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Police brutality: Reinstated cop still faces lawsuit in Denver Diner case

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Denver's Civil Service Commission has reinstated officers Ricky Nixon and Kevin Devine, who'd been fired for their actions in an alleged brutality incident at the Denver Diner in 2009.

But a lawsuit over the matter is still alive, and the attorney representing the plaintiffs expresses shock and dismay that Nixon and Devine are back on the job.

"There's no excuse to reinstate these officers," says Siddhartha Rathod, who is representing victims Kelly Boren, Sharelle Thomas, Ana Ortega and Kristal Carrillo in conjunction with fellow lawyer Qusair Mohamedbhai. "They endangered the lives of our clients, and by reinstating them, Denver is endangering the lives of all Coloradans."

Here's how Rathod summarized the incident for us in September.

"On July 12, 2009, Officer Nixon was working in an off-duty capacity at the Denver Diner -- and he was in uniform," he said. Earlier that evening, "Kristal had been a victim of an assault in the restroom. She was attacked by an unknown party and was defending herself when Officer Nixon grabbed her, dragged her outside, arrested her and handcuffed her. In the video, Ana comes outside -- she'd been in the bathroom with Kristal, and she can be seen telling Officer Nixon, 'She didn't do anything wrong.' But he's basically not listening to her, so she walks a little bit away.

"At that time, Sharelle and Kelly arrive. Sharelle had just graduated from Colorado Christian Academy, and they arrived via pedicab. They're walking straight to the door when Officer Devine, who's smoking a big cigar, can be seen coming in from the right side of the video and pushes Sharelle. She stumbles forward, and when she stands back up, she says something to the effect of 'You can't treat me that way,' which any citizen should be able to say to an officer or anyone else in that situation."

At that point, Rathod continued, "Officer Devine pulls out his nightstick and starts waving it in Sharelle's face. He then grabs her by the arm and starts pulling her toward where Kristal is on the ground in handcuffs. He's about to strike Sharelle with his nightstick, but stops inches away. Kelly then steps in between Sharelle and Officer Devine, to stop him from striking her in the face -- and Officer Devine grabs Kelly by the neck and throws her. And he's a big guy, She goes completely off the ground. And then he grabs Sharelle and yanks her onto the ground, and Officer Nixon pins her down.

"Ana sees all this, and she's saying, 'What are you doing?' when Officer Devine, still smoking the cigar, grabs her and throws her down to her knees. Then he takes her arm behind her back and puts his nightstick into her shoulder -- and right as he's about to assault her, Officer Nixon pulls out his mace and sprays it maybe two inches from her face before taking a couple steps to the left and macing Sharelle and Kelly."

Ortega was subsequently handcuffed, as was Thomas -- and Rathod pointed out that assorted officers on the scene offered no help to the maced women even as they treated their own eyes with saline solution. Amid this scene, "Anna, who had been on her knees, stands up and asks for help, and Officer Nixon grabs her by the throat with both of his hands and slams her to the ground. Kristal then tried to help her, and Officer Nixon slams his fist full-force into her face."

None of the women had done anything wrong, Rathod noted, and Carrillo was actually a victim of an attack before the officers took charge. Nonetheless, only Thomas was released, while the other three were charged with assorted infractions because "Officer Nixon and Officer Devine falsified police reports and fabricated charges," he maintained.

The HALO video of the incident was never produced during the criminal cases against Carrillo, Ortega and Boren. They didn't know of its existence until officers Nixon and Devine were fired earlier this year. After their sacking, Westword confirmed that Nixon had also been involved in the beating of Alexander Landau. The incident, which took place before the occurrences at the Denver Diner, led to a settlement with Landau for $795,000.

Lacking this information, Carrillo, Ortega and Boren pleaded to a deferred judgment -- one that would eventually wipe the incident from their records. But Rathod argued that they would never have done so had the City of Denver provided the video and other exculpatory evidence, which would have given them the tools to prove they'd done nothing wrong and the officers had lied.

Nonetheless, the Civil Service Commission ruled that Nixon and Devine should be allowed to don their uniforms again, as well as receive back pay. Why?

Page down to get more details about the case. ​In April 2011, then-Manager of Safety Charles Garcia fired Nixon and Devine for allegedly lying on reports about the fateful summer night. However, the commission determined that the inaccuracies in their reports were not submitted with "an intent to deceive or hide the truth."

The lawsuit over the incident mentions the alleged falsehoods, but it goes well beyond them.

"We allege not only the unlawful seizure of our clients, that excessive force was used against our clients, the discourtesy of these officers and lying on police records," Rathod says. "We also allege that Denver has a custom, policy and practice of tolerating and encouraging these types of acts.

"Prior to the assault of our clients, Denver knew they Officer Nixon was violent and routinely violated the rights of Coloradans. He brutally assaulted Alex Landau, and yet he was still out there on the force -- and then he did it again to our clients. He was on the force for almost two years before Denver fired him and Officer Nixon. But it seems like Denver can't really fire a police officer, because they all get instated. And by keeping officers like these, who are known to use excessive force, and known to falsify police records, they endanger everyone's lives."

