3 Denver deputies, including captain, suspended without pay over jail inmate's death

DENVER – Two Denver sheriff’s deputies and a department captain will serve unpaid suspensions of between 10 and 16 days in May for policy violations that led to the death of a Denver jail inmate in November 2015.

The Denver Department of Safety on Wednesday released its disciplinary review of the deputies’ actions in the death of Michael Marshall, a jail inmate who was pulled off life support and died several days after the confrontation with the deputies, who staff the city/county jail.

In January 2016, then-Denver District Attorney Mitch Morrissey said he would not pursue charges against any deputies involved in Marshall’s death, despite the coroner deeming it a homicide. Morrissey said that in video he reviewed of the incident, he saw “nothing to indicate excessive force,” saying he believed the six deputies who held Marshall down were holding different parts of his body “so no one has to exert more force than necessary.”

Three deputies disciplined

Deputy Bret Garegnani will serve a 16-day unpaid suspension from May 8 to May 29 for violations of the Career Service Rules on use of force and inappropriate force. He has had no prior disciplinary actions taken against him.

Deputy Captain James Johnson, a 24-year veteran of the department, will serve a 10-day unpaid suspension from May 7 through May 16. He has one prior disciplinary action, but the Department of Safety wrote that the prior instance “does not count” toward imposing discipline in this case.

And Deputy Carlos Hernandez will also serve a 10-day unpaid suspension, which will end May 20. He also has no prior disciplinary actions against him.

All three have 15 days to appeal their suspensions to the Career Service Hearing Office.

Marshall was in jail on a $100 bond

Marshall, 50, was in the Denver jail on a $100 bond after an arrest on trespassing and disturbing the peace charges. He was homeless and had a history of mental illness, and was “behaving in a manic and erratic matter” while in custody two days after his Nov. 7 arrest, according to jail medical personnel.

His family alleges he was not given his necessary medication during his time in jail.

Two days later, on Nov. 11, Marshall continued to act erratically while outside his cell for his daily free time. Jail officials say he “aggressively approached” another inmate, which is when Hernandez and another deputy moved him to a sally port area away from other inmates.

At one point, Marshall, who family members said was only 5-foot-4 and about 110 pounds, tried to get past Garegnani, who pushed him back towards a wall, setting in motion the events that eventually led to Marshall’s death.

Marshall was handcuffed and shackled as he struggled with six deputies, and became unresponsive and stopped breathing during the struggle. He was on the ground for 13 minutes before a jail nurse was called to try and get Marshall breathing.

The accord of the struggle says that the nurse told the deputies not to put any force on his head and neck area, though the nurse said the deputies indeed were putting pressure on Marshall’s neck and that they told her Marshall “was resisting.”

Nurses struggled to clear vomit from Marshall’s airway, and his heart stopped beating. Eventually, he was revived and transported to Denver Health Medical Center, where he lay in a coma for nine days before being taken off life support and dying on Nov. 20, 2015.

The coroner’s office’s report showed Marshall died from “positional asphyxia to include aspiration pneumonia,” meaning vomit in his airways and the manner in which he was restrained potentially contributed to his asphyxiation. The coroner added that chronic heart and lung diseases were contributing factors. His death was ruled a homicide.

Lengthy review of case after DA decides not to press charges

After Morrissey’s ruling that none of the deputies would face charges, a long series of investigations by internal affairs and the Office of the Independent Monitor ensued.

The sheriff department’s Conduct Review Office received the internal affairs investigation last August, finished its analysis in November and presented its findings to Denver Sheriff Patrick Firman in January.

Seven people involved in Marshall’s death were sent contemplation of discipline letters for the incident in early March, but after individual hearings on whether they violated procedures, the Executive Director of Safety’s Office determined that only Garegnani, Hernandez and Johnson would be disciplined.

Marshall’s family said when video of the jail incident was released that it was “unbelievable” no charges were filed against the deputies and said it was “obvious” Marshall was murdered.

The final disciplinary determination says that while Garegnani might not have used force against Marshall for “punitive purposes,” that his “chosen tactical options for applying pressure to inmate Marshall were not ‘necessary’ or the ‘most appropriate to bring the situation to a safe resolution.’” It says he “failed to exercise the least amount of force necessary to achieve his legitimate law enforcement or detention related function” that “at the very least, caused a ‘demonstrable serious risk to [Marshall’s] safety.”

Hernandez’s use of force by using restraints on Marshall was cited as reason for his discipline.

“There is nothing evidence [sic] in the video surveillance footage or deputies’ statements to justify Deputy Hernandez’s escalation from a control hold to a restrain device.”

Johnson, who was at the time the Watch Commander at the Denver Downtown Detention Center, was disciplined for failing to adhere to his duties as a supervisor.

“Captain Johnson’s overall lackadaisical approach and passive management of the situation demonstrated a neglect of duty to fulfill all of the obligations, duties and responsibilities of his rank as both Captain and Watch Commander,” the discipline letter reads.

“Johnson had multiple opportunities to lead the incident in a more positive and productive direction by simply engaging with the responding staff. Instead, his passivity and seeming indifference contributed to poorly informed decision making.”

“The tragic death of Mr. Marshall and the time it has taken to complete a thorough review of the incident has been difficult for his loved ones and for everyone involved,” said Executive Director of Safety Stephanie O’Malley.

The Denver Sheriff Department has since added more crisis intervention training and mental health first aid training to its employees and reviewed its use-of-force policies. It says its justice coordinating committee is also working to divert inmates with mental health issues into support services.

Marshall's family filed a notice of claim to sue the city and Denver Health last May.

Mari Newman, the Marshall family's lawyer, said at a Wednesday afternoon news conference that the two-week suspensions were not enough and called them "outrageous."

Marshall's niece said that it wasn't fair that the deputies get to go home to their families but her uncle doesn't, saying Marshall died a "slow, torturous death."