Denver Diner case's $360K settlement exposes culture of police brutality, attorney says

Last night, the Denver City Council approved a $360,000 settlement over a 2009 incident at the Denver Diner, during which four women were billy-clubbed and maced by Officers Ricky Nixon and Kevin Devine, both of whom are still members of the department. Attorney Siddhartha Rathod, who has represented the victims throughout the case, doesn't trumpet this payment as a victory. Rather, he uses it as an opportunity to decry police brutality in the city and wonders whether anything will be done to end it once and for all.

According to Rathod, corresponding by e-mail, "The Denver Diner case has exposed Denver's culture of police brutality and willingness to cover it up."

As we've reported (see our previous coverage below), Kelly Boren, Sharelle Thomas, Ana Ortega and Kristal Carrillo were at the restaurant in 2009 when they say Denver police officers Ricky Nixon and Kevin Devine menaced them with nightsticks, pulled or shoved a number of them to the ground and sprayed them with mace despite no compelling evidence of actual wrongdoing. This contention is illustrated later in this post by a video and a series of photos showing Nixon and Devine in action.

Devine and Nixon were fired in 2011 for their actions at the Diner, only to be reinstated and given permission to hit the streets again by the Denver Civil Service Commission.

The victims' lawsuit had been wending its way through the system for several years when, in February, a judge ruled that the City of Denver could be put on trial for police brutality. This prospect significantly enhanced the odds of a settlement, which came down last night. Both Ortega and Boren will reportedly receive just over $44,000, with approximately $43,000 going to Carrillo, $34,000 to Thomas and $193,000 for legal fees.

When quizzed about the agreement, Rathod focuses not on the cash, but on the continued employment of Nixon and Devine. "Denver has repeatedly demonstrated that it cannot get rid of officers who are determined to be 'bullies and liars,'" he notes. This last phrase is in single quotes for a reason: It's shared in a document submitted to the Civil Service Commission by the Denver City Attorney's Office, which argued against the officers' reinstatement. We've included the filing below, but here's a biting excerpt, featuring a section highlighted by Rathod:

Of paramount concern to the Respondent is the risk to public safety that these officers pose if they are returned to duty. The safety of Denver's citizens rests squarely in the hands of Denver's police officers. Every officer in the Denver Police Department has been entrusted with the tremendous power and authority to make arrests and to physical or even deadly force to enforce the law and protect citizens from those who would do them harm. The responsibility that comes with wearing a police uniform and carrying a badge and gun cannot be underestimated, nor should it be taken lightly. Public safety is intrinsically tied to honest and responsible law enforcement. The video of this incident alone shows that Petitioners are bullies and liars who will not hesitate to punch a restrained female in the face (a violation affirmed by the Hearing Officer Panel); shove innocent female bystanders to the ground; indiscriminately push through a group of bystanders with a baton, mouth too occupied with a large cigar to give verbal orders; directly apply pepper spray to the face of a restrained female; pepper spray a group of retreating bystanders, unjustifiably place an injured and innocent bystander under arrest, and forcibly shove handcuffed females to the ground, yet report only a fraction of those actions. To force the City to put a badge and gun back in those officers' hands before this appeal process is complete would significantly compromise public safety and undermine the public's faith in the Denver Police Department and its many excellent police officers.

As you'll recall, Officer Nixon was also involved in the bloody beating of college student Alex Landau, which resulted in a $795,000 settlement to which Rathod alludes.

"Between the Alexander Landau and the Denver Diner incidents, the City and County of Denver has paid nearly $1.2 million to settle acts of brutality committed by Denver Police Officer Ricky Nixon," he points out. "Yet both Officer Nixon and Officer Devine remain on the force."

"The Denver Diner case has exposed Denver's culture of police brutality and willingness to cover it up," he adds. "Hopefully as the cost of keeping bad officers on the force rises, Denver will begin to take steps to fix its problems rather than continuing to throw money at a problem and keeping business as usual."

Here's the aforementioned City of Denver document, followed by our previous coverage.

Denver Diner Case Exhibit 7

Continue to see our previous coverage of the Denver Diner case, including photos, a video and original documents. Update, 11:55 a.m. February 8: A huge ruling in the lawsuit related to the 2009 billy-clubbing and macing incident at the Denver Diner. U.S. District Court Judge William Martinez has determined that the City of Denver can be put on trial for allegedly fostering a culture that tolerates police brutality and abuse. Reaction from an attorney representing the four women who were roughed up, the judge's order and lots of previous coverage is on view below.

