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Hearing officer overturns discipline of Denver cops in separate alleged excessive force cases

For the second time in less than a month, an appeal hearing officer has overturned the discipline of a Denver police officer captured on video using what the city alleged was excessive force.

On Tuesday, the appeal hearing officer, Terry Tomsick, overturned the city’s 30-day suspension of Officer Choice Johnson, who was disciplined by the deputy manager of safety for shoving down a man, who was standing with his hands in his pockets, during a dispute outside a LoDo bar in July 2014.

The man, 29-year-old Brandon Schreiber, told 7NEWS that Officer Johnson damaged both his shoulders when he placed an arm-lock on Schreiber’s arms, which were handcuffed behind his back, then lifted him up and spun him around.

“He was pulling my arm to the back of my head, and that’s when I felt that tearing type of pain,” said Schreiber. “His actions are being neglected and overlooked. I just want him to accept what he did was inappropriate and move on from this.”

All this was captured on a city-owned surveillance camera. (The officer’s shove occurs at 4:23 in the video. Johnson begins spinning the handcuffed man at 6:15).

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On July 30, Tomsick overturned the city’s firing of Officer James Medina, who was shown on surveillance video placing his knee on the neck of an arrested woman, who then collapsed in a holding cell.

Siddhartha Rathod, the attorney for Schreiber, accused Tomsick of being biased in favor of police.

“This is the same hearing officer who ruled that Officer Medina’s conduct was within conformity of the Denver Police Department (rules). So it’s just a bias,” said Rathod, whose law firm has won several high-profile excessive-force cases against Denver law enforcement agencies.

He said the Denver Civil Service Commission “is a corrupt system. It’s a system that’s designed to keep… bad police officers.”

“On the rare occasion that Denver does discipline a police officer, or terminate a police officer, the Civil Service Commission pretty much every single time, reverses that decision,” Rathod said.

Commission Executive Director Earl Peterson rejected Rathod’s assessment.

“He’s absolutely wrong,” Peterson said. “[When] people look at the initial outcome from a hearing and draw a conclusion that the system is corrupt, I have a real problem with that.”

“We’re not here to protect bad officers. But we’re certainly here to make sure that good officers are treated appropriately,” Peterson said.

The appeal process for officers who have been disciplined is multi-layered.

The officer’s initially appeal is heard by a single hearing officer — or administrative judge. If either the city or the police officer is unhappy with the hearing officer’s ruling, they can appeal it to the full five-member Civil Service Commission.

The Denver Department of Public Safety, which oversees discipline for police, sheriff and fire department employees, issued this statement Tuesday:

“Based on the evidence and the policies and procedures violated, the 30-day suspension issued to Officer Johnson was appropriate. We disagree with the hearing officer’s interpretation of the policy and legal authority involved and will ask the city attorney’s office to appeal the decision to the full Civil Service Commission.”

The city is also appealing the hearing officer Tomsick’s reinstatement of Officer Medina, who is accused of using excessive force on the female prisoner in a holding cell — to the full commission.

7NEWS requested comment from hearing officer Terry Tomsick, but has not received a reply.

Officer Johnson was punished for an incident the occurred outside the 1UP Bar, located at 1925 Blake St., on the night of July 26, 2014.

Brandon Schreiber was celebrating his brother’s bachelor party with other family members and friends at the bar.

At about 11:30 p.m., the groom-to-be was sleeping at the bar after drinking too much, according to a disciplinary order issued against Officer Johnson. He had a glass of water next to him.

Two bouncers decided to escort the brother, Matthew Schreiber, out of the bar. When one bouncer told him to finish his water quickly as they neared the exit, the brother protested, records stated.

Officer Johnson intervened and took the brother outside. Tomsick’s ruling said Johnson offered Matthew Schreiber the chance to take a cab home. But the brother said he was from out of town and he wanted to go back into the bar and find his party.

Johnson told him he could use his cell phone to reach his companions. When Officer Johnson caught the brother trying to go back into the bar, he handcuffed the man and told him he would be transported to a detox center.

Meanwhile, Brandon Schreiber came out of the bar and tried to persuade Johnson to release his brother. Schreiber, who later filed a complaint against the officer, told internal affairs investigators “he felt that he had to stand up for this brother and wasn’t going to let his brother, who never gets in trouble, go to detox on the night of his bachelor party,” records state.

Schreiber said Johnson was “rude” to him and would not discuss the matter. Schreiber also acknowledged that he, too, had several drinks that night and cursed the officer, the disciplinary report states.

Officer Johnson told investigators that Brandon Schreiber repeatedly cursed him. Johnson said Schreiber told his handcuffed brother, “Let’s just run” away from the officer.

