v. City & Cty of Denver , 417 P.3d 963 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 22, 2018
2018COA43
No. 17CA0235, Johnson v. City & Cty of Denver — Municipal
Law — City and County of Denver — Police — Use of Force —
Disciplinary Appeals — Standard of Review
In this officer discipline case, a division of the court of appeals
holds, as a matter of first impression, that under the standards of
review set forth in the Denver City Charter and the Denver Civil
Service Commission Rules, the Civil Service Commission must defer
to a hearing officer’s findings of evidentiary fact and may not rely on
a video exception not contained in those standards of review
because that exception is contrary to law. The division further
holds that the Denver Police Department’s use of force policy
articulates a single standard for reviewing an officer’s use of force
and that separate standards do not exist for deadly and non-deadly
force. The division finally concludes that while the Civil Service
Commission erred in relying on the video exception to reverse the
hearing officer’s decision, it nonetheless reached the correct result
for two reasons. First, the hearing officer erroneously concluded
that separate standards for deadly and non-deadly force existed and
erroneously applied that standard. Second, the hearing officer did
not properly defer to the Manager of Safety’s findings as required by
the standard of review applicable to hearing officers and set forth in
the Denver Civil Service Commission Rules. Accordingly, the
division affirms the district court’s judgment affirming the order of
discipline.
COLORADO COURT OF APPEALS 2018COA43
Court of Appeals No. 17CA0235
City and County of Denver District Court No. 15CV31660
Honorable J. Eric Elliff, Judge
Choice Johnson,
Plaintiff-Appellant,
v.
Civil Service Commission of the City and County of Denver; and the City and
County of Denver, Colorado,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE FREYRE
Bernard and Berger, JJ., concur
Announced March 22, 2018
The Lane Law Firm, P.C., Sean J. Lane, Greenwood Village, Colorado, for
Plaintiff-Appellant
Kristin M. Bronson, City Attorney, Richard A. Stubbs, Assistant City Attorney,
Denver, Colorado, for Defendants-Appellees
¶1 In this police discipline case involving an alleged inappropriate
use of force, we describe and then apply the standards of review
that a hearing officer must apply when reviewing the Denver Police
Department’s (Department) imposition of discipline and that the
Civil Service Commission of the City and County of Denver
(Commission) must apply when reviewing the hearing officer’s
decision.
¶2 Choice Johnson, a Denver police officer, appeals the district
court’s judgment upholding his thirty-day suspension. He raises
two issues on appeal. He contends, and we agree, that the
Commission abused its discretion when it made its own findings of
fact from a video recording of the events at issue and when it
rejected contrary facts found by the hearing officer. In doing so, the
Commission relied on an exception of its own making — the video
exception. The legality of this video exception presents a novel
issue. We conclude that the video exception is contrary to law
because it is not authorized by the standards of review articulated
in the Denver City Charter (Charter) and in the Denver Civil Service
Commission Rules (Rules), which require the Commission to defer
to the hearing officer’s findings of evidentiary fact.
1
¶3 We further conclude that the “clearly erroneous” standard of
review set forth in the Rules requires the hearing officer to defer to
the factual findings of the Manager of Safety (MOS)1 unless they are
“contrary to what a reasonable person would conclude from the
record as a whole.” Denver Civil Serv. Comm’n Rule 12, § 9(B)(1)(c).
Because the MOS’s findings were not contrary to what a reasonable
person would conclude from the record as a whole, the hearing
officer erred in substituting her own findings for those of the MOS.
Therefore, we affirm the Commission’s decision upholding the
discipline, albeit on different grounds than those relied on by the
district court.2
I. Factual and Procedural Background
¶4 As found by the hearing officer, Officer Johnson worked
off-duty at a nightclub in downtown Denver. Matthew Schreiber,
his brother Brandon, and others were at the nightclub celebrating
Matthew’s upcoming marriage. Matthew either fell asleep or passed
1 The Denver Manager of Safety delegated to the Deputy Manager of
Safety the responsibility of reviewing the Chief of Police’s written
command ordering discipline against Officer Johnson. We
nevertheless use the shorthand “MOS” to refer to the Deputy
Manager of Safety.
