DENVER - An independent hearing panel has ordered the reinstatement of two officers fired more than three years ago for failing to report a third officer for stomping a handcuffed 16-year-old boy lying on the ground.
In the ruling released Wednesday, the three-person hearing panel ordered the reinstatement of former officers Cameron Moerman and Luis Rivera with back pay dating to their June 2010 termination -- minus one month's pay for an initially proposed punishment.
The City Attorney plans to appeal the officers' reinstatement, according to the Denver Department of Safety.
In 2010, the manager of safety successfully fired Charles Porter, the veteran gang unit officer accused of stomping 16-year-old Juan Vasquez after he ran from police in 2008. A jury acquitted Porter of felony assault in 2009.
Denver agreed to pay the teen a $885,000 settlement in October 2008. The boy suffered a lacerated liver and a fractured kidney that required surgery.
The nearly six-year-old case has taken many twists and turns through the Denver Police Department's disciplinary system. The fate of Moerman and Rivera was further delayed while city officials waited for the outcome of Porter's criminal trial and by civil court rulings on the two officers' disciplinary process.
None of this would have happened if gang unit officer Cameron Moerman and his partner hadn't spotted the 16-year-old Vasquez holding a 40-ounce bottle of beer on the porch of a northwest Denver duplex on the night of April 18, 2008.
The officers were patrolling a known gang area and when the teen spotted police, he ran down an alley. Moerman ran after the boy while his partner radioed the entire Gang Unit for assistance, according to the hearing panel's report.
Moerman lost the teen, then saw the boy running toward him in the alley, and the chase was on again. Vasquez later admitted to emergency medical technicians that he was intoxicated and kept falling down and throwing up on himself during the pursuit.
The officer might not have caught Vasquez, but the teen fell while trying to climb the fence and hit the ground hard.
By the time officers Porter and Rivera reached the scene in the alley, they found Moerman straddling the boy on the ground and handcuffing him, the report said.
Moerman was breathing hard and Rivera asked the officer if he was okay.
Moerman and Rivera later said they were looking away from Vasquez when they heard the boy exhale sharply. They turned to see Porter holding onto a fence and stomping "for a few seconds" on Vasquez's back with both feet, the report said.
"Both Moerman and Rivera were completely surprised, stunned and perplexed by Porter's conduct," the hearing officers wrote.
"I didn't know what I was seeing," Moerman testified at a hearing. "I thought, you know, why is he [Porter] doing that, is [Vasquez] resisting? Did I miss something on the pat down?...I just didn't grasp what I was seeing at first."
The hearing panel's decision stressed that the two junior officers -- Rivera had been with the department for three years, Moerman for four years -- where wary of "ratting out" a fellow officer, especially a 13-year veteran like Porter, who'd spent most of his career on the Gang Unit.
It was Rivera's first night riding with Porter. But as they got back to their patrol car, the younger cop asked Porter to explain what he'd just witnessed.
"What was that?" Rivera asked.
"I don't know. It's just something I do lately. I like the way it makes them sound," Porter replied, according to the panel's report.
Later, Moerman and Rivera each made key mistakes. They omitted seeing Porter stomp the teen in their written reports about the incident, according to panel's report.
While patting down the prisoner, Moerman found two baggies of crack cocaine in Vasquez's pocket, the report said.
Vasquez, who smelled of alcohol, began throwing up at the scene, and said he couldn't breathe. Moerman called for an ambulance
Medical technicians on the scene reported the teen only had some scrapes on his elbows and head. One EMT wrote that his injuries were "mild."
The teen complained of back and abdominal pain, but he was able to walk to the ambulance without assistance, the report said.
It was only after he reached the hospital that tests showed he was bleeding from severe internal injuries.
The next day, Moerman learned from his partner that Vasquez was in the intensive care unit. Moerman later called a sergeant and vaguely said that two of the three officers present during the arrest had nothing to do with the boy's injuries, the report said.
Within 15 hours of the incident, police superiors identified Porter as the officer responsible for the boy's injuries, the hearing panel's ruling states. But the report doesn't reveal who identified Porter as the attacker.
After an internal affairs investigation, then-Police Chief Gerald Whitman in September 2009 recommended terminating Moerman and Rivera for violations of departmental rules, including failing in their duty to report, their duty to protect a prisoner, false reporting and departing from the truth.
But the chief recommended the officers' dismissal be suspended for two years and, instead said they should be suspended without pay for three months.
Under the City Charter, then-Manager of Safety Al LaCabe had 15 days to approve, modify or disapprove the chief's recommended punishment of the two officers.
In October 2009, LaCabe told the officers' defense attorneys he needed two additional weeks to investigate the case, the panel report said. The safety manager's reasons for needing more time, included:
--Given Porter's acquittal at trial, LaCabe said "one of [the officers] had to be committing perjury," because during their testimony at the trial, Porter, Moerman and Rivera were "all very good witnesses."
--Given Porter's acquittal, LaCabe said the Vasquez case was "still extremely important for the Police Department, an extremely important case for the community, and dealing with the perception of the department."
--LaCabe said the city's $855,000 settlement payment to Vasquez should be considered "part of the harm" caused by Moerman's and Rivera's actions.
LaCabe's additional investigation lasted nine months -- not two weeks.
On June 29, 2010 -- LaCabe's last day as safety manager -- he ordered the immediate firing of Moerman and Rivera. He found they had committed additional violations of the law, including several counts of assault and accessory to a crime. He also cited new departmental violations, including commission of a deceptive act and conduct prejudicial to the department.
In overturning the officers' termination, the hearing panel ruled that:
-LaCabe failed to prove that either officer used any force or inflicted injury on Vasquez.
--LaCabe failed to prove the officers were accessories to Porter's assault on the teen.
--As for the charge that they'd failed in their duty to protect a prisoner, "the Panel finds there was insufficient time for either Moerman or Rivera to [react to] protect Vasquez from Porter's stomping actions."
The hearing officers found that Moerman and River had violated department rules of Duty to Report, False Report and Department from the Truth.
The hearing panel, however, ruled on a technicality that the officers had not committed a "deceptive act." Under new disciplinary rules adopted in October 2008, an officer omitting information from reports would have committed a deceptive act -- a fireable offense.
But all Moerman's and Rivera's reports omitting Porter's stomping of the teen were completed before the tougher rules took effect. The panel also found that LaCabe violated the City Charter by failing to act on the investigation in a timely manner.
The hearing panel reviews employee appeals to the Denver Civil Service Commission, but their decisions are independent of the commission. Now the city will appeal the reinstatement of Moerman and Rivera to the full commission.