DA to be questioned about excessive force case

Posted at 9:28 AM, Sep 11, 2015
and last updated 2015-09-11 11:28:13-04

A representative for Denver District Attorney Mitch Morrissey will be ordered into a courtroom Friday in a move we do not often see.

That's because a judge wants to hear why the D.A. is not pursuing a criminal case. It all stems from an incident caught on camera, in a Denver courtroom in 2012.           

A deputy is seen slamming a handcuffed and shackled man into a wall -- apparently unprovoked.

The inmate, Anthony Waller, suffered a fractured eye socket, broken teeth and an injured shoulder in the assault. Now, he wants the deputy to be charged with assault and a hate crime.

Waller alleges the deputy, Brady Lovingier, used a term that state statute indicates is derogatory towards blacks.    

"This deputy, Sheriff Brady Lovingier, should be held accountable," said Kenneth Padilla, attorney for Waller.

The case was investigated and presented to the district attorney, but D.A.  Morrissey's office declined to prosecute the deputy.

As the sitting judge at that time of the incident put it, Waller "was not [a] threat," but the manager of safety did suspend the deputy for 30 days due to "unreasonable force."

"It was absolutely, 100% unprovoked," said Padilla.

7NEWS talked with Waller in July 2014.

“You’re just going to snatch me, and slam, just savage, like you didn't care?” said Waller. “Like ‘Oh, like if I kill you it's no problem?’”      

On Friday afternoon, Waller and his attorney will take a petition before District Court Chief Judge Michael Martinez to try and force the D.A. to take the case and charge the deputy criminally. The three-year statute of limitations in the case expires Friday, which is why the judge is hearing it.

Judge Martinez could order the district attorney to file charges against the deputy or appoint a special prosecutor.

"The fact that this man was a deputy sheriff should make no difference in the eyes of the law,” said Padilla. "Anybody else in the private sector assaults someone, they lose their job."

The case is just one in a string of Denver excessive force cases spanning several years.

"That's why they do things with such impunity right in front of the courtroom and the whole world to see,” Padilla said. “Because they know they can get away with it and nothing will happen to them."

This hearing Friday is rare.

A spokeswoman for the D.A. said this kind of thing only happens once or twice a year where the D.A. is forced to explain why he did not file charges.           

The D.A., Mitch Morrissey, had no comment Thursday about the case specifically.           

Waller is also pursuing a separate civil suit against the city for $5 million.