As is detailed in the original lawsuit, also included here as part of our previous reporting, Kelly Boren, Sharelle Thomas, Ana Ortega and Kristal Carrillo were at the restaurant in 2009 when they say Denver police officers Ricky Nixon and Kevin Devine menaced them with nightsticks, pulled or shoved a number of them to the ground and sprayed them with mace despite no compelling evidence of actual wrongdoing. This contention is illustrated later in this post by a series of photos showing Nixon and Devine in action.

Devine and Nixon were fired in 2011 for their actions at the Diner, only to be reinstated and received permission to hit the streets again by the Denver Civil Service Commission.

You'll recall that Nixon was also involved in the bloody beating of college student Alex Landau, which resulted in a $795,000 settlement. Not that the Landau case has concluded: It's currently the subject of a federal inquiry.

Attorney Siddhartha Rathod, attorney for the women suing over the Denver Diner matter, was livid after Nixon and Devine were given the go-ahead to begin patrolling again, providing us with a statement that read, "The four women who were assaulted and brutalized by Denver Police officers Ricky Nixon and Kevin Devin in front of the Denver Diner are disappointed, but not surprised, by the latest decision by the Civil Service Commission to serve and protect their own. The Denver Police department has a long standing culture of failing to discipline officers who engage in rampant constitutional violations, sending clear messages to the entire department that police brutality and dishonesty are tolerated."

These assertions are at the heart of the lawsuit naming the City of Denver, as well as Nixon and Devine, and it was bolstered by eight years of brutality complaints ordered released by Judge John Kane as part of a separate excessive-force accusation involving James Moore, who nearly died after allegedly being punched, kicked and sapped by officers.

This material obviously had an impact on Judge Martinez. He didn't lower every possible boom; as noted by the Denver Post, he'd previously tossed out several claims, including ones related to racial discrimination, destruction of evidence, malicious prosecution and First Amendment retaliation. But in the end, Rathod maintains via e-mail, "Judge Martinez ruled that the four women assaulted in front of the Denver Diner have demonstrated that DPD has systemically and historically ingrained patterns of unchecked civil rights violations."

Continue for more about the Denver Diner ruling, plus photos, videos and more. The ruling isn't a finding of fault. Rather, it simply allows the attorneys to make such charges against the city in a formal court setting. Rathod sees the following passage as key:

In this case, Officers Nixon and Devine both testified that the degree of force used in this incident was in accordance with their training. Their supervisor also testified that the officers acted appropriately and within their training. Nixon testified that the Chief (of Denver Police) told him that he did nothing wrong in this case but that it 'looked bad on video.' Additionally, Denver's former safety manager, Charlie Garcia, testified that he believed Denver's police officers had used 'heavy-handed tactics' since 1993 and that these tactics were a result of the City's training policy. This evidence could permit a reasonable juror to find that Denver's training program failed to appropriately teach its officers how to conduct themselves when stopping an altercation and/or managing a crowd.

Three more damning excerpts:

Denver's former independent monitor, Richard Rosenthal, testified that Denver had a 'systemic problem' of officers not being held accountable for their uses of force. Rosenthal recounted 'a number of cases' that gave him 'great concern' about whether officers were properly being held accountable for their actions. The Court finds that this evidence is sufficient to allow a reasonable juror to find that Denver's failure to adequately investigate citizen's excessive force complaints and to discipline officers implicated therein was so widespread as to constitute a custom....

In this case, a number of officers observed the use of force by Nixon and Devine but none completed reports on such force or came forward with information regarding the incident until they were questioned by IAB during its investigation. Based on this and other evidence in the record, a reasonable juror could find that Denver has a custom of tacitly approving of, or at the very least of acquiescing to, a pattern of conduct within the Department whereby police officers routinely fail to report either their own or other officer's uses of force....

The Court notes that there is evidence in the record to support municipal liability for Plaintiffs Ortega, Boren, and Thomas's false arrest/unlawful seizure claims. (Former Manger of Safety Charles) Garcia testified that Denver has an unwritten policy of bringing charges against any individual against whom any force is used. Garcia testified that this officers were trained to bring charges such as resisting arrest or interference to 'cover' for the use of force....

In Rathod's opinion, "this case is tremendously important because for nearly a decade, the customs and practices of the Denver Police Department have made it virtually impossible to effectively discipline violent and dishonest officers."

Here's Martinez's order, followed by our previous coverage, including the lawsuit, video and numerous photos from the incident itself.

