Denver sheriff's deputies who mishandled firearms, parked in restricted areas and repeatedly left work early received harsher punishments than the deputies involved in the death of Michael Marshall, a mentally ill man in jail for trespassing who suffocated while being restrained during a psychotic episode.
When suspensions were announced last month for three people involved in the fatal use-of-force incident, attorneys for Marshall's family and Denver's Independent Monitor Nicholas Mitchell suggested the penalties were not sufficient response to the actions of the two deputies and one supervisor.
According to disciplinary letters sent to the officers, Deputy Bret Garegnani continued to restrain Marshall as he went in and out of consciousness and disregarded warnings from nurses who were on scene. He received a 16-day suspension. Deputy Carlos Hernandez applied nunchucks to Marshall’s ankle when he was already restrained by several other deputies, in leg irons and handcuffed. He received a 10-day suspension. 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.”
A review of other disciplinary actions taken by the Denver Sheriff's Department over the last two years found that a wide range of administrative infractions often netted similar or longer suspensions than use-of-force incidents. One community activist said this speaks to a fundamental problem with the department's discipline matrix, which was supposed to create a more "fair, transparent and predictable" disciplinary regime but instead over-emphasizes intent.
This information comes from anonymized descriptions of misconduct and discipline that are collected and distributed internally within the Sheriff's Department. The incidents occurred between 2013 and 2016 and are reported as the disciplinary process is concluded.
Each offense carries a range of possible consequences, with the final penalty depending on aggravating and mitigating circumstances, including past discipline and whether the employee was forthcoming during the investigation.
These are examples of cases that netted 30-day suspensions for deputies:
- "In June 2014, Captain A reported to IAB concerns about inappropriate conduct by Deputy B while at the Lindsey-Flanigan Courthouse (LFC). The alleged inappropriate conduct included unloading and reloading a firearm in the control center, not properly securing department equipment, parking his/her personal vehicle in a restricted area, and not wearing a radio in a courtroom. Recommendations concerning potential discipline were provided by the Sheriff and the Office of the Independent Monitor. In light of all the circumstances, Deputy B agreed to accept a 30-day suspension for Careless Handling of Firearms."
- "In March 2015, IAB was notified that Deputy A had been leaving work early and not completing a 10-hour shift while assigned to the Saturday work crew at the LFC. Deputy A admitted to leaving approximately 2 hours early on numerous occasions and not completing a leave slip. Recommendations concerning potential discipline were provided by the Sheriff and the Office of the Independent Monitor. In light of all the circumstances, Deputy A agreed to accept a 30-day suspension and forfeited 36 hours of vacation time as restitution to the City. The rule violations that were sustained against Deputy A were Abandoning Post, Completing Leave Slips and Time Accounting Reports, Conduct Prohibited by Law, and Disobedience of Rule Fiscal Accountability Rule 10.13."
- "In March 2015, a deputy at the County Jail was conducting business at work for a company that he owned. The deputy was using his personal cell phone in a housing unit, a secured area, to conduct business. The deputy failed to report secondary employment and did not have written permission to have his phone in any secured area of the facility. Furthermore, the deputy also failed to perform his rounds, conduct roll call, and search inmates as required by post orders. It was also determined that the deputy had been streaming YouTube videos for the inmates as well as excessively using the internet, including allowing inmates to access information on the internet. Recommendations concerning potential discipline were provided by the Sheriff and the Office of the Independent Monitor. The possible penalty range was a verbal reprimand to termination. In light of all of the circumstances, the deputy received a 30-day suspension."
And deputies received penalties in the same 10- to 16-day range as the officers involved in the Marshall case for infractions like leaving work without permission, refusing direct orders, taking excessive unauthorized leave, not showing up to work when scheduled and engaging in prohibited associations with an ex-prisoner.
Use-of-force violations like pulling an inmate's hair for no apparent reason and pepper-spraying an inmate who was already handcuffed netted 10-day suspensions, in the same range as the Marshall case.
Daelene Mix, a spokeswoman for the manager of safety, said she couldn't speak directly to the discipline in the Marshall case, both because it's a personnel matter and because it could be appealed by the deputies involved.
But speaking generally, she said that offenses that involve dishonesty draw severe consequences because they speak to the character and integrity of the people involved. Use of force is also a serious matter, but use of force is part of the job in law enforcement sometimes.
"It's important to understand that not all use of force can be lumped together. Each case is different," she said. "In use-of-force cases, one of the main things we evaluate is why the force was used. Was it used for punishment? Was it used for retaliation? Was it used to intimidate?"
But Lisa Calderon, executive director of the Colorado Latino Forum and a community activist who has been heavily involved in use of force issues, said the current discipline matrix gives far too much weight to intent. In many cases, avoiding excessive use of force is a matter of having the right procedures, training and staffing and then making sure deputies follow procedures and apply training in difficult situations.
Having good intentions is not enough, and that's even more true when dealing with inmates with mental health issues, Calderon said.
"I would argue that no deputies want to kill or seriously harm an inmate," she said. "Both the community and the rank and file DSD staff are getting mixed messages. What it looks like after the fact is that these deputies did nothing wrong, but because there is public outrage, we need to do something. It's a split-the-baby kind of decision."
