Officer, sergeant get minor penalties

Keith Paul

Wednesday, May 22, 2002 | 10:49 a.m.

A Metro Police officer seen on a casino security videotape punching a handcuffed suspect and a sergeant who withheld the tape were given minor suspensions for the incident, police officials told the Sun Tuesday.

An internal investigation found Officer David D. Miller violated the department's use-of-force policy and that Sgt. Leonard Marshall neglected duty by withholding evidence, said Lt. Vincent Cannito, a Metro spokesman.

As punishment both received minor suspensions, defined by department discipline guidelines as between eight and 40 hours. Cannito would not reveal how long the suspensions were, citing privacy of personnel actions. Police sources told the Sun the suspensions were for 10 hours, meaning one work day -- patrol officers work four 10-hour days a week.

The minor suspensions were not commensurate with the offenses, said Gary Peck, executive director of the American Civil Liberties Union of Nevada.

"We have a serious excessive force offense and a serious breach of policy by a supervisor that resulted in a breakdown in the system of accountability and the punishment is not proportionate," Peck said. "It sends the wrong message to the public and it sends the wrong message to the officers that misconduct will not be dealt with in the appropriate manner."

Cannito said in both cases the department's discipline guidelines call for minor suspensions for the policy violations.

A videotape showed the Nov. 7 scuffle between Miller, 26, and a handcuffed Frankie Davis, 33, inside the Las Vegas Club's security office and just outside the office in the hallway. Miller was seen hitting Davis in the chest with a short right -- a blow that police determined was not justified. Davis suffered a fractured vertebra in his neck.

Prosecutors later declined to press criminal charges against Miller, an officer for two years, saying the officer's actions were not only not criminal, but also "lawful and appropriate."

"We have to keep in mind that just because it's not a criminal offense, it can be a policy violation," Cannito said. "It was an unnecessary strike. We hold ourselves to a higher standard."

Davis' attorney, Barry Levinson, said police never addressed his client's broken neck -- an injury he says occurred when Davis was thrown head-first into a wall.

"You don't punch a handcuffed guy," said Levinson, who filed a civil lawsuit against Metro in federal court in Las Vegas. "I think they got off real easy. That's not punishment for what happened."

Levinson said he has taken depositions from two of the security guards who were standing around during the struggle. He says both claim that Davis was thrown head-first into a wall. The surveillance tape cuts off during that time and picks up again with Miller kneeling over Davis as he continues to struggle.

Marshall, 36, an officer for about eight years, was notified the night of the incident and received a copy of the tape, but he did not log the tape into evidence and did not stress the nature of the incident to his supervisors for an investigation, Cannito said.

"It was handled improperly. The tape should have been impounded and it wasn't impounded," he said. "Poor judgment was used and that judgment was addressed."

Davis acknowledged he was homeless and had been staying in a stairwell at the downtown hotel-casino when security officers found him.

Davis was seen on the video struggling from the officer and spitting at one of the security guards before the officer arrived. He was also seen struggling while handcuffed on the ground right before being punched by Miller.

However, Levinson said if the officer felt he couldn't control Davis, there were several security guards who could have assisted him.