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Johnson v. Civil Service Commission of City and County of Denver

Court of Appeals of Colorado, Seventh Division

March 22, 2018

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.

          City and County of Denver District Court No. 15CV31660 Honorable J. Eric Elliff, Judge

          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

          OPINION

          FREYRE JUDGE

         ¶ 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.

         ¶ 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 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.[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, 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 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.

         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. 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.

         ¶ 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 [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 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;
• Brandon had used his hands in a threatening manner; and
• he was concerned that Brandon had a weapon in his ...

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