25CA0833 Stuper v Denver 04-30-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0833 City and County of Denver District Court No. 23CV31467 Honorable Jon J. Olafson, Judge
Cory Stuper and Brian Finneran,
Plaintiffs-Appellants,
v.
City and County of Denver,
Defendant-Appellee.
ORDER AFFIRMED
Division VII Opinion by JUDGE JOHNSON Pawar and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 30, 2026
Lane Pass & Associates, P.C., Sean J. Lane, Brittney M. Townsley, Aurora, Colorado, for Plaintiffs-Appellants
Miko Brown, City Attorney, Jennifer L. Jacobson, Assistant City Attorney, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiffs — two police officers employed by the Denver Police
Department (the Department) — Cory Stuper (Officer Stuper) and
Brian Finneran (Officer Finneran) (collectively, the officers), appeal
the district court’s order affirming the disciplinary action imposed
against them by the Denver Civil Service Commission (the
Commission), an agency of defendant, the City and County of
Denver (the City).
¶2 The officers allege that the Commission erred by (1) upholding
the hearing officer’s determination that an exigent circumstance
existed for the officers to remain in the victim’s home after the
victim revoked consent for them to be in the residence; (2) failing to
address the City’s nondisclosure of a video under Denver Civil
Service Commission Rule 12 (Commission Rule 12); and (3) failing
to address the City’s spoliation of the record and late disclosure of
evidence, resulting in insufficient evidence to support the discipline
imposed and violating their due process rights. We disagree with
their contentions and, therefore, affirm the Commission’s decision.
I. Background
¶3 In June 2021, the officers responded to a 911 call involving a
domestic violence incident between the victim and a male
1 perpetrator. The daughter of the victim called 911 after receiving
multiple distressed phone calls from her mother. The 911
dispatcher provided the officers with call notes indicating what the
daughter heard on the phone with her mother.
¶4 The officers arrived at the residence roughly fifteen minutes
after the daughter reported the incident. Upon their arrival, the
home was unlit, and the officers saw no signs of movement inside.
A man then exited the front of the residence, consented to the
officers entering the premises, and admitted that he and the victim
had an argument earlier in the evening.
¶5 In the home, the officers spoke briefly with the victim, who
remained under the covers of her bed throughout the conversation.
She told the officers that she was okay, but the man was nearby
during the police questioning. After she told the officers to leave,
they did so.
¶6 Unbeknownst to the officers, the victim endured internal
bleeding and a ruptured spleen and did not receive medical
attention until her son-in-law arrived later in the evening, having
traveled from Colorado Springs to check on his mother-in-law. She
2 spent five weeks in the hospital and required five surgeries to
address the injuries she sustained.
¶7 In July 2022, as part of an investigation handled by the
Department, the Chief Deputy Executive Director of the Denver
Department of Safety issued a “Departmental Order of Discipline
Action” (Departmental Order), determining that the officers violated
the Denver Police Department Operations Manual, Rules and
Regulations 105 (RR-105), “Conduct Prejudicial,” by failing to
adequately investigate a domestic violence incident. RR-105 states:
Officers shall not engage in conduct prejudicial to the good order and police discipline of the Department or conduct unbecoming an officer which:
a. May or may not specifically be set forth in Department rules and regulations or the Operations Manual; or
b. Causes harm greater than would reasonably be expected to result, regardless of whether the misconduct is specifically set forth in Department rules and regulations or the Operations Manual.
Specifically, the Departmental Order determined that the officers
failed to fully investigate the reported domestic violence incident
and that they admitted they never separated the victim from the
3 man “when attempting to ascertain what occurred.” The
Departmental Order concluded that the officers’ conduct
constituted a “Conduct Category D” violation under the Operations
Manual and resulted in a presumptive penalty of a ten-day
suspension. The officers appealed the Departmental Order to the
Commission, which affirmed.
¶8 The officers then appealed to the district court under C.R.C.P.
106(a)(4), alleging that the administrative body acted arbitrarily and
capriciously and that the decision could not be upheld because
portions of the agency record were missing.1 The district court
affirmed the Commission’s decision, reasoning that there was
competent evidence to support its decision to impose sanctions
against the officers, including (1) video footage from inside the home
capturing the domestic violence incident and the officers’
interaction with the victim; (2) statements from the victim;
(3) statements from the victim’s daughter; and (4) statements from
both officers. The district court also reasoned that, while it was
1 The officers’ administrative proceedings were separate cases, but
the district court consolidated their separately filed C.R.C.P. 106(a)(4) actions.
4 unfortunate that a portion of the record was missing, other
substantial evidence in the record supported the sanctions imposed
against the officers.
II. Standard of Review and Applicable Law
¶9 C.R.C.P. 106(a)(4) authorizes the district court to review
decisions of any governmental body or officer or any lower judicial
body exercising judicial or quasi-judicial functions. Johnson v.
