and County of Denver District Court No. 15CV31660 Honorable
J. Eric Elliff, Judge
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
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
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) 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
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 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
video-recorded their interactions. 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. 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
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, after conducting an independent review of the internal
investigation and making detailed findings, approved the
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.
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 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.
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.
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.
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.
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,
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.
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). "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 [administrative body]."
Kruse v. Town of Castle Rock, 192 P.3d 591, 601
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 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.
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
•Brandon had puffed his chest out in a defensive manner;
• Brandon and the others had "encircled" him;
• Brandon had used his hands in a threatening manner;
• he was concerned that Brandon had a weapon in his