2 We also briefly discuss the City and County of Denver’s contention
that the hearing officer applied the wrong use of force standard.
2
out at the bar, and one of the nightclub’s bouncers escorted him off
the premises. Because Matthew was uncooperative and wished to
stay at the bar, the bouncer asked Officer Johnson for assistance.
Officer Johnson told Matthew he should take a taxi home. Matthew
did not live in Denver and said that he wished to go back into the
nightclub and drink water. Officer Johnson warned Matthew that if
he returned he would be taken to a detox facility. Matthew then left
the premises.
¶5 Approximately twenty minutes later, Officer Johnson saw
Matthew waiting in line to re-enter the nightclub. He removed
Matthew from the line, handcuffed him, and told him that he
needed to wait for the detox van to arrive.
¶6 A short time later, the other members of Matthew’s bachelor
party left the nightclub and found Matthew in handcuffs. They
confronted Officer Johnson and asked him why Matthew was in
handcuffs. In particular, Brandon profanely argued with Officer
Johnson.
¶7 During the argument, Officer Johnson moved the group under
a High Activity Location Observation (HALO) camera, which
3
video-recorded their interactions.3 That video revealed that
everyone in the group was visibly intoxicated (swaying). Officer
Johnson told the group to break up and leave, but Brandon
continued to argue. Eventually, two parties left, leaving Brandon
and another man.4 Officer Johnson said he was ordering Brandon
to detox and instructed Brandon to turn around to be handcuffed.
Brandon profanely told Officer Johnson not to touch him. Officer
Johnson then suddenly moved toward Brandon, and shoved
Brandon with both hands near the neck. Brandon fell backwards
onto some stairs leading up from where they were standing. Officer
Johnson then handcuffed Brandon.
¶8 Brandon filed a disciplinary complaint against Officer
Johnson. After an internal investigation, the Chief of Police
determined that Officer Johnson had violated Denver Police
Department Rules and Regulations RR-306 (inappropriate force
policy), and suspended him for thirty days without pay. The MOS,
3 No audio was recorded.
4 The video also shows patrons walking by and the nightclub’s
bouncer in the background, but none of these individuals were part
of the events leading to the officer’s use of force.
4
after conducting an independent review of the internal investigation
and making detailed findings, approved the discipline imposed.
¶9 Officer Johnson then appealed his suspension to a civil service
commission hearing officer. After conducting an evidentiary
hearing, the hearing officer reversed the Department’s suspension
for two reasons. She concluded that (1) the MOS had erroneously
applied the deadly force rather than the non-deadly force standard
to Officer Johnson’s conduct; and (2) the MOS had failed to present
sufficient evidence to create a reasonable inference that finding a
violation of RR-306 was correct.
¶ 10 The City and County of Denver (City) appealed the hearing
officer’s decision to the Commission. The Commission reversed the
hearing officer’s decision. It first rejected the notion that two use of
force standards existed. It found that the Department was free to
impose higher standards than the United States Constitution
required and that the MOS had properly applied the use of force
standard. The Commission next rejected the hearing officer’s
conclusion that the discipline was not supported by the record. It
found that the video evidence alone, depicting the four minutes
leading up to the use of force, contradicted portions of Officer
5
Johnson’s testimony and provided ample evidence to support the
thirty-day suspension. Relying on a Commission-created “video
exception,” it reinstated the Department’s discipline.
¶ 11 Officer Johnson then appealed to the district court, which
affirmed the Commission’s decision.
II. Analysis
¶ 12 We first address the standards of review applicable to the
Commission and the hearing officer and conclude that both
misapplied their respective standards of review. We next address
and reject Officer Johnson’s contention that the Commission legally
erred in finding that only one use of force standard exists, despite
his assertion that Tennessee v. Garner, 471 U.S. 1 (1985),
articulates a deadly force standard and Graham v. Connor, 490 U.S.
386 (1989), articulates a non-deadly force standard. We finally
conclude that despite the Commission’s misapplication of its
standard of review, its ultimate decision reversing the hearing
officer’s order was correct, because the hearing officer applied the
wrong standard of review to the MOS’s decision. In the end, we
affirm the order of discipline.
