PORTLAND – The homeless man who died in a Portland park two months ago may have been awake and moving about sometime after two officers had left him, according to a lawyer for the fired officers.

David Town, 56, was found dead in Deering Oaks Park about five hours after Officers John Virginio and John Morin found him passed out in the rose garden. The officers moved Town from the garden at the request of a city parks employee. They did not call emergency medical workers.

That decision led to their firing by Police Chief Michael Chitwood, who said the officers are expected to help people in distress, regardless of their social standing.

Virginio, an officer for 18 years, and Morin, a 13-year veteran, have appealed their discharge.

In a letter to the Portland Press Herald, their lawyer, William K. McKinley, said the men exercised their judgment and have been unfairly penalized and criticized.

“Based upon their years of experience and training, they formed the conclusion that he was not in any medical need and was rather simply sleeping as the result of alcohol ingestion,” wrote McKinley, who is representing the men on behalf of the Police Benevolent Association.

The State Medical Examiner’s office says the cause of Town’s death is still pending.

Town was not unconscious, and responded verbally and physically when the officers poured water on his neck, McKinley wrote. He was also heard snoring by the people who observed him at lunchtime Oct. 20.

The officers would have made sure Town had shelter if the weather had not been mild. When they attempted to bring him to a shelter that accepts people who are intoxicated a few weeks earlier, they learned that Town had been banned, McKinley said.

“After carefully moving him, they returned to get his cane to place it near him so that he would not need to look for it when he woke up,” McKinley wrote.

Town was found dead in a different spot than where the officers had left him, and investigators found indications that he was awake and moving about, even attempting to smoke a cigarette some time after the officers saw him, McKinley wrote.

Friends of Town said he suffered from severe seizures and that such an episode may have been responsible for his death. Police said Town died from the affects of years of alcohol abuse.

Virginio and Morin’s appeal was heard by City Manager Robert Ganley last week, but Ganley died Saturday before announcing a decision.

Lawyers for the police department and the officers have until Jan. 5 to submit written arguments. Acting City Manager Joseph Gray Jr. is to decide whether to rule on the case or to conduct a second hearing.

Gray’s decision can be appealed to an outside arbitrator.