Sheriff's Capt. James Johnson was standing by as deputies piled on Michael Marshall in Denver's Downtown Detention Center in 2015. Marshall vomited, lost consciousness and later died. The coroner ruled that Marshall's death was a homicide, and Denver reached a $4.65 million settlement with his family.
Johnson received a 10-day suspension without pay for what officials described as an “overall lackadaisical approach and passive management of the situation.” But a hearing officer recently overturned that suspension after finding that Johnson acted appropriately for a supervisor.
To reach that conclusion, hearing officer Bruce Plotkin cited the testimony of Jeff Wood, a former captain who retired with an open use of force complaint against him. According to a summary of the complaint and security video of the incident, Wood punched an inmate in the face after the inmate was verbally disruptive during a search of his pod for contraband.
Plotkin found that Wood's actions had no bearing on his credibility.
Daelene Mix, a spokeswoman for the Department of Public Safety, said the agency has concerns with Wood's testimony.
"This is concerning, and we are engaged in conversations with appropriate individuals to determine how to appropriately address this situation," she said in an email.
The hearing officer, not the department, decides who can testify and how to weigh their testimony in these cases.
Darold Killmer, an attorney for the Marshall family, said the credence given to Wood's testimony represents a larger, systemic problem in how Denver disciplines its law enforcement officers.
"Of course Capt. Wood said it's fine. He wouldn't recognize excessive force if it were staring him in the face," Killmer said. "I shake my head because the beat goes on."
Daniel Foster, the attorney representing Johnson, said Plotkin made the right decision. Wood's actions might be relevant if Johnson were accused of use of force, but they have no bearing on whether Johnson acted appropriately as a supervisor.
"Capt. Johnson was not alleged to have used unlawful force," Foster said. "Capt. Wood's opinion is irrelevant from that standpoint because he wasn't testifying about Capt. Johnson's use of force. If he were, I would probably agree that his opinion would need more scrutiny."
In fact, Johnson was investigated for potential inappropriate force and failure to supervise. Internal affairs did not recommend discipline in the case, but the manager of safety never weighed in.
First, let's review what happened in the Marshall case.
Marshall, 50, suffered from serious mental illness. He was in jail on a trespassing charge after creating a disturbance at a motel because he couldn't find his Bible; he didn't have $100 to bond out. After refusing to take his medication for several days, Marshall suffered a psychotic episode, during which he smeared feces on the wall, tore up his food and pulled foam from his mattress. He was removed from his cell so it could be cleaned, but he tried to walk out of the waiting area where he was placed and didn't listen to deputies' commands. Deputies described him as being in a trance-like state. At one point, a deputy pushed Marshall in the chest, Marshall fell to the ground and other deputies joined in trying to restrain Marshall.
Marshall was restrained in a prone position for several minutes, choked on his own vomit and suffocated. 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.
Earlier this year, the Department of Public Safety handed down suspensions for two of the deputies who restrained Marshall and for Johnson, the supervisor on scene. At the time, activists and the city's civilian oversight board, as well as Independent Monitor Nicholas Mitchell, criticized the suspensions as too lenient for the severity of the incident. Employees who mishandled firearms, parked in restricted areas and repeatedly left work early received harsher penalties, a Denverite examination of disciplinary records found.
Then the city reached a multimillion-dollar settlement with the Marshall family that also included promises to change staffing and policies related to treatment of inmates with serious mental illness.
Not long after the settlement was announced, Plotkin, the hearing officer, overturned the suspensions of all three sheriff's department employees who were disciplined in the case. Two deputies, Carlos Hernandez and Bret Garegnani, had received 10- and 16-day suspensions, respectively, related to inappropriate force. Johnson was suspended for 10 days for his overall handling of the incident.
However, Plotkin found that the deputies and their supervisor acted appropriately in a difficult situation. It's not unusual for hearing officers to reverse discipline on appeal. The city, in turn, is appealing that decision to the full career service board, which sometimes disagrees with the hearing officer and reinstates some or all of the original discipline.
Depending on whom you ask, discipline gets overturned so often because the career service process is stacked in officers' favor or because the department is handing down unjustified discipline in response to public pressure.
In the case of deputies Hernandez and Garegnani, Plotkin used testimony from sheriff department trainer Eishi Yamaguchi. Yamaguchi described the deputies’ actions as a model for others and said he would like to use the video of the incident that resulted in Marshall's death for training purposes.
Due to the pending appeal, the department isn't talking much about the case. However, Mix did point to changes in the career service rules that say hearing officers should not substitute their judgement for that of the manager of safety and that place the burden of proof on appellants to show that discipline was erroneous. She said the department is hopeful these changes result in fewer cases of discipline being overturned. For his part, Foster sees these changes as a violation of officers' due process rights.
So what about Wood?
Wood left the sheriff's department in September 2016 with an open complaint that alleged inappropriate force and failure to supervise.
The complaint relates to an incident that occurred on Feb. 12, 2016. According to a summary of the complaint, an inmate became disruptive while his pod was being searched for contraband. Wood reportedly intervened after the inmate became verbally abusive to deputies, physically escorted the inmate from the area and then struck him in the face with a closed fist.
