Denver Diner: Attorney, witness of brutality incident decry accused cops' back-to-work order

Original post, 9:15 a.m. October 12: In April 2011, Officers Ricky Nixon and Kevin Devine were fired for their actions in the 2009 billy-clubbing and macing incident at the Denver Diner. But they were reinstated this past January, and while the city appealed this decision, the Denver Civil Service Commission has now decided they've been punished enough -- a decision that appalls the Manager of Safety and City Attorney. See their responses and learn more about the Denver Diner case below.

The details of the Denver Diner incident are spelled out in a still-active lawsuit filed by four women, Kelly Boren, Sharelle Thomas, Ana Ortega and Kristal Carrillo; our original September 2011 post, complete with photos and the lawsuit itself, are on view below. The document alleges that officers Nixon and Devine menaced the four women with nightsticks, pulled or shoved a number of them to the ground, sprayed them with mace and otherwise mistreated them, despite no compelling evidence that they'd done anything wrong.

Alex Landau after his 2009 beating.

By the way, Nixon was also involved in the 2009 beating of Alex Landau, which resulted in the city paying a $795,000 settlement. However, the Denver investigation of the case was put on hold in June pending the results of a separate federal inquiry.

After the Denver Diner incident, Nixon and Devine allegedly falsified reports and fabricated charges against the women -- and that's the rationale then-Manager of Safety Charles Garcia used to fire them. However, a three-member panel reviewing the matter on behalf of the Denver Civil Service Commission subsequently determined that the inaccuracies in their reports were not submitted with "an intent to deceive or hide the truth." As such, the officers were reinstated, with promises of back pay and benefits.

These goodies were put on hold when the city objected to the ruling -- an action that ultimately went forward despite Denver missing a deadline to file an appeal. Now, however, the commission has reportedly determined that even though Nixon and Devine did use excessive force in the incident, their actions warranted suspensions of three days and ten days, respectively, not firing.

Doug Friednash.

In contrast, the commission overruled the panel's reinstatement of officers David Torrez and Jose Palomares, who'd been told not to engage in a car chase but did anyhow, damaging their own vehicle in the process. But while this decision pleased Denver City Attorney Doug Friednash, it didn't make up for the move in regard to Nixon and Devine. Here's a statement he released after the decision.

Today, our office received two important decisions from the Civil Service Commission. We are pleased with the decision in Torrez and Palomares, but profoundly disappointed by the Nixon and Devine decision. The Torrez and Palomares decision by the hearing officers was illogical and justifiably reversed. In order to restore the public's confidence it is critical to send a message that the City will not tolerate police officers who lie during their investigations to cover up their misconduct and avoid discipline. The Nixon and Devine decision is deeply disturbing in that it recognizes the authority of hearing officers to ignore the thorough investigation conducted by the Police Department and the facts found by the Manager of Safety. The Commission is correct that the Denver City Charter prevents them from making independent findings of fact, but it is the Commission's own Rule 12 that gives overly broad authority to the hearing officers. The Commission should step forward in its rule-making capacity and change Rule 12. The Manager of Safety is entitled under the Charter to deference in his decision-making. The Commission has the power to make hearings a review of the Manager's decision instead of allowing the hearing officers to conduct an entirely new trial; a process that has resulted in inconsistent and incorrect outcomes.

Alex Martinez.

Manager of Safety Alex Martinez was similarly disturbed by the reinstatement of Nixon and Devine. Here's his statement:

I agree with the Civil Service Commission's decision in Torrez/Palomares to reverse the hearing officer's order to reinstate the officers. I also agree with the Commission's statement that administrative hearings "are not intended to be full-fledged trials." Yet that is precisely what Civil Service Commission hearings have become -- "full-fledged trials."

Because hearing officers hold "full-fledged trials," they can make different factual findings than the Manager of Safety, as they did in Nixon/Devine. Yet in cases where there is conflicting witness statements, it is not unlikely that two fact finders might reach different decisions. In Nixon/Devine, the Commission deferred to the hearing officers' fact finding, citing the Charter to show their hands are tied and they cannot make their own factual findings. But it is the Commission's process, guided by the Rule they made, that gives hearing officers the power to make a separate and independent decision instead of reviewing the Manager's decision for reasonableness. Had the hearing officers reviewed the Manager's decision, instead of making their own factual findings on disputed evidence, they would have affirmed the Manager's decision.

The fact that these recent decisions rested entirely on findings by contract hearing officers, ignored painstaking fact-finding in the Internal Affairs Investigation and by the Manager of Safety, and each took a year and a half after the Manager's orders, illustrate that the process created by the Commission in their rule-making authority is in desperate need of reform.

We've made a request for comment to Siddhartha Rathod, the attorney representing the four women suing the Denver Diner. When and if he gets back to us, we'll update this post.

Continue to learn more about the Denver Diner incident, including photos and the complete lawsuit.