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Letters

MICHELE A. PARISH, ACTING EXECUTIVE DIRECTOR
MARK SILVERSTEIN, LEGAL DIRECTOR

December 22, 1997

David Michaud, Chief of Police
Denver Police Department
1331 Cherokee Street, Room 402
Denver, CO 80204

Re: Citizen Complaint and Request for Meeting

Dear Chief Michaud:

I am writing to you regarding Robert Murphy, who died after Denver police officers took him into custody on October 31, 1997. I write on behalf of Mr. Murphy’s wife, Jacquelyne Murphy; his brother, Larry Murphy; and his sister-in-law, Joy Murphy.

Please regard this letter as the initiation of your citizen complaint process with regard to the conduct of the officers who were responsible for Mr. Murphy’s arrest, custody, and care on the night of October 31.

I understand that by filing this complaint, the members of Mr. Murphy’s family will, at a minimum, ensure that you will communicate the results of your investigation to them. I am aware that some internal investigation has already occurred, but the results have not been disclosed either to the public or to Mr. Murphy’s family. I also ask that you meet with me in person to discuss the questions and issues raised in this complaint.

Although the district attorney announced on December 17 that no criminal charges would be filed in connection with this case, that decision has absolutely no relevance to the decision the Murphy family now asks you to make: whether the acts or omissions of any police officers should result in administrative discipline for violation of the rules and regulations of the police department.

According to the one-page report of the incident that police released on October 31, officers contacted Mr. Murphy while he was sitting in his truck. He refused to cooperate and would not leave his vehicle. The report continues:

The officers observed that the occupant was attempting to orally induce what appeared to be a narcotic substance and was in the process of swallowing the contraband. The officers opened the door to the vehicle and extracted the party, who began resisting by swinging his fists and kicking at the officers. While attempting to restrain the suspect, a chemical agent (pepper spray) was used by one officer which had little effect. The officer then used his sap by striking the suspect in the arms while other officers overpowered and handcuffed him. Once the suspect was restrained, the officers attempted to clear his throat and airway by removing several cellophane baggies and a plastic prescription bottle from his oral cavity. After clearing the airway, the officers discovered that the suspect was not breathing and they began CPR and called for paramedics.

The first question is whether Mr. Murphy was subjected to excessive force. Although the police report says Mr. Murphy was struck in the arms, two independent witnesses report that a police officer struck Mr. Murphy numerous times in the head. The autopsy found at least six bruises on Mr. Murphy’s head. Although we know from the autopsy that these blows to the head were not the cause of Mr. Murphy’s death, they are nevertheless serious cause for concern and potential grounds for discipline of the officer or officers responsible.

This is not merely a complaint about excessive force, however. After Mr. Murphy was subdued, witnesses report that the officers left him face down on the asphalt with his hands cuffed behind his back. During this period of time, Mr. Murphy’s air passage was apparently blocked by material that officers observed him putting into his mouth before the struggle began. As I understand the accounts of the independent witnesses, it was only after Mr. Murphy had been left in this face-down position for some period of time that the officers began attempting to deal with Mr. Murphy’s blocked air passage.

How long did Mr. Murphy lie there on the pavement before the officers began to clear his throat? How long was Mr. Murphy lying there before the officers discovered that he was not breathing? How much time passed before they called the ambulance? How long did it take for the ambulance to arrive?

In this case, the officers saw Mr. Murphy place suspected narcotics in his mouth just before the struggle began. Any delay in attempting to extract the material was fraught with risk to the suspect’s health, not only because the air passage could be obstructed but also because of the potential effects of the substances themselves.

Indeed, the autopsy report suggests that Mr. Murphy’s blood contained levels of cocaine far higher than would ordinarily be found in the blood of a "normal" user. That raises the question whether these abnormally high levels of cocaine were caused by Mr. Murphy’s system absorbing the drugs from the packages recovered from Mr. Murphy’s throat. Were the packages ripped or torn? If they had been removed sooner from Mr. Murphy’s throat, would the cocaine level in his system have been lower?

On November 10, the police department released a chronology of radio calls related to this incident. It reveals that nine minutes passed between the time the officers arrived at the location and the time that they called for an ambulance. This limited chronology, however, does not answer the key questions concerning whether the officers responded quickly enough after they succeeded in handcuffing Mr. Murphy. It is hoped that your investigation will answer these questions.

I also hope that your investigation will explain an apparent contradiction between the brief report released by the police and the report of the paramedics. According to the police report quoted above, the police officers succeeded in clearing Mr. Murphy’s airway and began administering CPR before the paramedics arrived. The report of the paramedics, however, indicates that the police officers did not succeed in clearing Mr. Murphy’s airway and that it was not until the paramedics arrived that the airway was finally cleared.

Even if your investigation determines that no regulations were violated and that no discipline is warranted, I ask that you also consider whether any modifications in police practices or policies are advisable. As an illustration, this case may raise the question whether the police department should examine its regulations with regard to the use of pepper spray and the handling of subjects who have been sprayed. When individuals are under the influence of certain stimulant drugs, as Mr. Murphy was, pepper spray appears to have the opposite of its intended effect, resulting in increased agitation and resistance. Do police guidelines regulate the number of bursts of pepper spray and the duration of those bursts? Do they require officers to abandon the use of the spray if a short initial burst has no effect? How many bursts of pepper spray were used in this case, and how long did the bursts last? Are officers required to record such information in their use of force reports?

Pepper spray appears to have been involved in a number of cases in which suspects have died in police custody, apparently because it plays some role in inducing breathing difficulties. This is especially true with regard to overweight subjects, like Mr. Murphy, who are placed face down after they have been subjected to the spray. For that reason, a number of police departments have forbidden their officers to leave such subjects on their stomachs after the use of pepper spray. They have also required that officers promptly check the respiration of a suspect who has been sprayed. Even if your investigation concludes that existing regulations were not violated and that pepper spray did not contribute to Mr. Murphy’s death, I ask that you consider whether revisions or additions to the department’s policies are warranted now, before Denver experiences a situation similar to the one that occurred in Boulder last summer.

Mr. Murphy’s death in police custody has raised a number of questions and has understandably prompted a great deal of public discussion. The Denver police department has apparently conducted an investigation, but so far it has not released the officers’ version of the events or the findings and conclusions of the investigation. While I believe that both the police department and the public would benefit from full disclosure of the information obtained by the police investigation, I ask that you consider, at a minimum, releasing information to Mr. Murphy’s family. They justifiably believe that they are entitled to answers to their questions, so that they can be assured that the police department has undertaken a full and thorough investigation.

I am available at any time to meet with you to discuss further the questions and issues raised in this letter. Please call me at 777-5482.

Sincerely,

Mark Silverstein,
ACLU Legal Director


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