This is how the report describes the events leading up to the blow:
"As Inmate (Name Redacted) walks through the door while Captain Wood is pushing him forward into the corridor, it appears he raises his hands further, particularly his right arm, as if to shrug off Captain Wood's hold on him, but both of his arms quickly come back down. As Inmate (Name Redacted) is walking down the corridor with Captain Wood still pushing him, he is no longer leaning forward but instead has the appearance of doing the opposite as if to resist Captain Wood pushing him forward. ... As he continues to resist being pushed, Captain Wood pushes him against the wall. ... Immediately after being pushed against the wall, Inmate (Name Redacted) turns to face Captain Wood and his left arm is seen swinging back behind him and then it immediately swings forward again, where both arms then remain at his side. Captain Wood reacts and strikes Inmate (Name Redacted) in the face with a closed fist. Inmate (Name Redacted)'s head hits the wall, and he immediately puts his head down and shields himself."
According to the investigation, the inmate said he was "talking trash" and apologized for doing so. However, "he said Captain Wood could have handled the situation better and said that the punch was uncalled for."
You can see each of the separate security videos from which we made this composite here.
The inmate spent 30 days in solitary confinement related to the incident, according to the complaint summary. Wood, meanwhile, was placed on restricted duty with no inmate contact.
The district attorney's office declined to file any charges in the case because there was "no reasonable likelihood of conviction," and Denver Police internal affairs did not recommend disciplinary review. However, the ultimate decision would have belonged to O'Malley, the manager of safety. The Office of the Independent Monitor would also have had an opportunity to weigh in before O'Malley reached a decision.
At the time the incident occurred, Wood could have faced anything from a verbal reprimand to dismissal on the failure to supervise claim and anything from a four-day suspension to dismissal on the inappropriate force, according to the department's discipline matrix. That range depends whether mitigating or aggravating factors applied.
Plotkin wrote that the complaint had no bearing on Wood's credibility as a witness because the investigation was never completed.
"The agency alleged Wood was not credible because he had been under investigation for excessive use of force and dishonesty, however the investigation was never completed and no findings entered, making the allegations a nullity," Plotkin wrote. "It was apparent Wood was not particularly fond of the agency at the time of his retirement; however, his expertise in the duties of a captain and watch commander were unassailed, and aside from the agency’s attempt to discredit Wood’s general credibility, it offered no rebuttal to Wood’ statements regarding the proper role for a captain and watch commander during a critical incident."
Foster said Wood's testimony was just one piece of a broader case that resulted in the discipline being overturned. The sergeants in the case who were closest to the deputies restraining Marshall were not disciplined, and the deputies themselves testified they would not have expected a captain to intervene and yell orders during a critical incident.
"The suspension was overturned because he didn't fail in his duties to supervise," Foster said.
And for this case, the previous career service rules, in which the department has the burden of proof, were in effect.
Killmer said the tendency to see discipline overturned makes it harder to make changes in the culture of the department.
"What message does that send to the troops on the ground?" he said. "They may be threatened with discipline, but they know it won't stick. There has be political courage to make a system that will stick."
Foster said Johnson would have had a duty to intervene if he had perceived the use of force to be inappropriate, but none of the deputies most involved in the incident saw it that way at the time.
"He was not required nor is it expected that he get down on hands and knees and review the actual way that Mr. Marshall was being held down," Foster said. "He had several sergeants who are in charge of that first-level supervision, and all of those sergeants testified the use of force was appropriate."
Lisa Calderón, a community activist on police issues and chair of the Colorado Latino Forum, said the credence granted to Wood's testimony is "problematic," but there's a larger issue related to policies and training.
"We see this over and over, where deputies are doing what they're trained to do," she said. "The administrators are responsible for the training. ... If there is supposed to be a different outcome, give (deputies) different training and different resources."
Foster said it would be impractical and unfair to exclude testimony from officers with open complaints.
"You know how many people have open disciplinary cases against them in the sheriff's department?" he asked rhetorically, suggesting it's a lot. "Everything is open to such scrutiny now. Someone spending too much time in the bathroom can result in a disciplinary case."
The city only settles use-of-force complaints -- as it has done to the tune of tens of millions of dollars in recent years -- because officials are afraid to go to court, Foster said, not because officers and deputies have done anything wrong.
"The city wrote a check for $4.65 million because they are, quote, a bunch of wimps," he said.
Reform efforts and large settlements in police violence and jail death cases have contributed to a tense relationship between department leaders and the rank-and-file in both the sheriff and police departments. Deputies say the changes have made the jail less safe, and the police union recently made a vote of no confidence in Chief Robert White.
For his part, Killmer said responsibility ultimately lies with Mayor Michael Hancock and the City Council, who have the power to change how discipline cases are handled.
"There are so many stops in the Denver system that Denver has put together," he said. "The officers know that they'll win at one of these levels. There have been repeat offenders who have their discipline overturned over and over. ... I don't have too much tolerance for Denver complaining about Denver's own system. Denver could set up a system that allows them to fairly evaluate officer behavior."
