Denver Department of Safety Executive Director Troy Riggs is preparing to respond to the troubling report on Michael Marshall's death while in custody in late 2015 during a meeting at 10 a.m. today, April 25, during a Denver City Council committee meeting.
The public wants answers, including why only three of the ten officers involved in Marshall's death were ever disciplined and why that discipline never resulted in anything more than several days of unpaid suspension. Marshall, who was known to have mental health issues including schizophrenia, choked to death on his own vomit while being restrained face-down on the floor by deputies in a Denver detention center, where he was being held on a $100 bond for a trespassing citation.
Riggs's predecessor, Stephanie O'Malley, headed up the Department of Safety at the time of Marshall's death; she stepped down in early February, more than a month before the Marshall report came out of the Office of the Independent Monitor. Riggs had only been at the department for three months, as deputy director, before he was tapped for the big promotion. (Prior to coming to Denver, Riggs held three public-safety-related jobs over five years in Indianapolis, according to his LinkedIn account.)
Now, with little experience heading up the city's law enforcement agencies and after years of O' Malley's problematic leadership at the Department of Safety, he has to twirl his wand and try to finish reforming the Denver Sheriff's Department.
Riggs is overseeing reform efforts at Denver jails to hold officers accountable for potential use-of-force and other violations. One of those is the appointment of an internal review team that's officially called a "performance-improvement team" to look into the disciplinary process at the sheriff's department. A common criticism, which Riggs and other officials have acknowledged, is the drawn-out process for internally investigating misconduct. In Marshall's case, for instance, it took more than a year for an initial disciplinary decision was made against the deputies involved in his death.
The performance-improvement team will take a holistic look at the sheriff's department disciplinary process, including timeliness of investigations and consistency in applying disciplinary action.
The team will include Deputy Director of Safety Jess Vigil and Sheriff Patrick Firman, who were both involved in the discipline of a captain and two deputies involved in Marshall's death; the sheriff's Conduct Review Office; the Denver City Attorney's Office; and the Internal Affairs Bureau of the sheriff's department — which initially declined to investigate the deputies involved in Marshall's death and, once it took up the case, closed it without interviewing any of the deputies involved or the nurse at the scene, and without considering the medical examiner's report.
Vigil will head up the performance-improvement team. He says the OIM and Department of Safety will never agree on how the sheriff's employees were handled in the Marshall case.
"Generally speaking, everyone except the [OIM] was on the same page in terms of what the level of the misconduct was," Vigil says. "At the end of the day, we came out with a position that we thought was not only appropriate based on the evidence of the case, [but] that was fair, that was consistent, that also took into account that no one intended this outcome. People didn't act with malice or evil purpose or even the intent to inflict serious bodily injury or death on Mr. Marshall. It was a circumstance that obviously was regrettable and preventable...there were training issues involved. But at the end of the day, as the executive director has said, we have to make decisions that not only are based on the evidence presented, but we have to defend in front of hearing officers."
Most notably missing from that lineup of reformers on the performance-improvement team is the Office of the Independent Monitor, which is involved in all official misconduct complaints at the sheriff's department. The OIM receives complaints and reviews investigations by the Internal Affairs Bureau but has no authority to enforce or require more stringent disciplinary actions at the sheriff's department or the Department of Safety.
"[The OIM and law-enforcement unions] will get a say," Riggs says, "but it's a management portion first. ... They'll still have a say in it at the end, but let's not forget, it's still a management decision at the end of the day."
Firman has taken steps to reform the sheriff's department in the wake of Marshall's death. He instituted crisis-intervention training for all staff, required that de-escalation strategies employ "reasonable and necessary" use of force, improved the department's restraint policy, and clarified how law enforcement should act in cases involving medical emergencies. He also instituted around-the-clock mental health services, which was part of a settlement agreement with the Marshall family.
The performance-improvement team will look into the sheriff's department disciplinary process, including the timeliness of misconduct investigations and consistency in applying disciplinary action. Here's a flow chart of how discipline currently works in the sheriff's department:
This review of the sheriff department's discipline process comes nearly six months after the Career Service Authority Board, a five-member board that reviews human-resources issues in the City and County of Denver, approved changes to the disciplinary process for the sheriff's department to make it more difficult for decisions to be overturned on appeal. Prior to the change, personnel at the sheriff's department had nothing to lose by appealing a decision to the Career Service Authority Board, especially given that the hearing officer was required to treat all appeals like a new trial, where cases had to be started from scratch. The burden of proof rested with the Department of Safety, which had to defend its disciplinary decisions.
Under the new appeals process approved by the Career Service Authority Board, hearing officers can't just reset an investigation. Instead, the disciplined employee has to prove that the Department of Safety's decision was erroneous. This finally brings the sheriff's department in line with the appeals process for Denver police and fire personnel, who also fall under the Department of Safety. (Of course, all decisions can still be appealed to the courts.)
