Denver's decision to apply 10- and 16-day suspensions to two sheriff's deputies who restrained Michael Marshall before his death in the Downtown Detention Center has been overturned by a hearing officer.
In reaching his decision, Career Service Authority hearing office Bruce Plotkin leaned heavily on the testimony of Eishi Yamaguchi, a trainer with the Denver Sheriff's Department, who described deputies' actions as a model for others.
"Yamaguchi has been a trainer on the use of force for the agency for six years, and also is assigned to the Emergency Response Team for the Agency," Plotkin wrote "After viewing the video recording of the incident he found both appellants’ actions were reasonable and appropriate under the agency’s use of force policy, and he went further by asking for a copy of the video in order to show in training sessions how the use of force policy should be implemented."
Just last week, Denver announced it had entered into a settlement agreement with Marshall's family in which it would pay $4.65 million and adopt new practices for dealing with inmates with serious mental health issues. That settlement received initial approval from the Denver City Council Monday night.
Later in his report, Plotkin quoted Yamaguchi: "Asked for his opinion whether the appellants’ actions, from the very beginning to the very end of the video, were reasonable and appropriate, Yamaguchi concluded, 'Yes, sir, most definitely, I have zero concerns about anything they did. I was expecting to see something different. Actually, I’d love to have the video just for training...'"
A spokeswoman for the Department of Public Safety, which oversees the police and sheriff's departments, called Yamaguchi's comments "concerning."
"The trainer’s comments are very concerning and do not align with the department’s position on use of force and de-escalation tactics employees are required to follow," Daelene Mix said in an email. "We are discussing additional steps that can be taken to help ensure our deputies receive the appropriate training."
Mix declined to answer additional questions about Yamaguchi, citing the possibility of an appeal.
Darold Killmer, an attorney for Marshall's family, called Yamaguchi's statements "astonishing" and said he should be the first person to undergo retraining under the new policies outlined in the settlement, if he keeps his job at all.
"The fact that a Denver trainer would say that the deputy acted appropriately is nothing short of petrifying, and it demonstrates exactly why the training we were able to get in the settlement is essential," said Mari Newman, Killmer's co-counsel.
The deputies' discipline was criticized as insufficient by Independent Monitor Nicholas Mitchell and by the Citizens Oversight Board.
“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,” Mitchell said at the time. “We are currently reviewing the decisions and will provide further analysis in an upcoming report.”
That report has not been issued yet.
But in contrast to the city's original finding that deputies Carlos Hernandez and Bret Garegnani used unnecessary force after Marshall had already been restrained, Career Service Authority hearing officer Bruce Plotkin ruled that Hernandez and Garegnani acted appropriately in a difficult and unpredictable situation. Hernandez's 10-day suspension and Garegnani's 16-day suspension both were overturned in their entirety.
The city could appeal the decision to the full Career Service Board, and a ruling by the board could be appealed to Denver District Court.
“The hearing officer’s decision to reverse our disciplinary orders severely undermines our authority as an employer and prevents us from appropriately disciplining deputies who have violated department rules and regulations," Mix wrote. "The hearing officer should not have substituted his judgment for that of the department’s. Hopefully, the new rules the Career Service Board recently adopted will prevent this from happening in future discipline cases. Based on the administrative review of the incident, we continue to believe that discipline is warranted and we will confer with the City Attorney’s Office regarding our appellate options.”
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.
Capt. James Johnson also received a 10-day suspension for what investigators called his “overall lackadaisical approach and passive management of the situation.” This suspension was also overturned, with a hearing officer citing the testimony of another captain who defended Johnson's actions.
In overturning the discipline, Plotkin pointed to the fact that Marshall continued to resist despite the application of a variety of pain holds and that he resisted both before and after Hernandez applied nunchucks to his ankle. In the discipline letter, city officials said Marshall had stopped resisting and started resisting again after Hernandez applied force to him. In Garegnani's case, the discipline letter stated that he applied excessive pressure to Marshall's head and neck, but Plotkin found that some of the nurses on scene did not believe Garegnani's actions caused Marshall to have difficulty breathing. Plotkin also highlighted deputies' efforts to talk to Marshall and get him to comply that way and their assistance with medical efforts once Marshall became unresponsive.
This story has been updated to include reaction from the Department of Public Safety and attorneys for the Marshall family, as well as the outcome of Capt. Johnson's appeal.