Dep’t of Safety, 2021 COA 135, ¶ 16. We review the agency’s
decision de novo. Id. As a result, we review the administrative
agency or body’s decision, not the district court’s decision. Id. We
affirm an administrative body’s decision unless “the governmental
entity exceeded its jurisdiction or abused its discretion, which
occurs if the body misapplied the law or no competent evidence
supports its decision.” Id. (citation omitted).
¶ 10 For judicial review of agency decisions, “competent evidence is
the same as substantial evidence.” Burns v. Bd. of Assessment
Appeals, 820 P.2d 1175, 1176 (Colo. App. 1991). “Substantial
evidence” is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” City of Colorado
Springs v. Givan, 897 P.2d 753, 756 (Colo. 1995) (citation omitted);
5 see also Kruse v. Town of Castle Rock, 192 P.3d 591, 601 (Colo.
App. 2008) (“A record lacking any competent evidence means that
the ultimate decision of the administrative body is so devoid of
evidentiary support that it can only be explained as an arbitrary
and capricious exercise of authority.” (quoting Widder v. Durango
Sch. Dist. No. 9-R, 85 P.3d 518, 526-27 (Colo. 2004))). We may not
weigh evidence or substitute our judgment for that of the
administrative agency. See Kruse, 192 P.3d at 601.
III. Analysis
¶ 11 The officers contend that the discipline imposed against them
is contrary to the Fourth Amendment to the United States
Constitution, as the victim revoked her consent for them to be in
the residence. They also contend that the City engaged in discovery
violations and spoilation of the record. We disagree with their first
contention and determine that portions of their second contention
were not preserved but that, even if they were preserved, any errors
were harmless.
A. Fourth Amendment
¶ 12 The Commission found that the officers knew that a possible
domestic violence incident occurred based on the call notes
6 provided to them from dispatch, as well as the fact that the man
admitted to arguing with the victim earlier in the evening, and yet
the officers did not separate the victim from her abuser when
questioning whether she needed assistance.
¶ 13 The Commission’s findings are supported by the record.
Specifically, the victim’s daughter told a 911 operator that her
mother had called her five times; that she could hear her mother
say things like “don’t touch me”; that the phone would disconnect;
and that, in one of the calls, her mother “whispered” to call the
police.
¶ 14 One of the officers acknowledged that the man admitted that
he and the victim had argued earlier but denied that any incident
was occurring at the time. The man then led the officers to the
bedroom where the victim was located. Officer Finneran entered
the bedroom, while Officer Stuper waited outside the doorway,
creating a barrier between the man and the doorframe. But, as the
Commission found, the officers never established a visual or
auditory barrier between the suspect and the victim while Officer
Stuper questioned her.
7 ¶ 15 The lights were off in the bedroom. Officer Finneran shined
his flashlight on the victim and asked whether she was okay,
informing her that the officers had arrived to check on her. The
victim replied, “I’m okay, what’s going on? . . . [C]an you shut that
flashlight off?” The officer then asked whether he could turn on the
overhead light, to which the victim responded, “No, I’m trying to
sleep. What are you guys doing? I need you to get out.”
¶ 16 The officers left after an estimated three-minute investigation
inside the residence.
¶ 17 The Commission concluded that (1) the dispatcher’s call notes
sufficiently established exigent circumstances that would have
justified their continued presence in the home; (2) police training
required the officers to separate the man from the victim because
his presence made her less likely to be forthcoming; and (3) the
officers could have called for a third officer if they could not have
separated the parties due to officer safety, but failed to do so. As a
result, the Commission upheld the Departmental Order.
¶ 18 Although the Commission did not cite any specific case law,
we nonetheless agree with its Fourth Amendment analysis.
8 ¶ 19 Under the Fourth Amendment, a warrantless entry into a
home by police may be justified if there are exigent circumstances
or if an emergency exists. People v. Chavez, 240 P.3d 448, 450-51
(Colo. App. 2010). The two exceptions are distinct, as “the former
requires traditional probable cause while the latter requires an
objectively reasonable basis for believing immediate aid is required
inside.” Id. at 451. But sometimes “[t]he ‘emergency doctrine’
exception to the warrant requirement is but a specific example of
the exigent circumstances doctrine.” Id. (quoting People v.
Thompson, 770 P.2d 1282, 1285 (Colo. 1989)). In the case of
domestic violence, however, “the distinction between the two
doctrines often collapses because the same facts that give rise to
the exigency also provide probable cause of a suspected crime.” Id.
(quoting Amanda Jane Proctor, Breaking into the Marital Home to
Break Up Domestic Violence: Fourth Amendment Analysis of
“Disputed Permission,” 17 Am. U. J. Gender Soc. Pol’y & L. 139, 142
(2009)).
