Two Denver jail deputies and a supervisor are being disciplined in the death of a black, homeless jail inmate who suffocated while being restrained during a psychotic episode, but an attorney representing the dead man's family and the city's independent police monitor both called the discipline inadequate.
The city announced Wednesday that the three would be suspended without pay for between 10 and 16 days. The deputies also must undergo remedial training in the use of force.
Michael Marshall, 50, died in 2015 after he was restrained in a prone position for several minutes. He choked on his own vomit and suffocated. Experts say the common but risky tactic can be lethal, especially on those with medical problems and the mentally ill, whose distress is sometimes confused with resistance. An autopsy said the use of force contributed to Marshall's asphyxiation, though he also suffered a heart attack and had underlying heart problems. His death was ruled a homicide.
Marshall had been arrested on suspicion of trespassing and remained in jail because he did not have $100 to bond out. After a few days, Marshall, who had mental health problems, began to act in a manic and erratic manner. He was separated from other inmates on Nov. 11 after approaching another inmate in an aggressive manner. Deputies began to restrain him after he tried to walk out of the room. Deputies reported that Marshall seemed in a trance-like state when he tried to walk out of a room where he was being held, and he did not speak to deputies or respond to orders.
Prosecutors declined to file criminal charges in the case, saying the deputies weren't trying to hurt Marshall.
“The tragic death of Mr. Marshall and the time it has taken to complete a thorough review of the incident has been difficult for his loved ones and for everyone involved,” Executive Director of Safety Stephanie O’Malley said in a statement. “The Sheriff Department takes its charge to ensure the safety and security of Denver’s jails seriously, and when someone dies, the entire department, family members, and the greater community feel the gravity of the tragic outcome. After conducting a full review of the incident and considering the facts and circumstances of the case, it has been determined that three of the employees associated with the incident violated rules and regulations. As such, discipline is appropriate and has been imposed.”
In the disciplinary letters to the officers, investigators describe nurses raising concerns about Marshall's condition and that he might aspirate and telling deputies that they shouldn't put pressure on his head, neck or chest, but Deputy Bret Garegnani, who received the 16-day suspension, continued to restrain Marshall as he went in and out of consciousness, according to investigators.
Deputy Carlos Hernandez, who received a 10-day suspension, applied nunchucks to Marshall's ankle when he was already restrained by several other deputies, in leg irons and handcuffed. The application of pressure occurred when Marshall had stopped resisting, and he began to struggle again in response, according to the disciplinary letter.
Deputies are supposed to use the lowest level of force necessary to control a situation.
Capt. James Johnson also received a 10-day suspension for what investigators called his "overall lackadaisical approach and passive management of the situation." If Johnson had taken a more active role, the disciplinary letter states, he could have facilitated communication between medical staff and deputies and contributed to better decision-making by everyone. The letter describes Johnson standing by while the incident unfolded and making light conversation about other matters rather than focusing on what was going on.
Independent Monitor Nicholas Mitchell, whose office has been tracking the case, said the discipline does not seem to match the seriousness of the offense.
"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," he said in an email. "We are currently reviewing the decisions and will provide further analysis in an upcoming report."
Darold Killmer, an attorney representing the Marshall family, used even stronger language.
"A man died at the hands of law enforcement and an investigation showed it was excessive force. There ought to have been terminations," Killmer said.
The family has not yet filed a lawsuit, in part because they were waiting for the results of this investigation. Killmer said the family wants the city to reach out to them to explain what changes are being made so that this won't happen again, and if that doesn't happen, it's likely there will be a civil rights lawsuit in federal court.
"It's devastating because they've been told, 'Be patient, we're doing a thorough investigation,'" Killmer said.
Killmer said he's seen administrative offenses result in longer suspensions. He's also concerned that most of the other deputies and supervisors who were on scene are not being disciplined for failure to intervene.
"It's not the policies that are defective," he said. "It's the leadership and the personnel that are defective. The policies have always said you shouldn't kill people. ... The problem is that when someone violates the policy, they'll slap them on the wrist and welcome them back with open arms."
The Associated Press contributed to this report.
