Mere days after the City and County of Denver agreed to pay $4.65 million and change some jail policies to settle claims involving Michael Marshall, who died in a Denver detention center circa 2015 during a mental-health episode, a Career Service Board hearing officer has tossed out minor suspensions against Carlos Hernandez and Bret Garegnani, two deputies who took part in the incident.

The lawyers representing the Marshall family are appalled by this decision, as well as by comments in the report about the matter by Denver Sheriff Department Deputy Eishi Yamaguchi, who specializes in training DSD personnel in use-of-force matters. In reference to Hernandez and Garegnani, he's quoted as saying, "I have zero concerns about anything they did. I was expecting to see something different. Actually, I’d love to have the video just for training."

Attorney Darold Killmer, corresponding via email, responds like so: "This astonishing testimony, from a trainer at the jail, shows clearly why inmates keep getting killed and maimed at the Denver jail. Mr. Yamaguchi should be first in line to receive the new training required by the Marshall settlement. In the meantime, he should be removed from his job as trainer, or more inmates will likely die."

Background on the Marshall case can be found in a Denver District Attorney's Office decision letter explaining why criminal charges weren't pressed against deputies involved in the incident. According to the document, Marshall was arrested for trespassing on November 7, 2015, after which he was placed in the Denver Detention Center's 4D pod, described as a "special management unit on the fourth floor."

Prior to his jailing, Marshall had reportedly refused to take medicine prescribed to fight the effects of schizophrenia, and he'd had six police contacts over a 48-hour period. During 911 calls, he's said to have been "rambling" and engaged in "ranting."

On November 11, Marshall was allowed free time out of his cell, but when he "was observed behaving in a strange and erratic manner" and approaching another inmate aggressively, deputies intervened and took him to an area dubbed a "sally port," with a bench on one side of a long hallway.

It's at this point that a video of Marshall's final moments begins. See it here:

The clip shows Marshall slumping to the floor of a Denver jail corridor after being pushed by a deputy in an action that was forceful but not overtly aggressive. The deputies responded by holding Marshall down (even though he didn't appear to be struggling) before transitioning into an unsuccessful attempt to revive him. An autopsy determined that, in all likelihood, he choked to death on his own vomit.

As noted above, no deputies faced criminal charges regarding Marshall's death, but seven were investigated for potential discipline for their actions. In the end, though, only two were designated for punishment. In April, Garegnani received a sixteen-day suspension for failing to follow use-of-force policies and procedures, and Deputy Carlos Hernandez got a ten-day suspension for the same offense.

The length of these suspensions was shorter than previous ones handed out to Denver law enforcers in cases that didn't lead to death, including actions involving a sexually explicit text and flashing a badge to get faster restaurant service. After the discipline was announced, Killmer expressed shock in a Westword interview that it was "so light."

Shortly thereafter, Hernandez and Garegnani appealed the suspensions, and in the subsequent report, accessible below, hearing officer Bruce Plotkin appears to have relied heavily on Deputy Yamaguchi's view of the events when determining that Hernandez and Garegnani didn't violate departmental rules. An excerpt reads: "Neither had any prior discipline; both attempted to talk to Marshall to persuade him to comply with lawful orders and, when discovering those efforts were unavailing, used only that force required to prevent harm to responders; when Marshall’s heart stopped, both Appellants, and Garegnani in particular, engaged in extraordinary measures to save Marshall’s life, even when told by outside medical responders to cease resuscitative measures."

Mari Newman, Killmer's co-counsel in the case, couldn't disagree more with this conclusion. "The disciplinary actions were ridiculously lenient to begin with," she maintains. "The fact that they have now been overturned is nothing short of outrageous. It is absolutely petrifying that a Denver trainer believes that this was an example of good law enforcement. This was brutal excessive force by multiple officers against a small man obviously in the throes of a mental-health crisis."

She adds: "The fact that the people responsible for killing Michael Marshall are not held even one bit accountable is what perpetuates the persistent problem of law enforcement brutality in Denver. Until individual members of law enforcement are held responsible for their conduct, nothing's going to change. This demonstrates exactly why the policy changes we developed with the city in the course of the settlement are so critical. Obviously, they're even more necessary than we ever realized."

A portrait of the late Michael Marshall. Family photo via The Colorado Independent

The policy changes, dubbed the "Marshall Rights," can be found at the bottom of this post.

For his part, Killer echoes Newman's thoughts that "the reversal of these light suspensions demonstrates that Denver’s system is rigged to allow jail guards to treat inmates however they want to, and they’ll get away with it."

Killmer believes "the system of discipline for deputy sheriffs is broken. When corrections officers can brutally kill an inmate on video and receive no discipline at all, there is no accountability. Jail guards know that they are basically immune from any consequences of excessive force, and that gives them the green light to engage in brutality."

Click to access the hearing officer's report, Carlos Hernandez and Bret Garegnani v. Department of Safety, et. al. Here are the so-called Marshall Rights, as summarized by Killmer, Lane and Newman, LLC, the law firm in which Killmer and Newman partner:

1. Denver will fund and fill two additional full-time positions for on-site mental-health providers at the Van Cise-Simonet Detention Center and the Denver County Jail for twenty-four hours a day/seven days per week (one position per facility). These positions will be filled by nurses who are specifically trained in dealing with individuals experiencing mental illness and/or licensed clinical social workers.

2. The Denver Sheriff’s Department (DSD) will now require in-service training on an annual basis for all deputies regarding mental illness in the custodial setting.

3. The DSD will require in-service training on an annual basis for all deputies specific to mental illness and the use of force, with a focus on the custodial setting, de-escalation, tactical options, planned course of action per the Use of Force Policy, and other areas determined by the DSD to be relevant and appropriate. The DSD will develop and implement the initial training session in 2018 and will conduct annual in-service trainings beginning in 2019.

4. Denver Sheriff’s Department will develop a protocol to ensure better communication regarding inmates experiencing mental illness between correctional care medical staff and DSD staff, including supervisors.

5. By March 2018, the DSD (in conjunction with the Department of Safety) will develop a streamlined protocol to allow immediate family members who wish to visit an inmate who has been transported to a correctional care medical facility as a result of a serious/critical injury or illness which occurred at one of Denver’s jails to make a visitation request and ensure that a prompt response to such request is provided, including the facilitation of such visitation, if it is determined that the requested visitation does not inappropriately compromise safety and security and is allowed by the facility. Visitation shall not be denied based upon bond status. As part of this written protocol, a point of contact will be designated who will be responsible for notifying the inmate’s immediate family of the hospitalization and providing information regarding the circumstances related to the inmate’s hospital admission to the extent reasonably possible.

6. By March 2018, the DSD will commence a review and revisions to mental-health policies to remove discretionary language, where determined appropriate, relating to deputies at DDC and COJL contacting medical/mental-health professionals when they encounter mental-health concerns/issues. At a minimum, DSD policy will specifically require deputies to contact medical/mental-health professionals as soon as reasonably possible when they encounter mental-health concerns/issues.

7. For a period of five years (from December 2018-December 2023), the Denver City Attorney’s Office will provide periodic reports regarding the DSD’s training as set forth above. Such reporting will also be included as part of the Denver Sheriff Department’s Annual Report during this five-year period.