Rathod also decries to the slow pace of the investigatory process.

"You would hope that Denver would have acted swiftly after the Landau incident -- that the city would have put him on leave and investigated and fired him. But that's not what was done. We're past the third anniversary of Landau's assault, and if you or I would have engaged in the conduct Officer Nixon did in that case, or as Officer Devine did with our clients, we would be spending multiple years in prison. There wouldn't be a multi-year investigative process. But because he's a Denver Police officer, there was no disciplinary action taken against him, no charges, and he's been put back in uniform to do this again."

Still, Rathod argues that "the problem is bigger than officers Nixon and Devine. Their conduct was atrocious in our case, and they should have been criminally prosecuted for that conduct. But there are countless stories about Denver police brutality, and what have they done about it? They haven't done anything."

At present, the lawsuit is in the discovery phase at the federal court level, and Rathod says that recently departed Independent Monitor Richard Rosenthal is among those he expects to depose. "We hope this suit will make a change in Denver -- that a jury of our clients' peers will say, 'Enough is enough, Denver, and you have to pay,'" he adds. "That's the only way Denver is going to learn -- by making the city pay monetarily. In a federal suit, there's only one thing a jury can reward, and that's monetary damages. But Denver has shown it has little interest in making effective change, and this is the one way we can send a message about that."

Look below to see a CBS4 report featuring excerpts from the HALO video, a frame-by-frame breakdown featuring text from one of the suits, and the Boren complaint.

Ms. Ortega (far left) is wearing a salmon/pink colored skirt with a white blouse; Officer Nixon (third from left) is a uniformed Denver Police Officer and Caucasian male with a shaved head who is wearing black gloves; Ms. Pena (far right) is wearing a red dress and has brown hair; Ms. Carrillo (on ground) is wearing jeans and a black t-shirt with a light red pattern in the front, currently handcuffed and seated with her head pressed forward; and an unknown Caucasian male (second from left) wearing a gray shirt and black pants is an employee from the Denver Diner. Ms. Vidal (top right) is wearing a white top and a black skirt; Ms. Ortega (bottom right); Officer Nixon (second from left); Ms. Pena (middle); Ms. Carrillo (on ground); unknown Denver Diner male (far left); and Ms. Boren and Ms. Thomas (far right) are currently not visible as they are behind the bicycle and tree. Officer Devine (top middle) is a uniformed Denver Police Officer with brown hair, holding a baton in his right hand; Ms. Boren and Ms. Thomas (far right) are currently obstructed as they are behind the bicycle and tree, although Ms. Thomas' arm can be seen coming into the picture from behind the tree; Ms. Ortega (bottom middle); Officer Nixon (top left); Ms. Pena (bottom right); unknown Denver Diner male (far left); Ms. Carrillo (on ground); and Ms. Vidal (top right). Ms. Boren (far right) is a Caucasian female, standing next to the bicycle taxi, with blond hair wearing a red dress and white blouse. Ms. Thomas (far right) is African-American, standing to the right of Ms. Boren. Both women are facing Officer Devine (middle), who is grabbing and pulling on Ms. Thomas' right arm. In Image 4, Officer Devine can be seen smoking a large cigar. Ms. Boren is pushed by Officer Devine and thrown backwards onto the ground. Fransisco Macias and Jay Spencer (top right) and other males are seen as well. Ms. Thomas is on the ground at the feet of Officer Nixon after being thrown down by Officer Devine. Ms. Thomas is unable to get up at this point. Officer Devine took his cigar out of his mouth and threw it to the ground. He then lunged towards Ms. Ortega and with his baton and shoved her backwards. Officer Devine then grabbed Ms. Ortega's left arm, partially spun her, and pulled her towards him. Ms. Ortega fell to her knees, and Officer Devine placed Ms. Ortega's left arm behind her back, and in a wrist lock. While holding Ms. Ortega's arm behind her back, Officer Devine forcibly placed his baton in between Ms. Ortega's neck and shoulder blade. Ms. Ortega was subdued, and at no time was she resisting arrest or combating Officer Devine. Ms. Ortega suffered bruising to her chest due to Officer Devine's violence against her. Officer Nixon approached Ms. Ortega while she was on her knees, restrained by Officer Devine. At point blank range, Officer Nixon pepper sprayed Ms. Ortega in the face and eyes. Ms. Ortega was immediately overcome with extreme and severe pain. Ms. Ortega screamed out, asking why she had been pepper sprayed. Officer Nixon is pepper spraying Ms. Thomas (Image 16), and then approaching closer and pepper spraying Ms. Boren (Image 17). Ms. Pena (middle) wearing the red dress is pleading with Officer Devine to not hurt Ms. Ortega.

Kelly Boren vs. The City and County of Denver

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