6
A. Standard of Review and Applicable Law
¶ 13 C.R.C.P. 106(a)(4) provides as follows:
Where any governmental body or officer or any
lower judicial body exercising judicial or
quasi-judicial functions has exceeded its
jurisdiction or abused its discretion, and there
is no plain, speedy and adequate remedy
otherwise provided by law: (I) Review shall be
limited to a determination of whether the body
or officer has exceeded its jurisdiction or
abused its discretion, based on the evidence in
the record before the defendant body or officer.
Thus, in a C.R.C.P. 106(a)(4) action, “judicial review of a
governmental agency exercising its quasi-judicial role . . . is limited
to whether the body has exceeded its jurisdiction or abused its
discretion.” City of Commerce City v. Enclave W., Inc., 185 P.3d 174,
178 (Colo. 2008). We sit in the same position as the district court
when reviewing an agency decision under C.R.C.P. 106(a)(4).
Marshall v. Civil Serv. Comm’n, 2016 COA 156, ¶ 10; Roalstad v.
City of Lafayette, 2015 COA 146, ¶ 13. We review de novo whether
the agency abused its discretion. Roalstad, ¶ 13.
¶ 14 An agency abuses its discretion if its decision is not
reasonably supported by any competent evidence in the record, or if
the agency has misconstrued or misapplied applicable law.
7
Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff’s Dep’t, 196 P.3d 892,
899-900 (Colo. 2008); Roalstad, ¶ 13. An action by an agency is
not arbitrary or an abuse of discretion when the reasonableness of
the agency’s action is open to a fair difference of opinion, or when
there is room for more than one opinion. Bennett v. Price, 167 Colo.
168, 172, 446 P.2d 419, 420-21 (1968).
¶ 15 “In reviewing the agency’s construction, we rely on the basic
rules of statutory construction, affording the language of the
provisions at issue their ordinary and common sense
meaning.” Enclave W., Inc., 185 P.3d at 178. “Our primary task in
interpreting statutes and municipal enactments is to give effect to
the intent of the drafters, which we do by looking to the plain
language.” Waste Mgmt. of Colo., Inc. v. City of Commerce City, 250
P.3d 722, 725 (Colo. App. 2010). If the language of the provision at
issue is clear and the intent of the legislative body that enacted it
may be discerned with certainty, we may not resort to other rules of
statutory interpretation. Id. When construing an ordinance in
the C.R.C.P. 106(a)(4) context, “we give effect to every word and, if
possible, harmonize potentially conflicting provisions.” Enclave W.,
Inc., 185 P.3d at 178.
8
¶ 16 Our review of the agency’s factual, discretionary
determinations is more deferential. We must uphold the
Commission’s decision unless there is no competent evidence in the
record to support it. Carney v. Civil Serv. Comm’n, 30 P.3d 861,
863 (Colo. App. 2001).5 “No competent evidence” means that the
Commission’s decision is “so devoid of evidentiary support that it
can only be explained as an arbitrary and capricious exercise of
authority.” Id. (quoting Bd. of Cty. Comm’rs v. O’Dell, 920 P.2d 48,
50 (Colo. 1996)); accord Turney v. Civil Serv. Comm’n, 222 P.3d 343,
347 (Colo. App. 2009). “An action by an administrative [body] is not
arbitrary or an abuse of discretion when the reasonableness of the
[body’s] action is open to a fair difference of opinion, or when there
is room for more than one opinion.” Khelik v. City & Cty. of Denver,
2016 COA 55, ¶ 13. Because we are not the fact finder, we “cannot
weigh the evidence or substitute our own judgment for that of the
5 Under this standard, the appropriate consideration for an
appellate court is whether there is sufficient evidentiary support in
the record for the administrative body’s decision, not whether there
is adequate evidence to support the decision of the district court.
Ross v. Fire & Police Pension Ass’n, 713 P.2d 1304, 1309 (Colo.
1986).
