and County of Denver District Court. No. 14CV30044. Honorable
Ross B.H. Buchanan, Judge.
T. Olson, Denver, Colorado, for Plaintiffs-Appellants.
Kristin M. Bronson, City Attorney, Richard A. Stubbs,
Assistant City Attorney, Robert A. Wolf, Assistant Director,
CAO Human Services Section, Denver, Colorado, for
Jones and Marquez[*] , JJ., concur.
Appellants, Randy Murr and Devin Sparks, two Denver Police
Department (DPD) officers (the Officers) formerly employed by
appellee the City and County of Denver (the City) appeal the
district court's order upholding their termination from
the DPD for committing deceptive acts in connection with an
incident involving excessive use of force. They argue that
appellee the Civil Service Commission of the City and County
of Denver (the Commission) erroneously interpreted the
Charter of the City and County of Denver (Charter) to grant
the Manager of Safety (MOS) implied authority to reopen their
disciplinary matter, rescind the discipline previously
imposed, and order more severe penalties, all after the order
became final and the time for appealing it had expired. We
agree with the Officers.
Factual and Procedural History
[¶2] On April 4, 2009, the Officers arrested
two men outside a Denver nightclub late at night. A high
activity location observation (HALO) security camera, capable
of recording video but not audio, showed M.D., one of the
men, talking on his cell phone, standing
near where the Officers were arresting the other individual.
It also showed that Sparks approached M.D., threw him face
first onto the pavement, and struck him nine to ten times on
the leg with a " SAP tool" as he lay in a fetal
position. M.D. did not fight back. Sparks then forcefully
dragged M.D. to a police car, and M.D. was taken to a
hospital and treated for serious injuries caused by Sparks.
[¶3] A fifteen-month investigation ensued.
The Officers justified this use of force in several official
statements by claiming that M.D. had aggressively resisted
and had been preparing to strike Sparks. Murr averred that he
saw M.D. try to punch Sparks. But after being confronted with
the HALO camera footage, Murr later said that he had only
assumed he had seen this alleged act of aggression.
Following the investigation, the Deputy Chief of Police
recommended that Sparks only be docked three days of pay, and
that Murr only be suspended for three days.
[¶4]Per Charter procedure, the MOS reviewed
these recommendations. On July 19, 2010, the MOS issued
orders as to both officers. The MOS imposed no discipline
against Sparks for his actions in arresting M.D. and did not
find that Sparks had used inappropriate force. Instead, the
MOS found only a violation of a DPD policy requiring officers
to write accurate incident reports. The MOS accepted the
Deputy Chief's recommendations as to Sparks, ordering a
" three day fine," payable by working three days
without pay or having twenty-four hours deducted from his
leave bank. The MOS also accepted the Deputy Chief's
recommendation as to Murr (based on the same policy
violation), ordering him suspended for three days. Together,
these decisions constitute what we will call the " first
disciplinary order." Neither Officer chose to appeal the
first disciplinary order to the Commission within the ten-day
period authorized by the Charter.
[¶5] Shortly after the decision became
public, a local television station obtained a copy of the
security camera footage and broadcast a story about the
incident, asking eyewitnesses to come forward. Two persons
responded; neither had been approached or interviewed by
police on the evening of the arrest or at any time
[¶6] When the MOS became aware of these two
new witnesses, and without knowing what they had to say, he
rescinded the first disciplinary order on August 19, 2010;
ordered the DPD investigation reopened based on the
possibility of new evidence; and remanded the matter.
According to his own later testimony, the MOS did so because,
after the HALO camera footage became public, two witnesses
previously unknown came forward, and many of his friends and
colleagues across the country criticized the first
disciplinary order as too lenient.
[¶7] The Officers brought an action in the
Denver District Court seeking to enjoin the MOS from issuing
new disciplinary orders, asserting that the MOS was without
authority to rescind a disciplinary order and issue a new one
after the deadline for filing an appeal had passed without
one being taken. The Denver District Court denied injunctive
[¶8] The next phase of the DPD investigation
lasted approximately nine months. The DPD interviewed the two
eyewitnesses, who corroborated what the video showed. The
only new evidence they provided was that M.D. had repeatedly
screamed, " I'm not resisting" and " You
don't have to hit me," or something similar while he
was on the ground.
