DENVER - One of two Denver police officers fired for allegedly lying about the videotaped beating of a man outside a LoDo nightclub in 2009 was reinstated with the department, while the other officer's termination was upheld by a Civil Service hearing panel.
The three-member panel ordered the reinstatement of Cpl. Randy Murr with back pay, seniority and other benefits.
The hearing officers upheld the firing of former officer Devin Sparks for lying about the same incident. The panel also upheld the Manager of Safety's discipline of Sparks for using inappropriate force during the arrest of Michael DeHerrera.
Shawn Johnson, a man arrested with DeHerrera who was also the victim of excessive force in the case, said he did not know about the reinstatement until 7NEWS reporters told him about it Wednesday. Johnson said he was outraged by the reinstatement and by the amount of time that it has taken to deal with the officers.
“A victim shouldn’t keep getting victimized year after year, decision after decision,” Johnson said. "These officers actually violated the law, and they should be held accountable in the same way that any citizen would be held accountable."
But the officer’s attorney, Sean T. Olsen, said the officers are the victims.
“It’s disappointing that two individuals like Shawn Johnson and Michael DeHerrera can go downtown and get extraordinarily intoxicated, assault a police officer and then have the ability to create this sort of situation which puts good, hard working police officers in this situation and forces them to lose their job in the process,” Olsen said.
Public outraged by videotaped arrest
The heavy-handed arrest of DeHerrera on the night of April 4, 2009, captured on a police street surveillance camera, sparked public outrage as the department initially wavered on whether to fire the officers or simply suspend them.
During a nearly four-year disciplinary process involving three different safety managers, Sparks and Murr were fired, then reinstated and then fired again.
Murr may -- or may not -- reclaim his badge.
Denver City Attorney Douglas Friednash said Wednesday the city will appeal Murr's reinstatement to the Civil Service Commission.
"While the City Attorney's Office is pleased that the hearing officer panel upheld the dismissal of Officer Devin Sparks for commission of a deceptive act and his lengthy suspension for unnecessary force, we are profoundly disappointed with the panel’s decision to reverse the dismissal of Corporal Randy Murr," Friednash said in a statement.
"The evidence provided at the hearing regarding Corporal Murr’s deceptive statements and reports was compelling. In fact, the panel found that Corporal Murr falsely reported seeing Michael DeHerrera take a swing at Officer Sparks, yet reinstated him to the police department. An appeal of that aspect of the decision will be filed," the city attorney added.
7NEWS broke story, aired videotape
7NEWS broke the story in 2010 and was the first to air the videotape of the beating.
A police video of the incident shows DeHerrera standing on a corner, talking on a cellphone for some time while police arrest his friend, Shawn Johnson. It was later revealed that DeHerrera was talking on the phone with his father, a deputy with Pueblo County Sheriff's Office.
The tape then shows Sparks grab DeHerrera and slam him to the ground. But the video camera, which is controlled by police at a surveillance command center, pans away as officers subdue DeHerrera. After the camera pulls to a wide shot, officers could be seen hitting DeHerrera, but it is impossible to tell if DeHerrera was struggling.
The video zooms back in as police lead the bloodied suspects to a police car. Photographs in the case showed injuries to DeHerrera's face.
A variety of charges against Johnson and DeHerrera, including assault and resisting arrest, were dropped.
The city settled with both men, paying DeHerrera $17,500 and paying Johnson $15,500,
The police chief at the time, Gerald Whitman, recommended on March 15, 2010, that Sparks be fired and Murr be suspended for three days.
In July 2010, then Manager of Safety Ronald Perea suspended Sparks for 24 hours and Murr for three days.
One month later, Denver's Office of the Independent Monitor recommended that both Sparks and Murr be fired for lying in the investigation and using excessive force.
In March 2011, Sparks and Murr were fired by then-Manager of Safety Charles Garcia as a result of "their deceptive acts."
Under department regulations, committing a deceptive act is the worst falsehood an officer can make. Agency rules say "officers shall not willfully, intentionally, or knowingly commit a materially deceptive act," especially to influence the outcome of an internal investigation of misconduct.
Hearing panel reverses Murr's firing
The Civil Service hearing panel agreed that Sparks repeatedly lied about his use of force and his descriptions of how DeHerrera attempted to attack him and Murr. The surveillance video clearly showed where Sparks' statements and his written reports contradicted what really happened during the arrest, the ruling stated.
The hearing panel also said "it is undisputed that Murr made a false statement in his initial report and interview, claiming that DeHerrera attempted to hit Sparks." The hearing officers wrote that the department could have charged Murr with the lesser offense of making "misleading or inaccurate statements that are made without premeditation or any intent to influence the outcome of an official investigation."
But the Manager of Safety only charged Murr with the most serious charge, committing a deceptive act, a firing offense.
The hearing officers said Murr, who was not accused of excessive force, was busy arresting the other man Shawn Johnson when Sparks threw DeHerrera to the ground.
The panel said Murr was in a "bystander" to what happened between Sparks and DeHerrera.
"With regard to whether Murr saw DeHerrera attempt to hit Sparks, Murr was actually not directly involved and testified that he lacked sufficient perception of the events," the panel ruled. "In addition, (Murr's) false statement was a singular false statement that he retracted once he saw the HALO video and based it on an improper misperception of the events."
So, the panel ruled that Murr's violation didn't rise to an intentionally deceptive act and, therefore, didn't warrant termination.
Olsen said he believes Murr and Sparks are getting a raw deal because decisions were made by the then police chief and safety manager and then rescinded.
"They changed their minds for political reasons and no others," said Olsen.
Murr had other allegations of misconduct
The LoDo incident isn't the only police misconduct accusation Murr has faced.
Murr and two other officers were accused of brutally beating a 19-year-old motorist in January 2009 after the man was stopped for making an improper turn.
Alexander Landau sued the city in 2011, saying the officers beat him bloody and called him racial slurs after he questioned their authority to search the trunk of his car. Photos taken of Landau at the hospital show the man in a neck brace with his face covered with blood and his eyes swollen shut.
The city settled the federal lawsuit by paying Landau a $795,000 settlement in 2011. The Justice Department investigated the beating, but decided not to charge any of the officers with civil-rights violations stemming from the case, Landau said.