9
[administrative body].” Kruse v. Town of Castle Rock, 192 P.3d 591,
601 (Colo. App. 2008).6
B. The Commission’s Video Exception is Contrary to Law
¶ 17 Officer Johnson contends that the Commission abused its
discretion in refusing to defer to several of the hearing officer’s
findings of evidentiary fact based on the “video exception.” In a
prior case, In re Sparks & Murr, Nos. 11 CSC03A-2 & 11 CSC04A-2,
slip op. at 23-24 (Civil Serv. Comm’n City & Cty. of Denver Dec. 9,
2013), the Commission created the video exception. The
Commission described the video exception as follows: “We believe
statements an officer makes in direct contradiction to objectively
verifiable facts in an otherwise authenticated video of the scene are
not entitled to a presumption of truth.” Id. at 24. Officer Johnson
argues that the Commission was without the authority to create
6 We recognize that in criminal cases involving suppression of
evidence issues, this court may review video evidence de novo. See
People v. Ramadon, 2013 CO 68, ¶ 21(When an interrogation is
video or audio recorded and there are no disputed facts outside the
recording pertinent to the suppression ruling, we are in the same
position as the trial court in deciding the suppression issue.);
People v. Springsted, 2016 COA 188, ¶ 16 (same). However, our
standard of review is not at issue in this appeal. As we explain
below, the Denver City Charter places express limits on the
Commission’s standard of review that do not apply to state courts.
10
this exception under Denver Civil Service Commission Rule 12,
section 11(D)(1). He reasons that the video “was not new material
evidence,” one of the few exceptions to the rule that the Commission
is bound by a hearing officer’s findings of historical facts.
1. The Commission’s Findings
¶ 18 After reviewing the hearing evidence, the Commission found
that the hearing officer had abused her discretion in finding no
credible evidence to support the discipline. It concluded that the
HALO video alone, which captured the parties’ conduct for the four
minutes leading up to Officer Johnson’s use of force, provided
ample evidence to show that the degree of force used was not
commensurate with the threat posed and supported the
Department’s imposition of discipline. Relying on the video
exception, it found that the video contradicted Officer Johnson’s
claims that
 Brandon and the others had made aggressive and
threatening movements towards him and postured
themselves aggressively;
 Brandon had puffed his chest out in a defensive manner;
 Brandon and the others had “encircled” him;
11
 Brandon had used his hands in a threatening manner;
and
 he was concerned that Brandon had a weapon in his
pocket.
¶ 19 The Commission found the video showed that Officer Johnson
never acted concerned with anyone’s behavior, that no one acted in
a threatening or aggressive manner toward Officer Johnson, and
that for no apparent reason, Officer Johnson suddenly moved in
front of Brandon and shoved him to the ground.
HALO Video at 4:19.
12
HALO Video at 4:20.
HALO Video at 4:21.
13
HALO Video at 4:22.
¶ 20 Relying in part on the video exception, and its own findings of
the circumstances confronting Officer Johnson (rather than
accepting the hearing officer’s findings of fact), the Commission
concluded that the hearing officer erred in reversing the MOS’s
decision and that ample evidence supported the imposition of
discipline.
2. Commission’s Standard of Review
¶ 21 The Commission’s review of a hearing officer’s findings and
conclusions is governed by Charter section 9.4.15 and Denver Civil
14
Service Commission Rule 12, section 11(J)(5).7 The Charter
provides the following:
In deciding the appeal, the Commission shall
rely only upon the evidence presented to the
Hearing Officer except when the appeal is
based on new and material evidence. All
factual findings by the Hearing Officer shall be
binding on the Commission, and the
Commission may not resolve disputed issues
of fact.
Charter § 9.4.15(F).
¶ 22 The Civil Service Rules provide that
[a]ll findings of evidentiary fact by the Hearing
Officer shall be binding on the Commissioners.
The Commissioners may not resolve disputed
issues of fact.
Denver Civil Serv. Comm’n Rule 12, § 11(J)(5).
7 We recognize that Nixon v. City & Cty. of Denver, 2014 COA 172,
¶ 25, applied the standard of review found in Colorado’s
Administrative Procedure Act, section 24-2-105(15)(b), C.R.S. 2014,
in an appeal involving the Commission’s decision to uphold the
termination of a Denver police officer. But Nixon is distinguishable.