¶ 20 Courts have “accorded great latitude” to officers responding to
emergency reports of ongoing domestic violence. Chavez, 240 P.3d
at 451 (quoting United States v. Brooks, 367 F.3d 1128, 1136 (9th
9 Cir. 2004)). While courts have declined to hold that a domestic
violence situation creates a per se exigent circumstance, they are
“cognizant” of the difficulties these cases present when evaluating
the reasonableness of an officer’s actions. Id.
¶ 21 The officers rely on Chavez to argue that, despite a division of
this court upholding the reasonableness of the officers’ actions in
that case, the facts in this case are distinct. They contend that
exigent circumstances existed in that case based on the daughter
fleeing the home and reporting a domestic violence incident between
the mother and the father, which also included the daughter
reporting there were weapons inside the residence, even if they had
not been used during the altercation. See id. Here, on the other
hand, the officers contend no exigent circumstances existed
because no one had fled the home, and they had no reports of
weapons being present.
¶ 22 But some of Chavez’s principles are relevant to the
Commission’s view that the officers did not act reasonably, thus
violating RR-105. For example, the victim’s daughter had personal
knowledge of the incident, and because the officers had no reason
10 to believe the daughter would fabricate her report, her statement
was presumptively valid. See Chavez, 240 P.3d at 452.
¶ 23 The officers attempt to discredit or downplay the statements
made by the victim’s daughter by contending that, because they
had not spoken directly with her, they could not assess her
credibility. And they further note that the daughter mentioned that
her mother had a history of mental health issues and illicit drug
use. But based on these facts, the officers had no reason to
suspect the daughter, as the reporting party, might be fabricating
that (1) her mother had called her repeatedly; (2) her mother’s
statements were consistent with a domestic violence incident
occurring; and (3) her mother was asking for intervention.
Therefore, even under Chavez, the officers should have treated the
daughter’s statements to the 911 dispatcher about possible
domestic violence as presumptively valid. See id.
¶ 24 Likewise, the exigent circumstances the officers confronted
escalated — rather than decreased — when they arrived at the
location because, like in Chavez, the officers were presented with an
unlit house and then encountered the male who admitted that there
had been a verbal altercation between him and the victim. As the
11 Commission reasoned, the male’s admission of an earlier argument,
along with the dispatch information the officers had received, was
“sufficient to provide exigent circumstances to permit them to
investigate more thoroughly to determine whether the [victim] was
in need of assistance.”
¶ 25 Finally, unlike in Chavez, the officers did not separate the
parties, as their domestic violence training had taught them. The
victim’s later statement revealed that she did not feel safe to let the
officers know that she could not move from the bed due to her
extensive injuries but that if they had separated her from the
perpetrator, she would have told the police she needed help. We
conclude that, although the facts are somewhat different in Chavez,
the principles underlying an officer’s duty to investigate the
potential for domestic violence support the Commission’s evaluation
and ultimate conclusion that the officers acted unreasonably and
failed to fully investigate the situation.
¶ 26 The officers also rely on Georgia v. Randolph, 547 U.S. 103,
118 (2006), for the proposition that law enforcement officers must
immediately terminate a warrantless search upon an occupant’s
revocation of consent. But even if the officers viewed the victim’s
12 statements as revoking consent — as they claim they did — the
officers failed to mention that Randolph goes on to say, “[T]his case
has no bearing on the capacity of the police to protect domestic
victims.” Id. The Court further stated that if the police “have good
reason to believe such a threat exists, it would be silly to suggest
that the police would commit a tort by entering” a residence “to
determine whether violence (or threat of violence) has just occurred
or is about to (or soon will) occur, however much a spouse or other
co-tenant objected.” Id. In such a situation, the Court concluded
that “the question whether the police might lawfully enter over
objection in order to provide any protection that might be
reasonable is easily answered yes.” Id.
¶ 27 Given the totality of the record, we conclude that there is
substantial evidence to support the Commission’s decision
affirming the Departmental Order.
B. Discovery and Spoliation of the Record
¶ 28 Next, the officers contend that the Commission’s decision
cannot be upheld because the City (1) failed to disclose two videos
to them which the hearing officer relied on in violation of
Commission Rule 12; (2) failed to maintain the agency record
13 because two hearing transcripts are missing; and (3) untimely
disclosed over 200 pages of discovery a week before the hearing.
1. Undisclosed Videos
¶ 29 There are three videos that appear to be at play: two of which
were designated as City exhibits and are included in the record on
appeal and a third — not contained in the record — which consists
of a series of videos combined into one fifty-one-minute video.2 The
third video purportedly depicts the argument between the victim
and the male perpetrator, but it was not included in the internal
investigatory report leading to issuance of the Departmental Order
due to its “extremely graphic nature.” According to an internal
affairs memo, however, the video was maintained in the internal
affairs file.
