agencies go to court, it would be a challenge for the Denver City Attorney’s Office to maintain even the perception of impartiality, argue some city officials. Their concern was highlighted a few months ago, when a city attorney advised Denver City Council regarding possible actions it could take in the wake of accusations that Hancock had sexually harassed Denver police officer Leslie Branch-Wise when she was on his security detail in 2012.

Denver City Council has been looking into ways to secure its own attorneys, Kashmann says, adding that the OIM should have the same resources. “Right now, much of the time there’s no problem,” he explains. “But should we want to have an investigation of anybody, we don’t have that right now to go outside. It has to go through the administration, and obviously that’s a problem. [The OIM] should have that same ability to have outside counsel when needed.”

Mitchell is cautious about airing any concerns he has about the OIM’s role. He insists that his focus is on the work.

That includes the DPD’s long-awaited revised use-of-force policy. The document, which White hoped would close out his tenure, was supposed to be made public in mid-June. But the release has been stalled by a series of contentious meetings with the DPD and the community — bolstered by the letter that the OIM sent to White last year — and a new police chief who says he’s still familiarizing himself with the
policy’s dictates.

Those familiar with the revision say it more clearly defines the kind of force that police may use and when they may use it, and emphasizes de-escalation.

When they’re out in the community, OIM staffers say they sometimes hear that the office is too soft on law enforcement. But some men and women in uniform argue the opposite. Mitchell hopes to bridge that perceptual gap.

“One of the challenges of police departments in America right now is procedural legitimacy,” he says. “Because of the prominent cases we’ve seen around the country involving problematic conduct by police officers and viral videos that have spread all over, I think a lot of police departments are struggling with being perceived as legitimate in the eyes of the communities that they police. That’s something we help DPD and DSD
work towards.”
KEEP WESTWORD FREE... Since we started Westword, it has been defined as the free, independent voice of Denver, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Ana Campbell has been Westword's managing editor since 2016. She has worked at magazines and newspapers around the country, picking up a few awards along the way for her writing and editing. She grew up in south Texas.
Contact: Ana Campbell