Nixon did not discuss the issue of whether the Administrative
Procedure Act should be applied to the Commission’s decisions; the
division simply assumed that it was “bound . . . by section
24-4-105(15)(b) . . . .” But that issue has taken center stage in this
case, and we have decided that the Administrative Procedure Act
does not apply. See § 24-4-107, C.R.S. 2017 (“[The APA] applies to
every agency of the state having statewide jurisdiction . . . .”
(emphasis added)).
15
¶ 23 Additionally, Charter section 9.4.15(F), on which Officer
Johnson relies, provides that the Commission’s review of a hearing
officer’s decision is limited to: (1) considering new and material
evidence; (2) deciding whether the hearing officer erroneously
interpreted departmental or civil service rules; (3) weighing policy
considerations that may have an effect beyond the case at hand;
and (4) deciding whether the discipline affirmed or imposed is
inconsistent with the discipline other officers received under similar
circumstances.8
¶ 24 We interpret municipal regulations as we do statutes. See
Marshall, ¶ 12 (“[W]hen interpreting a [municipal] charter courts
apply the principles of statutory interpretation.”). We apply the
plain meaning of the language as written and may not add language
that does not exist. See Williams v. Dep’t of Pub. Safety, 2015 COA
180, ¶ 85 (“[W]hen interpreting a statute, ‘we must accept the
General Assembly’s choice of language and not add or imply words
8 Rule 12 of the Denver Civil Service Commission provides the same
bases for appeal and grounds for the Commission’s review except
for policy considerations that may have an effect beyond the case at
hand. Denver Civil Serv. Comm’n Rule 12, § 11(D).
16
that simply are not there.’” (quoting People v. Benavidez, 222 P.3d
391, 393-94 (Colo. App. 2009))).
3. Application of the Standard of Review
¶ 25 Both the Charter’s and the Rules’ standards of review govern
the Commission’s review of the MOS’s order and the hearing
officer’s findings. They require the Commission to defer to the
hearing officer’s evidentiary findings of fact, and they preclude the
Commission from resolving disputed issues of fact. They say
nothing about deferring to a hearing officer’s findings of fact unless
those facts are contradicted by authenticated video evidence. While
a video exception to the standard of review may make eminent
sense in today’s world, this decision is for the Denver voters to
make, not the Commission or the courts. See Colo. Const. art. XX,
§ 5 (“The citizens of the city and county of Denver shall have the
exclusive power to amend their charter . . . .”); Charter § 9.3.4 (“The
Commission shall have the power to make and enforce rules
consistent with its rule-making process (which shall include a
requirement that proposed rules be posted prior to adoption), and
its Charter-mandated duties, powers, and responsibilities.”).
17
¶ 26 The Commission simply does not have the authority to amend
the Charter’s standard of review. Therefore, we conclude that the
video exception is contrary to law and invalid, and that both the
Commission and the district court erred in relying on it to reverse
the hearing officer’s decision.9
C. The Department’s Use of Force Standard, Not the Fourth
Amendment, Applies to an Officer’s Use of Force
¶ 27 The Commission concluded that the hearing officer had clearly
erred in finding a “deadly force/non-deadly force dichotomy” from
two United States Supreme Court cases, and that the Department
was free to establish more stringent standards than the
constitutional baselines articulated in those cases. We agree.
¶ 28 The Charter authorizes the Department to promulgate and
enforce rules governing the conduct of law enforcement officers.
Charter § 9.4.13. The police department’s RR-306 states, “[o]fficers
shall not use inappropriate force in making an arrest or in dealing
9 We also reject Officer Johnson’s contention that the Commission
violated Charter section 9.4.15(F) because the Commission
specifically addressed the hearing officer’s erroneous interpretation
of the use of force policy under section 9.4.15(F)(a) and the public’s
perception of its officers’ use of force under Charter section
9.4.15(F)(c). He does not cite nor have we found any authority
requiring findings under all four sections of section 9.4.15(F)(a)-(d).
18
with a prisoner or any other person.” The Denver Police
Department Operations Manual (OMS) sets forth the Department’s
use of force policy. As relevant here, it provides:
 “[A]n officer shall use only that degree of force necessary
and reasonable under the circumstances.” OMS
§ 105.01(1)(a), https://perma.cc/SVG2-L743 (emphasis
added).