Although this change won't impact the disciplinary decisions in Marshall's death — the officers in that case appealed them last year, and a hearing officer overturned their suspensions in November — the Department of Safety is optimistic that the change will be critical to improving the culture within the sheriff's department.
"Moving forward, we believe our discipline will have a better chance of being affirmed or upheld because we have worked to undertake some reform in the Career Service Authority [Board], very similar to what happened in the Civil Service Commission [in 2013]. The burden of proof shifted to the deputy. ... The standard is whether the decision was clearly erroneous," Vigil says. "We think outcomes like what happened here [with the suspension being overturned] are less likely to happen in the future."
The Department of Safety is also expected to announce today that it will appoint a second performance-improvement team to look into overtime and staffing issues that have plagued the sheriff's department for the past few years. In 2016, Firman spent a record-setting $14 million on overtime, and halfway through last year had already clocked in another $7 million. The Fraternal Order of Police in Denver called out Firman in 2017 for "gross mismanagement" of department resources.
But back to more reform efforts most directly related to the report on Marshall's death, since that's what today's meeting is all about.
The Department of Safety — then under Deputy Director Vigil — got defensive when the Marshall report was issued, sending a four-page letter to the OIM disputing many of its claims. But Riggs is taking a different approach. He has laid out, recommendation by recommendation, his response to the report on Marshall's death, even agreeing with the OIM on some of its recommendations.
"I think we can do better. This was certainly a tragedy that happened. It should have never happened. It should have never occurred," Riggs says, adding, "I believe we need to be very transparent."
Riggs and the OIM align on some reform efforts. Riggs says he is open to more civilian oversight of the Internal Affairs Bureau and other areas of the sheriff's department as part of a cultural shift. For one, the sheriff's department is revising its hiring policies to require candidates to disclose their disciplinary history. (A deputy involved in Marshall's death was able to transfer to the Denver Police Department while under criminal investigation and after an initial disciplinary investigation was conducted.)
Riggs goes even further. He is currently working with other government stakeholders to improve pre-trial services. He hopes to support reform efforts to eliminate cash bail bonds for low-risk offenders like Marshall, who was arrested for trespassing and held on only a $100 bond, and wants to ensure that those with mental health issues are treated, not incarcerated.
But Riggs is resistant to change in other areas. He doesn't agree with the OIM's recommendation to issue guidelines for releasing evidence — like jail video footage — of critical events in a timely manner when there is no active investigation. This is especially important given that the City of Denver refused to release damning footage of Marshall in the minutes leading up to his death. The Colorado Independent filed a lawsuit in 2016 to force the city to hand over the footage.
Riggs also doesn't agree with recommendations to tack on explanations to formal disciplinary orders that would spell out in the public record how a disciplinary decision was made. Instead, Riggs says, the department is considering different options for addressing "public perceptions" around disciplinary actions. He has also stood by the disciplinary actions taken against the two deputies and captain involved in Marshall's death, saying that the punishment must fit the crime and that consideration must be made for how decisions will hold up on appeal.
"We have to do a better job of what Jess [Vigil] said, explaining to the public, so he's hired a new [communications] professional [at the sheriff's department] to help with that in the future, so we're certainly committed to doing that," Riggs says. "I will say what we have to be careful of here is...when we mete out discipline, they can appeal, and we need to make sure that, one, we're improving conduct with the discipline that's fair and equitable to what others have received, but that also we can win the appeal if and when it goes to appeal."
Vigil echoed that sentiment last month in his letter to the OIM, which said that the Department of Safety "was simply not willing to impose disciplinary action that was unsupported by the evidence and that would not stand on appeal." Vigil even pointed to the Career Service Board hearing officer's decision in November to overturn the three suspension decisions as the reason harsher punishment wasn't sought.
As for the addition of a formal explanation for disciplinary decisions, Vigil called that an "unnecessary and time-consuming exercise."
Revamped mental health training is already under way at the sheriff's department that includes responding to excited delirium, a condition that Marshall was reportedly suffering from leading up to his death. Emergency communication protocols with medical staff is under review. And three years after a report (that cost $295,000 to commission) revealed across-the-board inadequacies within the sheriff's department, including its use-of-orce policy, the Department of Safety is finally developing a force-review protocol in order to analyze and learn from critical incidents in Denver's jails.
Riggs plans to provide a more detailed look into reform efforts when he releases a department report this summer.
Here is the presentation for today's meeting, which is in response to the OIM's reform recommendations:
Update: This story has been updated to clarify Riggs's role in the overhaul of the sheriff's department and the city's involvement in releasing footage of Marshall's death.
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