[¶9] The DPD also re-interviewed Sparks and
Murr. Sparks stuck to his previous story, as did Murr,
although the latter changed his story on several key details.
After the supplemental investigation concluded, the Chief of
Police recommended that both Officers be dismissed. A new MOS
(the previous one had resigned shortly after rescinding the
first disciplinary order) issued new disciplinary orders (the
second disciplinary order) to the Officers, finding that they
had both violated a provision of the DPD Rules and
Regulations (RR), RR-112.2, " Commission of a Deceptive
Act," by claiming that the arrestee had tried to assault
Sparks. The MOS also found that Sparks had violated RR-306,
" Inappropriate Force." The MOS terminated the
employment of both Officers.
The Officers timely appealed the second disciplinary order.
They argued that the MOS did not have power, authority, or
jurisdiction to rescind the first disciplinary order, reopen
the matter, and issue the second disciplinary order. A
three-person hearing panel granted their motion for summary
judgment, concluding that the first disciplinary order had
become final once the ten-day period for appealing it to the
Commission had lapsed, and that nothing in the Charter
authorized the MOS's reassertion of jurisdiction over the
[¶11] The MOS appealed to the full
Commission. In its " Decision and Final Order"
dated April 9, 2012, the Commission reversed the hearing
panel, holding that the Charter conferred on the MOS an
implied power to " rescind and/or modify a disciplinary
order once the ten-day appeal deadline has passed when new
and material evidence justifies such modification." The
Commission stated that the MOS's " broad
disciplinary authority" over the DPD " necessarily
implied" the power to reconsider disciplinary orders. It
further held that the MOS could exercise this power for
" a reasonable period of time," where "
reasonableness" would " turn on the specific
circumstances of the case." The Commission articulated a
test for determining whether evidence was " new and
material" and remanded the case to the hearing panel.
[¶12] On remand, the hearing panel found
that the MOS " had a reasonable basis to rescind in
light of some credible new and material evidence
obtained." The panel affirmed Sparks's discipline
but reversed that of Murr, concluding that the evidence
against Murr was insufficient to show that he had committed a
deceptive act. One panel member dissented on procedural
grounds, asserting that the new witnesses' information
was an insufficient reason to reopen the investigation
because (1) allowing an incomplete investigation to serve as
grounds for such reopening would mean that the " door to
completing of an investigation will never be closed" and
(2) the new witnesses' information was not material.
[¶13] The MOS appealed and was granted a
stay of that portion of the decision reversing Murr's
dismissal. The Officers filed cross-appeals, again
maintaining that the MOS lacked authority under the City
Charter to rescind the first disciplinary order.
[¶14] In its December 9, 2013, decision, the
Commission reaffirmed its prior decision concluding that the
MOS had implied power to rescind the first disciplinary
order, and held that the MOS's actions — including
the rescission of the first disciplinary order and subsequent
promulgation of the second disciplinary order — were
" reasonable" because the MOS acted " within a
reasonable period of time" and because his actions were
properly based on " new and material evidence," in
accordance with the test the Commission had articulated in
its April 9, 2012, decision. The Commission also upheld the
panel's affirmance of Sparks's discipline but
reversed the panel's conclusion that Murr had not
violated RR-112.2 because he lacked the necessary intent. The
Commission then reinstituted Murr's termination.
[¶15] The Officers sought review in the
Denver District Court in a new C.R.C.P. 106(a)(4) action,
asserting that (1) the MOS did not have the authority to
rescind the first disciplinary order once the ten-day appeal
deadline had passed; (2) even if the MOS had this authority,
he did not exercise it reasonably in this case; and (3) the
Commission's reinstatement of Murr's termination
should be reversed because the Commission abused its
discretion by not holding itself bound by the hearing
panel's determination that Murr lacked the necessary
intent to violate RR-112.2.
[¶16] On November 29, 2017, in a lengthy
order, the district court affirmed the entirety of the
Commission's Decision and Final Order, finding that the
statutory purpose behind the Charter's " broad
delegation" to the MOS of administrative and
disciplinary authority over Denver police officers would be
contravened by the rigid jurisdictional limitations urged by
the Officers. The court further concluded that the Commission
acted reasonably when it articulated and applied the
four-part " new and material evidence" test ...