 “Officers should ensure that they do not engage in
unreasonable actions that precipitate the use of force as
a result of tactical, strategic, or procedural errors.” Id.
(emphasis added).
 “The reasonableness inquiry in an excessive force case is
an objective one; the question is whether the officers’
actions are objectively reasonable in light of the facts and
circumstances confronting them.” Id.
 “The reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.”
Id.
19
 “Use of force that is not lawful, reasonable and
appropriate will not be tolerated.” OMS § 105.01(1)(b).
 “The level of force applied must reflect the totality of
circumstances surrounding the immediate situation.” Id.
 “The officer need only select a level of force that is within
the range of ‘objectively reasonable’ options.” Id.
¶ 29 These provisions establish a standard to be applied in
reviewing an officer’s use of force: (1) whether the use of force was
necessary; and (2) whether the use of force was reasonable. And
that determination is informed by the totality of the circumstances
surrounding the use of force. OMS § 105.01(4). This provision
provides:
1. The reasonableness of an officer’s use of
force under the Fourth Amendment requires
careful attention to the totality of the facts and
circumstances known by the officer prior to
using force, including:
a. The severity of the crime at issue and
b. Whether the suspect poses an immediate
threat to the safety of the officer(s) or others
and
c. Whether the suspect is actively resisting
arrest or attempting to evade arrest by the
flight.
OMS § 105.01(4)(c).
20
¶ 30 First, we agree with the Commission that the Department was
free to adopt a policy that applies a more stringent standard than
the baseline constitutional standard. See Turney, 222 P.3d at 350
(noting that police departments “may — indeed, they should —
impose higher internal standards on their officers than simply not
violating state criminal law and avoiding federal damages liability”);
see also Harris v. City of Colorado Springs, 867 P.2d 217, 219 (Colo.
App. 1993) (observing that a police officer is held to a higher
standard of conduct because he or she is “a trustee of the public
interest, bearing the burden of great and total responsibility to his
[or her] public employer” (quoting Gardner v. Broderick, 392 U.S.
273, 277 (1968))); see also Graham, 490 U.S. at 395 (articulating
the constitutional standard and holding that “all claims that law
enforcement officers have used excessive force — deadly or not — in
the course of an arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard, rather than under a ‘substantive due
process’ approach”).
¶ 31 Second, we also agree with the Commission that the hearing
officer erred in finding that the “20/20 hindsight” language created
21
a separate non-deadly force standard and in applying only that
standard to the evidence. As is evident from the OMS, this
particular language simply qualifies the objectively reasonable
standard and instructs a reviewer of the officer’s use of force to
consider what is objectively reasonable from the perspective of a
reasonable officer on the scene, under all the attendant
circumstances. Accordingly, the Commission correctly determined
that the hearing officer erred in her application of the use of force
standard.
D. Sufficient Evidence Supports the Commission’s Decision
and the Discipline Imposed
¶ 32 Our conclusion that the video exception constitutes an invalid
basis for the Commission to reject the hearing officer’s factual
findings does not end this case, because we must also decide
whether the Commission nevertheless reached the right result for
the wrong reasons. See Blood v. Qwest Servs. Corp., 224 P.3d 301,
329 (Colo. App. 2009) (noting that the court of appeals can affirm
on any grounds supported by the record), aff’d, 252 P.3d 1071
(Colo. 2011); Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe, 107
22
P.3d 402, 406 (Colo. App. 2004) (“[W]e may affirm the trial court’s
ruling based on any grounds that are supported by the record.”).
¶ 33 To answer this question, we must examine whether the
hearing officer applied the correct standard of review to the MOS’s
findings in concluding that “no credible evidence” supported the
discipline. We requested supplemental briefing on this issue.
¶ 34 Officer Johnson contends that the hearing officer is only
required to defer to the MOS’s decisions concerning the
Department’s policies, and that the hearing officer otherwise finds
evidentiary facts de novo. The City agrees that the hearing officer
must defer to the MOS’s findings concerning department policy, but
counters that the hearing officer may only set aside the MOS’s
factual determinations when “the decision, although supported by
the evidence, is contrary to what a reasonable person would
conclude from the record as a whole,” under Denver Civil Service
Commission Rule 12, section 9(B)(1)(c)(i). We agree with the City.