Denver Diner Case Order on Motion for Summary Judgment

Continue to learn more about the Denver Diner incident, including photos and the complete lawsuit. Original post, 11:09 a.m. September 20, 2011: In April, Denver cops Ricky Nixon and Kevin Devine were fired in relation to a billy-clubbing and macing incident that took place in 2009.

Now, the four victims in that case have filed lawsuits against the City and County of Denver, charging that as much damage was done to them by bureaucracy as by the officers in question.

"The officers being fired is a start, but only a start," says attorney Siddhartha Rathod, who is representing victims Kelly Boren, Sharelle Thomas, Ana Ortega and Kristal Carrillo in conjunction with fellow lawyer Qusair Mohamedbhai. "These women were brutalized by Officer Nixon and Officer Devine, but the City of Denver then participated in the malicious prosecution of these women. And this isn't an isolated incident. The Denver Police Department has a culture of allowing its officers to brutalize people, of allowing its officers to lie and cover up."

The suits filed in the names of Boron, Thomas, Ortega and Carrillo include frame-by-frame breakdowns of a HALO video of the incident; they're included below, along with a copy of Boren's complaint. But here's how Rathod summarizes the incident.

"On July 12, 2009, Officer Nixon was working in an off-duty capacity at the Denver Diner -- and he was in uniform," he says. A short time earlier, "Kristal had been a victim of an assault in the restroom. She was attacked by an unknown party and was defending herself when Officer Nixon grabbed her, dragged her outside, arrested her and handcuffed her. In the video, Ana comes outside -- she'd been in the bathroom with Kristal, and she can be seen telling Officer Nixon, 'She didn't do anything wrong.' But he's basically not listening to her, so she walks a little bit away.

"Just at that time, Sharelle and Kelly arrive. Sharelle had just graduated from Colorado Christian Academy, and they arrived via pedicab. They're walking straight to the door when Officer Devine, who's smoking a big cigar, can be seen coming in from the right side of the video and pushes Sharelle. She stumbles forward, and when she stands back up, she says something to the effect of 'You can't treat me that way,' which any citizen should be able to say to an officer or anyone else in that situation."

At that point, Rathod goes on, "Officer Devine pulls out his nightstick and starts waving it in Sharelle's face. He then grabs her by the arm and starts pulling her toward where Kristal is on the ground in handcuffs. He's about to strike Sharelle with his nightstick, but stops inches away. Kelly then steps in between Sharelle and Officer Devine, to stop him from striking her in the face -- and Officer Devine grabs Kelly by the neck and throws her. And he's a big guy, She goes completely off the ground. And then he grabs Sharelle and yanks her onto the ground, and Officer Nixon pins her down.

"Ana sees all this, and she's saying, 'What are you doing?' when Officer Devine, still smoking the cigar, grabs her and throws her down to her knees. Then he takes her arm behind her back and puts his nightstick into her shoulder -- and right as he's about to assault her, Officer Nixon pulls out his mace and sprays it maybe two inches from her face before taking a couple steps to the left and macing Sharelle and Kelly."

Ortega was subsequently handcuffed, as was Thomas -- and Rathod points out that assorted officers on the scene offered no help to the maced women even as they treated their own eyes with saline solution. Amid this scene, "Anna, who had been on her knees, stands up and asks for help, and Officer Nixon grabs her by the throat with both of his hands and slams her to the ground. Kristal then tried to help her, and Officer Nixon slams his fist full-force into her face."

As Rathod points out, none of the women had done anything wrong -- and Carrillo was actually a victim of an attack before the officers took charge. Nonetheless, only Thomas was released, while the other three were charged with assorted infractions because "Officer Nixon and Officer Devine falsified police reports and fabricated charges," he maintains.

The HALO video of the incident was never produced during the criminal cases against Carrillo, Ortega and Boren. They didn't know of its existence until officers Nixon and Devine were fired earlier this year. After their sacking, Westword confirmed that Nixon had also been involved in the beating of Alexander Landau. The incident led to a settlement with Landau for $795,000.

Lacking this information, Carrillo, Ortega and Boren pleaded to a deferred judgment -- one that would eventually wipe the incident from their records. But Rathod says they would never have done so had the City of Denver provided the video and other exculpatory evidence, which would have given them the tools to prove that they'd done nothing wrong and the officers had lied.

Thomas suffered in a different way. She was hospitalized after the Denver Diner incident, and what Rathod calls "foreign debris" was removed from her eye. A year later, she had to undergo eye surgery.

