“Safety is paramount:” Why no one was punished for Michael Marshall’s death

(Kevin J. Beaty/Denverite)

staff photo

The death of Michael Marshall resulted in a $4.65 million payout from the city, but no discipline at all for the sheriff’s employees who restrained him at a Denver jail before his death.

An oversight agency laid out a scathing report on the incident, saying that deputies restrained the man even after he had vomited and a nurse reportedly had warned that he could choke. But a hearing officer rejected all punishment of the people involved, saying that there wasn’t enough evidence that they had broken sheriff’s department rules.

So, what happened in the city’s disciplinary process?

At first, investigators tried to close the case.

The sheriff’s Internal Affairs Bureau is supposed to look into cases where employees may have done wrong. Late in 2015, they were called in to investigate the death of Marshall, a man with schizophrenia who had been arrested on suspicion of trespassing. He was jailed because he couldn’t pay his $100 bond.

After refusing his medications, Marshall tore apart his bedding and started acting aggressively. During the episode, deputies put their weight on the 112-pound man for extended periods over about 11 minutes, a period during which he vomited, went limp and later started moving again.

Shortly after he was pressed into the ground for the last time, Marshall fell into a coma. He died nine days later. A medical examiner found he had died of complications from choking on his vomit.

By Feb. 2016, internal affairs had a conclusion: Nobody had done anything wrong.

The investigators submitted the investigation, saying it was complete. They had not interviewed any of the people who had restrained Marshall, nor any of the nurses, according to the Office of the Independent Monitor.

They did not ask them how supervisors acted, and they did not ask about a medical examiner’s report that said Marshall had died in part due to the restraint, according to a report from the city’s Office of the Independent Monitor. They did not ask whether or why a deputy had kept pressing on a limp man who had vomited and was in handcuffs and leg irons.

They did not recommend any discipline.

The monitor’s office said the investigation was incomplete, so the internal team kept working — and came back in June 2016, again recommending no discipline.

The monitor’s office again asked the investigators to go back and try again to talk to the nurses. This time, the nurses answered questions, and in August 2016 the investigation was allowed to proceed to the next phase of review.

Next, the city tried to discipline three people.

Over the next eight months, the safety department’s Conduct Review Office would look over the case. By April 19, 2017, the leadership of the Department of Safety had its recommendations.

One deputy, Bret Garegnani, would be given a 16-day suspension. He also would be nominated for a life-saver award because he performed CPR for an extended period of time.

The order said that he had used “inappropriate force by applying pressure to vital sensitive areas” during a period of about 11 minutes during which Marshall went limp, vomited and started moving again, according to the OIM report.

One nurse said the deputy had rejected her advice to reduce the weight on Marshall. Another reportedly said she was concerned that the deputy was holding Marshall’s head down while he vomited. But other witnesses said they never heard the warning.

A second deputy, Carlos Hernandez, would get a 10-day suspension for unnecessary force, while Capt. James Johnson got 10 days for neglecting supervisory duties, the OIM reported. Johnson had shown a “lackadaisical approach,” standing away from the incident, according to the disciplinary order, though a hearing officer later found he was paying close attention.

The OIM criticized the discipline choices as potentially too light. The employees’ actions were categorized only as lower-level violations that involved a “serious risk” to a person, rather than higher categories that include “actual serious and adverse impact.”

Meanwhile, in the same year, a deputy accused of seeking faster service at a fast-food restaurant got a 30-day suspension — nearly twice as much as the longest discipline in the Marshall case.

Seven other deputies and sergeants faced no discipline at all in the Marshall incident. Garegnani did respond to a request for comment.

All of the punishments were overturned anyway.

The three employees appealed their suspensions to the city’s Career Service Hearing Office. All three won.

It came down, in part, to some fundamental questions: Were the deputies rightly afraid that this person would hurt someone if they stopped restraining him? Or were they causing him to resist?

First, hearing officer Bruce Plotkin overturned the punishment of deputies Garegnani and Hernandez. He agreed that Marshall had become “highly unstable,” but he didn’t find that the deputies had mishandled the case.

