Investigation into Michael Marshall’s death shows sheriff needs civilian oversight, watchdog says

The handling of the subsequent investigation and the sheriff’s department’s “reflexive” responses to the incident point to the need for reform, the report argues.

Michael Marshall's family and their lawyers announce they've made a $4.65 million settlement with the city following his death in jail, Nov. 1, 2017. (Kevin J. Beaty/Denverite) 

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A sheriff’s deputy allegedly ignored a nurse’s advice as he restrained Michael Marshall — a man who had gone limp and vomited — in a Denver jail.

Soon afterward, the deputy, Bret Garegnani, would be unsuccessfully nominated by a supervisor for a “Life Saving Award,” because he later performed CPR on Marshall. Marshall’s heartbeat resumed but he remained in a coma and died nine days later of apparent complications from choking on vomit, according to a medical examiner.

Six weeks later, another deputy involved in the incident was allowed to join the Denver Police Department as a new recruit — even as the police department investigated Marshall’s death. Later, a training specialist at the sheriff’s department would ask to use video of the incident as an example of a proper use of force.

These are among the findings of a new report from the city’s Office of the Independent Monitor. The handling of the subsequent investigation and the sheriff’s department’s “reflexive” responses to the incident point to the need for reform, the report argues.

Darold Killmer, a lawyer for Marshall’s family, said by email that the “report perfectly illustrates why we can’t expect the law enforcement to police themselves.”

The city’s Department of Public Safety maintained in a statement from deputy director Jess Vigil that the sheriff’s department process and culture were not “flawed” and generally worked properly in the investigation of the death.

In a separate response to a question about the police hiring of the deputy, a public safety spokeswoman said that the organization’s practices include “careful consideration,” but that it would “re-examine its hiring process to ensure that a candidate who has pending criminal or administrative matters not be considered for final placement until pending matters are resolved.”

Marshall’s restraint and death:

Marshall was in jail in Denver on Nov. 11, 2015, because he couldn’t afford to pay $100 bond after he was arrested on suspicion of trespassing.

He began behaving erratically, taking off his shirt and aggressively approaching another inmate. He had a mental illness, according to his family. Deputies had him sit on a bench, but he soon tried to walk out of the room.

As he did, deputies brought him to the floor and put him in restraints. They kept him down for 13 minutes, mostly by putting their weight on the 112-pound man, while he occasionally growled or grunted.

One deputy said that he had “never felt anybody that strong before.” Marshall also went limp for minutes at a time and lost consciousness.

Marshall vomited while restrained, and a nurse said she grew concerned that he would choke. But when the nurse asked Garegnani to loosen his grip on Marshall’s neck, he said “Well, we have to restrain him,” according to the nurse’s statements to investigators. (Other witnesses didn’t hear or didn’t recall the exchange.)

Garegnani continued to restrain Marshall by putting pressure on his shoulders and back, even after he had been “specifically advised” not to do that, the report states. In all, Marshall was restrained for nearly 11 minutes after he first went limp. (One of the sergeants involved said that he initially believed that Marshall was “passively resisting” and not unconscious, the report states.)

Marshall eventually was transported to the hospital, where he was found to be comatose. He died nine days later. A medical examiner’s report found that he had died of complications after asphyxiation “due to physical restraint by law enforcement.”

The city ultimately paid $4.65 million to Marshall’s family and promised reforms at the sheriff’s department.

Three of the sheriff’s employees were temporarily suspended. However, the punishment was overturned in each case upon review.

The monitor’s report primarily focuses its criticism on the internal investigation process.

For example, the internal investigators first declared their work complete in February 2016. At the time, they had interviewed neither the deputies nor the nurses. (Police detectives had conducted interviews for a criminal investigation, which has a different purpose.)

The monitor argued that this left crucial questions about the deputies’ actions unanswered, even as internal affairs said its work was done — and despite the fact that there was “evidence of potential misconduct,” including a medical examiner’s report and relevant video footage.

The monitor’s office recommended a deeper investigation, and internal affairs later interviewed six deputies but still didn’t recommend discipline.

The report also argues that sergeants on the scene should have been disciplined for failing to stop the use of force, and it says that Garegnani was improperly assigned the lowest possible level of discipline for that offense.

However, Vigil argued that they went as far as they could with the evidence — and even those lesser charges were later overturned by a hearing officer.

The monitor made recommendations on various topics.

For one thing, the monitor said that the sheriff’s internal affairs bureau should be reformed and potentially put under civilian control. It previously was run by a civilian interim director from 2014 to 2015.

The sheriff’s department is open to “examining and evaluating” the benefits of civilian oversight, it said in a response, but it denied that the case highlighted problems with internal affairs, according to Vigil.

“However, nothing in the Marshall investigation demonstrates bias or partiality, nor is there a ‘culture’ of bias or impartiality (sic) in DSD’s IAB process,” the response stated.

The office also suggested a new, formal protocol for analyzing and learning from these types of incidents, among other recommendations.

Some changes have already been made.

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, which is what happened to Marshall.

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

Marshall’s family remembers him as a kind and loving man.

“He didn’t commit any crime,”said his niece, Natalia Marshall, last year. “My uncle was not a criminal, and I need that to be known.”

Andrew Kenney

Author: Andrew Kenney

Andrew Kenney writes about public spaces, Denver phenomena and whatever else. He previously worked for six years as a reporter at The News & Observer in Raleigh, N.C. His most prized possession is his collection of bizarre voicemail. Leave him one at 303-502-2803, or email akenney@denverite.com.