The lawsuits against Denver and the officers were originally filed in state court this past July -- "but recently, the City of Denver and the police officers removed the case to federal court," Rathod allows. "We think it's ironic that the City of Denver doesn't want a Denver jury to decide what happens to the Denver Police Department." The four cases remain separate, but he expects them to be consolidated in the future.

In addition, Carrillo, Ortega and Boren "are trying to go back and withdraw their original guilty plea," he says. "That's not going to affect their civil case, but it's a matter of principle, a matter of right and wrong. What happened to these women, from the assault to the prosecution, was wrong -- anybody who takes the time to listen to the story of these women can see that. And I think, clearly, the citizens of Denver have seen that.

"These four women were brutally assaulted and maced by officers Nixon and Devine. They were then wrongfully prosecuted by the City and County of Denver. And absent people with the courage of these four women to step forward and say, 'This conduct is wrong,' this kind of thing is going to keep happening."

Look below to see a CBS4 report featuring excerpts from the HALO video, a frame-by-frame breakdown featuring text from one of the suits, and the Boren complaint.

Ms. Ortega (far left) is wearing a salmon/pink colored skirt with a white blouse; Officer Nixon (third from left) is a uniformed Denver Police Officer and Caucasian male with a shaved head who is wearing black gloves; Ms. Pena (far right) is wearing a red dress and has brown hair; Ms. Carrillo (on ground) is wearing jeans and a black t-shirt with a light red pattern in the front, currently handcuffed and seated with her head pressed forward; and an unknown Caucasian male (second from left) wearing a gray shirt and black pants is an employee from the Denver Diner. Ms. Vidal (top right) is wearing a white top and a black skirt; Ms. Ortega (bottom right); Officer Nixon (second from left); Ms. Pena (middle); Ms. Carrillo (on ground); unknown Denver Diner male (far left); and Ms. Boren and Ms. Thomas (far right) are currently not visible as they are behind the bicycle and tree. Officer Devine (top middle) is a uniformed Denver Police Officer with brown hair, holding a baton in his right hand; Ms. Boren and Ms. Thomas (far right) are currently obstructed as they are behind the bicycle and tree, although Ms. Thomas' arm can be seen coming into the picture from behind the tree; Ms. Ortega (bottom middle); Officer Nixon (top left); Ms. Pena (bottom right); unknown Denver Diner male (far left); Ms. Carrillo (on ground); and Ms. Vidal (top right). Ms. Boren (far right) is a Caucasian female, standing next to the bicycle taxi, with blond hair wearing a red dress and white blouse. Ms. Thomas (far right) is African-American, standing to the right of Ms. Boren. Both women are facing Officer Devine (middle), who is grabbing and pulling on Ms. Thomas' right arm. In Image 4, Officer Devine can be seen smoking a large cigar. Ms. Boren is pushed by Officer Devine and thrown backwards onto the ground. Fransisco Macias and Jay Spencer (top right) and other males are seen as well. Ms. Thomas is on the ground at the feet of Officer Nixon after being thrown down by Officer Devine. Ms. Thomas is unable to get up at this point. Officer Devine took his cigar out of his mouth and threw it to the ground. He then lunged towards Ms. Ortega and with his baton and shoved her backwards. Officer Devine then grabbed Ms. Ortega's left arm, partially spun her, and pulled her towards him. Ms. Ortega fell to her knees, and Officer Devine placed Ms. Ortega's left arm behind her back, and in a wrist lock. While holding Ms. Ortega's arm behind her back, Officer Devine forcibly placed his baton in between Ms. Ortega's neck and shoulder blade. Ms. Ortega was subdued, and at no time was she resisting arrest or combating Officer Devine. Ms. Ortega suffered bruising to her chest due to Officer Devine's violence against her. Officer Nixon approached Ms. Ortega while she was on her knees, restrained by Officer Devine. At point blank range, Officer Nixon pepper sprayed Ms. Ortega in the face and eyes. Ms. Ortega was immediately overcome with extreme and severe pain. Ms. Ortega screamed out, asking why she had been pepper sprayed. Officer Nixon is pepper spraying Ms. Thomas (Image 16), and then approaching closer and pepper spraying Ms. Boren (Image 17). Ms. Pena (middle) wearing the red dress is pleading with Officer Devine to not hurt Ms. Ortega.

Kelly Boren vs. The City and County of Denver

More from our Follow That Story archive: "Denver Diner: Attorney, witness of brutality incident decry accused cops' back-to-work order."