Denver's Independent Monitor is calling out the Denver Sheriff's Department for the way it handled the internal affairs investigation following the death of Denver County jail inmate Michael Marshall in 2015.
In a lengthy report released just this morning, Independent Monitor Nick Mitchell says the internal affairs investigation and the disciplinary decisions were flawed.
He makes eight recommendations for the Denver Sheriff's Department, including making the head of internal affairs a job for an outsider.
Mitchell monitors Denver Police and Denver Sheriff's internal investigations and helps recommend discipline.
His report also reveals that a deputy involved in the Marshall incident was recommended for the department's "Life Saving Award," even though Marshall later died.
Marshall was arrested for disturbing the peace and trespassing and taken to the county jail on Nov. 7, 2015.
Four days later he was restrained by deputies while experiencing a psychotic episode.
Deputies placed him face down in the prone position. A spit hood was also placed over his face. Marshall choked on his own vomit, went in and out of consciousness and was eventually taken to the hospital, where he died on Nov. 20, 2015.
On Nov. 1, 2017, his family and the city announced a settlement for $4.65 million.
The Denver District Attorney reviewed the case to see if any laws were broken during the restraining of Marshall, but the DA declined to press charges.
According to Mitchell's report, the Denver Sheriff's Department (DSD) Internal Affairs Bureau (IAB) tried to decline the case for further investigation and close the case, without interviewing any of the key players.
"IAB had not interviewed any of the deputies involved in the use of force… or the nurses who responded to the medical emergency call," wrote Mitchell.
According to his report, a nurse told one of the deputies to "release pressure from Mr. Marshall's neck because Mr. Marshall was vomiting, and she feared that he could aspirate." The deputy, Bret Gargenani, did not do so. In a later interview with investigators, Garegnani said he did not recall this.
This report also reveals that Garegnani's supervisor recommended him for the department's "Life Saving Award" a month-and-a-half before the DA's criminal investigation was complete. He was nominated, even though Marshall died.
According to a footnote in the Independent Monitor's report:
- Letter from a DSD Sergeant to Sheriff Patrick Firman (Dec. 8, 2015) (“It is with great pleasure as a supervisor on the Denver Sheriff Department that I recommend Deputy Sheriff Bret Garegnani for the Denver Sheriff Departments ‘Life Saving Award’ [sic].” According to the nomination, it was because of Deputy Garegnani’s initiation of CPR on Mr. Marshall that "[Mr. Marshall] regained a heart rhythm and…remained alive for a number of days to allow for family members to visit with their loved one before he finally succumbed to his ailment and passed away…Deputy Garegnani is ultimately responsible for prolonging the life of Michael Marshall which allowed for those valuable moments that the Marshall family ultimately had with Michael and will be forever grateful to Deputy Garegnani.).
According to the autopsy report, Marshall "died as a result of complications of positional asphyxia to include aspiration pneumonia due to physical restraint by law enforcement due to agitation during acute psychotic episode."
Garegnani did not receive the award.
"To say I'm angry and devastated is an understatement," said Natalia Marshall, Michael Marshall's niece. "For someone to say that we should be forever grateful, and I quote, 'we should be forever grateful,' for you fracturing and putting a spit mask over my uncle's face as he vomited. We should be forever grateful?"
Mitchell believes that the wrong category of conduct was used when determining discipline for Garegnani. The city has a matrix that puts discipline and punishment in certain categories. The more severe the conduct, the higher the category the punishment falls under.
He also questions why the sergeants in charge of the deputies were not disciplined for failure to supervise, when the captain overseeing all of them was disciplined for that.
In April 2017, Garegnani and Deputy Carlos Hernandez were suspended for inappropriate force. Gargenani received 16 days and Hernandez 10 days. Captain James Johnson was also suspended 10 days for failure to supervise. All three suspensions were overturned on appeal and that decision has since been appealed by the city.
The questioning of the Denver Sheriff's Department Internal Affairs Bureau comes one week after the Sheriff announced an internal review into the release of Ivan Zamarripa-Castaneda. He was in custody on a charge of vehicular homicide and Immigration and Customs Enforcement put a hold on him, to be notified prior to his release. ICE agents were notified that Zamarripa-Castaneda had posted bond and was getting released from prison one hour after he was already released. Sheriff Patrick Firman called it "unacceptable" and said an internal review would take place.
Among the recommendations made by Mitchell in this report:
- Consider placing the management of IAB under civilian control
- When misconduct falls under multiple disciplinary conduct categories, specifically explain why a particular category is chosen to determine the type of punishment.
- Evaluate hiring practices so that potential recruits are not hired when they are under criminal or administrative investigation. (A DSD deputy began the Denver Police training academy while still being investigated in the Marshall case).
- Additional training on excited delirium.
- Develop a policy to resolve urgent medical and security concerns that may be in conflict.
- Train supervisors on how to quickly resolve conflicts between urgent medical and security concerns.
- Create written guidelines regarding the release of public records in critical incidents.
- Develop formal protocol for analyzing and learning from critical incidents in Denver's jails.
In a four-page response attached to the end of the Independent Monitor's report, the Deputy Director of Safety disagrees with much of the report.
"Neither the IAB investigation or the disciplinary decisions that followed were mishandled," Deputy Director of Safety Jess Vigil wrote at the start of the letter dated March 12.
He does write that the internal affairs investigators made a mistake by relying on the Denver Police investigation materials without conducting their own interviews.
"While DSD IAB mistakenly believed it could rely upon the investigation conducted by DSD (Editor's note: This is likely a typo that should be DPD) and did not need to conduct any additional investigation into the deputies' conduct, we disagree with this representation," wrote Vigil.
Vigil continues to take exception with the idea that the investigation was mishandled.
"Contrary to your assertions, the disciplinary decisions in this case were not flawed. The DOS reviewed the conduct of all deputies involved in the incident and imposed only those penalties that it believed, in good faith, were supported by the evidence and could withstand the scrutiny of appellate review," wrote Vigil.
"If he thinks the investigation is flawed, he should not have certified it as thorough and complete," Vigil told 9News on Monday. "Aside from the Marshall case there were, at least, a couple hundred investigations that the internal affairs conducted in 2017, 335 investigations or complaints, that were filed in the Sheriff's Department. The Monitor has not complained about any of those not being thorough and complete."