For example, the disciplinary order said that Hernandez had used excessive force with his nunchucks, a “pain compliance tool,” on Marshall’s foot. In fact, the nunchucks broke under the force. A civilian administrator, Shannon Elwell argued that this pain may have caused Marshall to start resisting again.

But the deputies felt justified by Marshall’s continued resistance. One said that he had to keep adding force “even when five deputies were on top of him,” Plotkin noted. The deputies stopped pressing on Marshall when he passed out, but resumed when he woke back up and “began resisting forcefully again.”

The hearing officer found that the deputies made a logical choice: the sheriff’s “rules make it clear that, when faced with a crossroads of safety and medical concerns, safety is paramount,” he noted.

In fact, a trainer with the department said he had “zero concerns” with the deputies’ behavior and even wanted to use the video for training. In other words, the deputies were just following the standard approach to keep control in jail.

But the standard approach can be exactly wrong for mental-health episodes, according to Michael Gennaco, a consultant who previously worked for the city on a jail reform effort.

“Barking orders, taking a command presence, using force  — all those things that are taught as a way to control an individual who is combative, resistant, noncompliant — often have the opposite effect with someone who’s not coherent or having a mental health crisis,” he said.

Marshall may have been resisting because he was in “excited delirium,” according to Nick Mitchell, the city’s civilian monitor for law enforcement.

People in this mental state may behave bizarrely and violently, leading authorities to restrain them — and, in some cases, to their deaths. Sheriff’s deputies in Denver are trained to recognize the condition, and they’re informed that pressuring a person’s already-stressed airways could be dangerous, according to Mitchell.

But the deputies said they didn’t immediately realize that might be happening to Marshall. They did, however, notice that he had extraordinary strength and didn’t seem to feel pain, they told investigators.

It’s hard to make discipline stick in these cases.

All of the discipline cases are now on appeal. The city’s attorneys will try to convince the full Career Service board to enforce the suspensions — but it could be an uphill battle.

Plotkin also overturned the punishment of Capt. Johnson, a 24-year employee of the city, who was the highest ranked person on scene. The hearing officer noted that the sergeants — a rank that falls between deputies and captains — were not disciplined.

“Because there may be shared culpability, there’s no culpability,” Gennaco said, speaking generally.

Plus, he added, “it’s difficult to hold an individual accountable if that’s how they’ve been trained to respond.”

Plotkin’s rulings also came down to conflicts about the facts. For example, surveillance cameras didn’t capture audio, so it confirms only that the nurse said something to Garegnani. (The Colorado Independent sued to make the video public.)

The cameras caught only a limited view of the restraint, making it impossible to say whether Garegnani was pushing on the chest or just the shoulders of the man beneath him, Plotkin noted.  And the nurses could not have known exactly how much pressure the deputy was putting on the restrained man, the hearing officer wrote. (The deputy said he only used enough force to keep Marshall down.)

Some are calling for change.

Katina Banks, chair of the Citizen Oversight Board, said that she would like to know more about the disciplinary process, and particularly the role played by Career Service, which oversees a broad range of HR functions for city departments.

“That could be something to take a closer look at: The structure and the fact that cases can be appealed to the Career Service office, and because of that the Department of Safety appears constrained at times,” Banks said.

Safety officials at times have said that they choose discipline charges that can survive appeal to the board  — as opposed to charges that fit the descriptions in the rules.

“As a lawyer, I understand that. But it’s problematic that they feel the discipline in the discipline matrix might not stand up,” Banks said.

Additionally, the independent monitor’s office has suggested that the internal affairs investigators be put under civilian control.

Mayor Michael Hancock has described Marshall’s death as a “deep tragedy,” and said it’s looking at more reforms. The public safety department has said it’s open to changes for internal affairs, but defended its handling of the case as fair and thorough.

Some changes are in motion already.

As part of the settlement with Marshall’s family, the city is making changes that could help people defuse these situations.

The sheriff’s department promised in July 2016 to spend more than $1 million to put all its deputies through a 40-hour crisis-intervention training.

The department also changed its policy on the use of restraints — including guidance that says “spit hoods” shouldn’t be put over inmate’s heads if they have vomited.

The settlement with Marshall’s family also requires the city to constantly staff a new mental-health professional in each of its two jails.

 

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