Police brutality: Witness upset Denver Diner cops to be back on street

New update below: Denver's Civil Service Commission has determined that officers Ricky Nixon and Kevin Devine, fired over an alleged brutality incident at the Denver Diner in 2009, can return to the street while the city appeals their reinstatement. This decision aggravates Colorado Progressive Coalition's Miriam Pena, who was present at the restaurant that evening and is good friends with one of the women suing the officers over their treatment.

The Commission didn't rule on the facts of the Denver Diner case. Rather, members had been asked to consider a request on the part of the city to stay the reinstatement of Nixon and Devine during the appeals process. But because the city was four days late in submitting the proper paperwork, the officials declined to do so.

To Pena, the use of this technicality makes the outcome "a lot more frustrating. From what we've gathered, there is precedent for the decision-makers to look at a case even if the appeals had been filed late. At least that's what we've heard from folks at the city attorney's office. But they chose not to."

In her view, the tardy filing provided the CSC with "a convenient excuse. We haven't seen much come out of the Civil Service Commission that gives me any hope that they would have ruled otherwise. If it wasn't this late thing, I still don't think they'd have made the right decision."

The alleged prevalence of police brutality in Denver is "very close to my heart," Pena says, "not only because I witnessed it in person, but also because I've been listening to some of the stories that our members have shared. People will call our hot line about incidents that happened four years ago, because these are traumatic events that don't go away easily. Denise DeHerrera, Michael DeHerrera's mother, still wakes up with nightmares. So when I see decisions like this one, I become so disillusioned with the system and wonder how I can continue to inspire and encourage our members to stay involved when it doesn't seem like change is on our side."

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How does she fight this feeling? By reminding herself that "change happens very slowly," she notes. "So we have to celebrate the small victories along the way, and feel pride that we're putting a spotlight on these kinds of injustices. I think it's fair to say the general public really didn't have an idea who the Civil Service Commission was before we started putting on public pressure. It's just a matter of redirecting people's energies to create positive change."

Update, 10:50 a.m. March 20: The CPC is responding to the Nixon-Devine non-ruling by launching a nationwide petition calling for a federal investigation of excessive force complaints against Denver law enforcers. Accompanying the petition is a video featuring Pena, CPC Racial Justice director Mu Son Chi, police-beating victim Alex Landau and the parents of Michael DeHerrera, also battered in an excessive force incident.

Here's the link to the "Bring Justice to Denver" petition, followed by the just-released video and our earlier coverage.

Original post 10:02 a.m. March 19: Today, Denver's Civil Service Commission is expected to issue a decision related to police officers Ricky Nixon and Kevin Devine, who were fired for their actions in an alleged brutality incident at the Denver Diner in 2009 only to subsequently be reinstated. The question: Should they remain off the streets while the City of Denver appeals the reinstatement decision? The Colorado Progressive Coalition's Miriam Pena says "yes," for very personal reasons. After all, she was at the restaurant that fateful night.

Nixon was at the center of a high-profile alleged excessive force case prior to the one that took place at the Denver Diner -- the 2009 beating of Alex Landau. He was also involved in the 2006 shooting death of a suspect.

As for the Diner incident, it's the subject of a still-pending lawsuit jointly filed by four women, Kelly Boren, Sharelle Thomas, Ana Ortega and Kristal Carrillo. But Pena was present at the restaurant, too, in the company of Ortega and Carrillo.

"It was a summer night in July -- a girls' night out kind of thing," Pena recalls. "Ana, who's one of my best friends, was with Kristal, her partner at the time. Kristal presents herself in a more masculine-looking way, and as she was coming out of the bathroom, she was kind of harassed by other girls waiting in the line. It was something to the extent of, 'Why are you coming out of the girls' restroom?'"

Pena was also waiting in the line, and she tried to break up the fight -- "but my attempts failed, and the next thing I knew, a police officer was there and I got pushed into a column in the waiting area of the restaurant."

What happened next is something of a blur for Pena. "I kind of blacked out when my head hit the column," she notes. "But before that happened, I remember thinking, for a split second, 'I'm glad to see cops here. They're here to help us.' I can't believe I ever thought that...."

Why? Because, Pena says she watched as Carrillo was tackled by officers, after which Ortega got roughed up simply for trying to defend her partner. "She wasn't doing anything wrong," Pena emphasizes.

Neither was Pena, but she was dragged into the drama, too. "I was trying to talk to an officer, saying, 'Let me explain. This is a misunderstanding.' But I didn't get listened to. I got handcuffed and threatened and taken to the wall. The officer told me to sit down, and I didn't want to sit down, because I was wearing a dress. And meanwhile, all these things unfolded in front of me. I saw one of the officers grab this girl by the neck and push her, even though she didn't do anything wrong. She was just in the wrong place at the wrong time."

A video of the incident taken from outside the restaurant showed additional actions, such such as the use of mace -- events that left Pena even more astonished about abusive behavior toward the public. So did the stories she heard from others at the Diner after she was released from custody. "One of the girls who'd been maced, and who was totally innocent, was saying, 'I'm going to call a lawyer.'" Meanwhile, Ortega was transported from the scene in a patrol car, "and when they let her make her first phone call, she called me, and said it sounded like she was going to have to stay in jail over the weekend. And I thought, 'Oh my God. I can't believe this happened."

She's equally aghast that Nixon and Devine got their jobs back after being fired. "I understand the complexities of the issues around the way investigations are done, and of collecting witness testimony and that kind of thing," she says. "But no matter how you look at any of those videos -- no matter what angle or perspective -- you can't deny the truth. The camera isn't going to lie, and the way those officers acted was way out of line. And that's an understatement."

In Pena's opinion, and that of the Colorado Progressive Coalition as a whole, making sure Nixon and Devine are sidelined while the city appeals their reinstatement "is extremely important. This has been one of the demands we've been making as an organization over and over. And if that sort of request had been honored when the Alex Landau case happened, who knows what would have happened in the future? There have to be consequences to actions like this in any field, but especially if you're a public servant. And if we're to restore any kind of public trust in the police department, it's important they don't end up on the streets again, period, but at the very least through the investigation."

Page down 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 lawsuit by plaintiff Kelly Boren.

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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