1. Hearing Officer’s Standard of Review
¶ 35 A hearing officer may reverse the MOS’s decision only when it
finds that decision to be “clearly erroneous.” Denver Civil Serv.
23
Comm’n Rule 12, § 9(B)(1)(b). The Rule defines “clearly erroneous”
as follows:
A Departmental Order of Disciplinary Action
shall be deemed to be “clearly erroneous”, in
whole or in part, in the following
circumstances:
(i) The decision, although supported by
the evidence, is contrary to what a
reasonable person would conclude from
the record as a whole;
(ii) If the Manager fails to follow the
applicable Departmental guidelines, rules
or regulations, an applicable matrix or its
associated guidelines, and absent such
failure the discipline imposed would not
have resulted; or
(iii) If the Manager otherwise exceeds his
authority.
Denver Civil Serv. Comm’n Rule 12, § 9(B)(1)(c).
¶ 36 Moreover, when reviewing the Department’s disciplinary
action, the Rule further provides that
Hearing Officers shall not substitute their
judgment for that of the Executive Director of
Safety concerning any policy considerations
underlying the discipline, to include the
interpretation of Departmental Rules and
Regulations, and may only reverse or modify
the Manager’s decision concerning policy
considerations when it is shown to be clearly
erroneous. Hearing Officers shall not
24
substitute their judgment for that of the
Executive Director of Safety in determining the
appropriate level of penalty to be imposed for a
sustained violation, and may only modify the
disciplinary penalty imposed when it is shown
to be clearly erroneous.
Denver Civil Serv. Comm’n Rule 12, § 9(B)(1)(a).
¶ 37 Although the Charter and the Rules are far from clear
regarding when a hearing officer may set aside the discipline
ordered by the Department (through the MOS), it is apparent that
this is not a de novo hearing in which no deference is given to the
MOS’s findings and imposition of discipline. See, e.g., Tilley v.
Indus. Claim Appeals Office, 924 P.2d 1173, 1177 (Colo. App. 1996)
(“In unemployment proceedings, the hearing officers are required to
assess the evidence independently and reach their own conclusions
concerning the reason for the separation from employment, the
probative value of the evidence, the credibility of the witnesses, and
the resolution of any conflicting testimony.”); Marlin Oil Co. v. Indus.
Comm’n, 641 P.2d 312, 313 (Colo. App. 1982) (“An administrative
appeal in an unemployment compensation case is a review of the
case in its entirety, and the hearing is, in effect, a trial de novo.”).
25
¶ 38 As we read the Charter and the Rules, the hearing officer must
defer to the MOS’s determination of the propriety of the imposition
of discipline unless that decision is clearly erroneous. Under the
clearly erroneous standard, a hearing officer may only set aside the
discipline imposed when the MOS’s decision is contrary to what a
reasonable person would conclude from the record as a whole.
Denver Civil Serv. Comm’n Rule 12, § 9(B)(1)(c); see Charter
§ 9.4.15(D) (“In reviewing the disciplinary action, the Hearing
Officer shall give due weight to the necessity of the maintaining by
the Manager of administrative control of the department. The
Hearing Officer shall review the full record before him or her and
shall make written findings, affirming, reversing, or modifying the
disciplinary action in whole or in part.”). The MOS must make a
prima facie showing in support of its order. Marshall, ¶ 15 (finding
that Denver Civil Service Commission Rule 12, section 8(D)(2)
requires the Department to present to a hearing officer “sufficient
evidence to create a reasonable inference of the correctness of the
sustained Rule violation(s)”).
¶ 39 The burden of proving that the MOS’s discipline order was
clearly erroneous rests with the officer seeking the reversal of that
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order. See Denver Civil Serv. Comm’n Rule 12, § 8(D)(3) (explaining
that the petitioner shall be considered the proponent of an order
seeking the modification or reversal of the discipline imposed); see
also § 24-4-105(7), C.R.S. 2017 (noting that the proponent of an
order shall have the burden of proof).
