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'Denver Diner' Case Nearing Completion: Chief Recommends Cops Keep Jobs

Written by Brian Maass

DENVER (CBS4) - Denver Police Chief Gerry Whitman is recommending two officers accused of excessive force and falsifying reports in a 2009 incident keep their jobs, in another case that was caught on videotape by a city camera.

Multiple police sources say after a hearing Tuesday, Chief Whitman recommended multi- week suspensions for Officer Ricky Nixon Sr. and Officer Kevin Devine. Devine has been a Denver Officer since 2006 and Nixon has been on the force for seven years.

Denver's Manager of Safety Charles Garcia has  15 days to either go along with Whitman's recommendation, reduce the penalties, or modify the discipline up to and including the possibility of termination.

Lt. Matt Murray, an aide to Chief Whitman, declined to discuss the Chief's disciplinary recommendation. 'He doesn't comment on the deliberative process and he just allows the process to play itself out', said Murray.

A previous CBS4 Investigation revealed the existence of a graphic videotape of the police response to a fracas outside the Denver Diner, 740 West Colfax Ave., in the early morning hours of  July 12,2009. A nearby HALO surveillance camera videotaped the clash between the two Denver officers and a group of women who had been involved in a fight. Multiple sources familiar with the tape say it shows the officers punching and using mace on a woman who is in handcuffs and on the ground. One source exposed to the tape termed it 'very strong'.  Two law enforcement sources who viewed the tape characterized the video as equally disturbing as HALO camera videotape that led to the recent firings of DPD Officers Devin Sparks and Cpl. Randy Murr. That tape, also from 2009, showed the officers  roughly handling Michael DeHerrera, as he stood on a sidewalk, speaking  on a cellphone in Lodo. The Denver Police Department intially recommended short suspensions for Sparks and Murr. But the release of the DeHerrera tape led to a public uproar and calls for the officers dismissal. Manager of Safety Garcia recently announced  he was firing both Sparks and Murr. The officers are appealing that ruling.  The city declined a previous CBS4 request to release the Denver Diner videotape saying it was part of an internal investigation.

An excessive force complaint was filed with Denver Police  over the Denver Diner incident. But sources say at multiple levels in the police department chain of command, the tape was viewed, statements reviewed, and the excessive force complaint was dismissed.

Sources say however that when Denver's Police Monitor, Richard Rosenthal, viewed the tape, he disagreed with police rulings that no excessive force was used and further found that police officers filed false reports about what happened. Rosenthal has declined to discuss either the Denver Diner videotape or the case itself. Reached by CBS4 Thursday, Rosenthal said,'Until the case is concluded and the Manager of Safety has made his decision, I am not permitted to make any comments on my recommendations relating to the case'.

Nick Rogers, President of the Denver Police Protective Association, told CBS4 Whitman has recommended a 30 day suspension for Officer Nixon and a 14 day suspension for Officer Devine over the Denver Diner incident. 'The facts do not support those suspensions. Whitman should be ashamed of himself', said Rogers.'He knows this case should not be sustained and he is playing politics with police officer's lives'. Rogers said he had viewed the Denver Diner videotape 'hundreds of times' and concluded the officers 'didn't do anything wrong. They did everything exactly right. There is no pretty way to arrest someone', said Rogers. The union president went on to say that a disciplinary review board, made up in part of civilians, had examined the videotape and the case and concluded that no charges should be sustained against the two officers.

Asked if he anticipated Denver's Manager of Safety would up the penalty and terminate Officers Nixon and Devine as happened in the Sparks and Murr case, Rogers said, 'I don't know. I hope the Manager of Safety looks at the facts of the case'.

With a final disciplinary ruling from the Manager of Safety due before the end of April, officials may be forced to release the Denver Diner videotape and the various internal police disciplinary recommendations that have occurred over the last two years.

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