She said this approach also shifts responsibility away from higher-level decision-makers who set the tone and create the environment in the jail and onto individual deputies.
Mix said incidents that involve dishonesty generally carry a higher penalty in the discipline matrix.
"We have an expectation in public safety and in the greater community that law enforcement is going to be honest in their job duties and their report-writing," she said. "With use of force, we take that seriously as well, especially inappropriate use of force. ... When you're looking to the appropriate penalty to apply, it comes back to the state of mind and the intent. Was the intent to cause harm? That's not what we expect."
It's not that use of force never draws harsh penalties. Deputies have been fired for use of force, even when it didn't result in serious or long-term injury. In some of those cases, the deputies had previously been disciplined for excessive force or lied during the course of the investigation.
"Use of force is part of law enforcement," Mix continued. "It's going to happen from time to time. Sometimes things happen incidentally and not with intent to harm. And there's the question of what can we prove? We have to consider that and also the appellate considerations."
If a harsh penalty is overturned on appeal, it doesn't have much deterrent effect on other officers, Mix said.
Calderon said she was supportive of the new discipline matrix when it was adopted several years ago. Before that, discipline was based on how other officers had been punished for similar conduct in the past. She thought this system would be fairer and more transparent.
But now she sees unintended consequences and "disproportionality."
"It's confusing for the public when a non-contact incident gets more punishment than an event where someone was hurt or even killed," she said. "You don't need intent to seriously harm someone."
Conduct that warranted a written reprimand
- Repeatedly urinating in the supply closet
- Using the criminal database to query yourself
- Filing a "for information only" report instead of a "use of force" report after using force on an inmate
- Failing to report the loss of a department-issued cell phone for more than 45 days
- Re-enacting a use of force incident in front of other deputies, including one who was injured in the incident, in a way that disrespected fellow employees
- Releasing an inmate who should have stayed in custody on another charge
- Miscounting an inmate's money, resulting in $60 not being credited to his account
- Failing to catch a $100 discrepancy in the cash drawer
- Escorting an inmate into the emergency room naked
- Negligent operation of the inmate transfer van, resulting in a minor accident
- Tossing a glove into the middle of a chess board while inmates were playing, then taking a cup holding pieces and flinging it across the room
- Crediting money to the wrong inmate account
- Wearing a gun into a secure area (This person, a high-level command officer, self-reported the incident after a deputy pointed it out.)
- Making inappropriate and disrespectful comments to deputies who arrested a protestor with an outstanding warrant at the courthouse, in spite of an order not to arrest protestors at the courthouse
- Not submitting a report about a use of force incident witnessed by the deputy until two days later
- Failing to pay collective bargaining fair share fees until after the deadline
- Mistakenly placing a hold on an inmate, preventing his release
- Sleeping in the break room
Conduct that warranted suspension
- Careless handling of firearms: 30 days
- Repeatedly leaving two hours early from a 10-hour shift without completing a leave form: 30 days, plus forfeiture of 36 hours of vacation
- Using a personal phone in a secure area to run your side business from the jail, not performing various job duties, streaming YouTube videos for inmates and allowing them to look stuff up on the internet: 30 days
- Leaving work without permission: 16 days
- Excessive use of force: 16 days
- Handcuffing an inmate to a bench when there was no physical threat. The inmate was asking persistent questions and ignoring orders to not talk to other inmates: 16 days
- Refusing a direct order to work in the Downtown Detention Center due to safety concerns: 10 days
- Taking more than 100 hours of unauthorized leave: 10 days
- Pulling the hair of a noncompliant suicidal inmate for no apparent reason: 10 days
- Using pepper spray in the eyes of an inmate who was already handcuffed, after the inmate tried to get up from a bench: 10 days
- Engaging in prohibited association with an ex-prisoner and his brother and bringing a phone into a secure area without permission: 10 days
- Telling an inmate on suicide watch to "just die": 10 days
- Not reporting for work when scheduled: 10 days
- Excessive use of force: 10 days
- Leaving an inmate unattended in an elevator for 35 minutes: 10 day
- Missing a required round to check on a suicidal inmate but logging the round as if it occurred: 10 days
- Using a racial epithet in an informal conversation: 10 days
- Exceeding authority while intervening to stop an assault during off-duty, secondary employment (This included chasing the assailant, reviewing security footage and handcuffing and questioning a person who entered the restaurant with the assailant.): 10 days
- Keeping an inmate in jail for 18 days past his release date: 5 days
- Leaving early without clocking out and lying about it: 4 days
- Keeping an inmate in jail for two days past his release date: 4 days
- Keeping an inmate in jail 12 hours longer than necessary: 3 days
- Releasing the wrong inmate: 3 days
- Mismanaging courtroom security: 3 days
- Not following procedures around inmates who are supposed to kept separate from other inmates, resulting in one inmate assaulting another: 2 days
Conduct that merited termination
- Taunting and threatening inmates and using racially insensitive terms for inmates
- Pushing an inmate who was already complying with an order (This deputy had faced similar discipline in the past.)
- Using excessive force in a retaliatory manner and lying during the course of the investigation (The deception carries a presumptive penalty of termination.)
- Throwing an inmate who was bracing himself against a door backwards, causing him to strike his head on a metal table