¶ 40 Viewing the record before the hearing officer, which includes
the HALO video, as well as the statements of the various
participants in this matter, we cannot conclude that either the MOS
failed to present a prima facie case to support the discipline
imposed or that his decision was contrary to what a reasonable
person would conclude from the record as a whole.
¶ 41 For instance, the undisputed evidence shows that Brandon
verbally berated Officer Johnson and refused to leave the area, but
no one described him taking physical actions against Officer
Johnson until after he was pushed. Officer Johnson told the
internal investigators that he decided to “close the gap” between
himself and Brandon after telling Brandon he was going to detox.
He further admitted that he “got too close” and was “in too deep.”
He said he needed to create some distance between them and that
he shoved Brandon to create that distance. When the investigators
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asked why he did not create that distance by taking a step back,
Officer Johnson responded that he reverted to his training “not to
give up ground.”
¶ 42 The undisputed evidence further reveals that the nightclub’s
bouncer was a short distance away from the group, was available to
assist Officer Johnson throughout the encounter, and, at one point,
approached Officer Johnson to ask whether he needed assistance.
Officer Johnson told the internal investigators, “[I] didn’t have to
call for [police] back-up. I figured, hey, take care of the situation
fast so it doesn’t prolong – so it doesn’t go longer.” He did not recall
whether he considered asking the bouncer for assistance.
¶ 43 Applying the Department’s use of force standard to these and
the remaining facts, the MOS found that Officer Johnson’s decision
to “close the gap” was not reasonable or necessary to perform his
duties and that it was more reasonable to maintain distance in
order to better assess a potential threat. He further found that it
was neither reasonable nor necessary for Officer Johnson to create
distance by shoving Brandon when he could have safely stepped
back in accordance with departmental policy concerning retreat and
repositioning. And, he noted that the Department’s use of force
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policy “is more restrictive than the ‘objective reasonable’ standard.”
Thus, he also found that Officer Johnson could easily and
reasonably have summoned additional assistance.
¶ 44 The hearing officer never considered whether the MOS’s
decision was clearly erroneous, because she instead found that he
had failed to offer “sufficient evidence to create a reasonable
inference of the correctness of the sustained Rule violation” — in
other words, that he had not established a prima facie case. She
reached this conclusion based on her findings that: (1) Brandon
was pushed onto stairs leading up rather than down; (2) no
evidence showed that Officer Johnson was angry or impatient; (3)
the technique employed by Officer Johnson was a proper arrest
control technique; (4) the MOS erroneously considered whether
Brandon posed a “credible threat” to officer safety because that was
the inapplicable deadly force standard; and (5) the MOS erroneously
applied the deadly rather than the non-deadly force standard in
reaching his decision.
¶ 45 However, we have already concluded that the MOS properly
applied the Department’s use of force standard. We further
conclude that the undisputed evidence to which he applied that
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standard is sufficient to create a reasonable inference in the
correctness of the sustained rule violation and that his decision was
not clearly erroneous.
¶ 46 The hearing officer improperly substituted her judgment for
the MOS’s in concluding otherwise, contrary to the standards set
forth in the Charter and Denver Civil Service Commission Rule 12.
¶ 47 Under our deferential standard of review, we cannot conclude
that the Commission abused its discretion in reversing the hearing
officer’s decision based on the record as a whole, including the
video evidence. While different people may have different reactions
to the HALO video, the Charter and accompanying Rules require the
hearing officer to defer to the Department’s interpretation of its own
policies. While the Commission is bound by the hearing officer’s
evidentiary findings, it reviews for clear error the hearing officer’s
ultimate conclusions of fact — here whether the hearing officer
applied the proper use of force standard and whether competent
evidence supported the Department’s imposition of discipline,
absent the video exception. Thus, while we find legal error in the
Commission’s reliance on the video exception, we nevertheless
conclude that the remaining record before the Commission and the
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hearing officer supports the Commission’s decision and the
Department’s imposition of discipline.
III. Conclusion
¶ 48 The judgment is affirmed.
JUDGE BERNARD and JUDGE BERGER concur.
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