Johnson said Brandon Schreiber was intoxicated, but he repeatedly told him he should leave and allow his brother to be transported to detox. The officer said Schreiber kept escalating the confrontation, and Johnson decided he, too, needed to be handcuffed and taken to detox.

Johnson claimed that Schreiber resisted being handcuffed and, took a fighting posture, “pushed his chest out in a defensive manner” and told Johnson “don’t f—ing touch me,” records state.

Johnson said that, sensing “this is going to be a fight,” he decided to use “Krav Maga, an acceptable form of arrest control technique taught by the Denver police,” Tomsick wrote in her ruling.

The officer said he thrust his hands at Brandon Schreiber’s chest, knocking him off balance and then handcuffed him.

Yet, Deputy Manager of Safety Jess Vigil wrote in his order disciplining Johnson that surveillance video “does not support Officer Johnson’s claim that the complainant ‘pushed his chest out in a defensive manner.'”

Instead, it shows Johnson aggressively rushing at Schreiber, who is “simply standing there with his hands in his pockets,” and shoving him in the chest, knocking the man backward down some concrete steps.

“[Schreiber] makes no threatening gestures or movements toward Officer Johnson … The video does not support Officer Johnson’s claim that (Schreiber) ‘pushed his chest out in a defensive manner,'” the disciplinary order states.

Johnson admitted to investigators that “[I] thrust him too hard so he went to the ground…I didn’t anticipate the thrust, him going flying,” the report stated.

In ordering a 30-day suspension without pay, Vigil wrote that Officer Johnson “used inappropriate force and violated departmental policies when he aggressively shoved the complainant to the ground at a time when the complainant was posing no credible threat to officer safety and was not engaged in any action that indicated he was an escape risk.” Vigil added that Johnson’s shove “was more likely than not an impatient, if not angry, response to the [Schreiber’s] offensive behavior, and not a reasonable and appropriate use of force.”

Yet, appeal hearing officer Tomsick lauded Johnson’s handling of the confrontation.

“Officer Johnson executed this move perfectly,” and Schreiber landed “on his rump” on the stairs, Tomsick wrote in her ruling.

“Although taken out of context, the move looks abrupt and surprising, there was zero evidence that Officer Johnson utilized the Krav Maga maneuver because he was ‘impatient’ or ‘angry,'” Tomsick added. “The fact that it looks violent on a 20 second piece of non-audio video does not render this technique excessive or unnecessary force.”

The hearing officer said that Officer Johnson used “minimal force.” “[Schreiber] suffered some minor abrasions to his left elbow as a result of his resisting arrest and [he] refused medical attention” at the scene, Tomsick added.

However, Chief Deputy District Attorney Doug Jackson, who declined to file criminal charges against Officer Johnson for assault on Schreiber, still questioned the officer’s use of force.

Jackson noted that the video “makes the push itself appear to be unnecessary and unjustified,” Tomsick wrote in her ruling.

The hearing officer wrote that there was no evidence supporting Schreiber’s complaint that Officer Johnson had “beaten” and “choked” him.

Authorities don’t appear to have watched the later part of surveillance video, where Officer Johnson places an arm-lock on Schreiber’s arms, handcuffed behind his back, and begins to wrench the man — who shows no sign of resisting — and twists him around until he collapses on the ground.

Schreiber’s cousin holds out his hand, appearing to urge the officer to stop.

Schreiber’s attorney, Siddhartha Rathod, said the civil service hearing system too often overturns disciplinary action by the police department against its officers.

“[Officer] Johnson has 18 prior complaints of excessive force. What does that tell you?” Rathod said. “These are bad, bad officers. And, you know what, the good officers in Denver don’t want this to happen.”

Indeed, 7NEWS found Officer Johnson has a history of complaints where citizens accuse him of using excessive force while he’s working security off-duty but in uniform at Denver nightclubs. The officer has been disciplined at least twice for using force against people and failing to report it to his supervisors.

“What this really does is allow bad officers to stay on the force,” Rathod said. “And it shows other Denver officers, ‘You know what, Officer Johnson did this and he didn’t get in trouble. So, I can act this way.'”

“It’s why Denver has such a problem with police officer brutality,” the attorney added. “Even when it’s on video, time and time again, [appeal hearing officers] disregard the video.”

Johnson has already served the 30-day suspension without pay, but Tomsick ruled that he should be repaid for the month off — including interest.

“Basically, this is a 30-day taxpayer paid vacation,” Rathod said.

Given the city’s appeal to the full commission, Johnson won’t likely see any of that money until the next appeal is decided.

Ultimately, it appears the dispute is headed for court.

Rathod said he plans to sue the city on Schreiber’s behalf for Officer Johnson’s conduct outside the club.

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