¶ 30 Commission Rule 12, section 7, deals with discovery in the
context of disciplinary proceedings. As relevant, section 7(A)(1)(a)
states that the petitioner shall be provided reasonable access to or
copies of “[t]he full and complete Department Internal Affairs
2 To the extent the officers claim there is another video missing, we
can discern no mention of such a video in the record and assume they mean the fifty-one-minute video since it comprises multiple clips.
14 investigation file(s) . . . upon which the disciplinary action is based
in whole or in part.”
¶ 31 We assume that the officers have been unable to secure a copy
of the fifty-one-minute video because it is not included in the
agency record on appeal. Therefore, to the extent the Departmental
Order relied on the video, even in part, to impose discipline, we
agree with the officers that the video should have been made
available.
¶ 32 But the City contends that this issue is not preserved. The
City asserts that the officers requested a continuance to view the
video. The officers now contend that they were provided with the
wrong one. As a result, the City argues that there is nothing in the
record to support that the officers took any action before the
Commission to rectify the situation, such as asking for another
continuance or filing a motion to obtain the correct video. It is true
that the officers did not seek further relief from the Commission.
We do not condone the City’s failure to provide the video to the
officers, as it was obligated under Commission Rule 12 to provide
them the file upon which the Department relied to impose
15 discipline. Even so, we ultimately agree with the City that this
issue is unpreserved.
¶ 33 While we generally do not review unpreserved issues in civil
cases, see Wycoff v. Grace Cmty. Church of Assemblies of God, 251
P.3d 1260, 1269 (Colo. App. 2010), we conclude that, even if this
issue was preserved, any error was harmless. In the civil context,
an error is harmless if it does not affect the substantial rights of the
parties. C.R.C.P. 61. “An error affects a substantial right only if ‘it
can be said with fair assurance that the error substantially
influenced the outcome of the case or impaired the basic fairness of
the trial itself.’” People in Interest of R.D., 2012 COA 35, ¶ 25
(quoting Bly v. Story, 241 P.3d 529, 535 (Colo. 2010)).
¶ 34 The City contends, and we agree, that the video would be
relevant only if the officers had intended to assert that the verbal
argument between the victim and the male perpetrator happened
after the officers’ visit, a contention they did not make below or
raise on appeal. In other words, while the video likely highlighted
how severe the domestic violent incident was between the victim
and the man, this does not change the facts in the record that the
officers failed to fully investigate the circumstances. Based on the
16 description of the fifty-one-minute video, we cannot say that having
it in the record would have changed the outcome of the proceeding
in favor of the officers. See R.D., ¶ 25.
2. Spoliation of the Record
¶ 35 Similarly, the officers contend that the record contains
insufficient evidence to affirm the discipline against them because
two hearing transcripts from December 6, 2022 and March 22,
2023 are missing from the record. They also contend that the
missing records violate their due process rights.
¶ 36 The December 6 hearing ostensibly concerned the City’s
failure to disclose the fifty-one-minute video and how the City would
address the situation. And the March 22 hearing was when the
officers testified to what occurred on the night of the incident. The
officers contend that the March 22 hearing contains the only
testimony from them which presented the facts of the underlying
incident that led to their discipline.
¶ 37 The officers concede that the loss of portions of an
administrative record does not automatically entitle them to
reversal of the agency’s decision. See Gilbert v. Julian, 230 P.3d
1218, 1221 (Colo. App. 2009) (despite missing documents the
17 agency failed to submit, the appellate court was able to conduct
meaningful judicial review of the issue raised on appeal); Goodwill
Indus. of Colo. Springs v. Indus. Claim Appeals Off., 862 P.2d 1042,
1046 (Colo. App. 1993).
¶ 38 Nonetheless, they contend that because the hearings dealt
with the discovery dispute concerning the video and their
testimony, the record lacks competent evidence to support the
imposition of discipline against them. We disagree for two reasons.
¶ 39 First, we have already concluded that the video issue was
unpreserved and that any assumed error was harmless. Because of
this conclusion, we also do not see how having the December 6
hearing transcript or video would have affected the outcome of the
proceeding in the officers’ favor. See R.D., ¶ 25.
¶ 40 Second, we disagree that the record does not contain the
officers’ testimony. True, we do not have their testimony from the
March 22 hearing, but the record contains audio recordings of the
predisciplinary hearings for both officers held on June 9, 2022, in
which they told investigators their positions. They have not raised
how their June 9 statements differ from the testimony they
presented at the March 22 hearing.
18 ¶ 41 More importantly, we agree with the City that, at hearings
before the Commission, agency decisions are not reviewed de novo.
Under Commission Rule 12, section 11(D), the Commission’s review
of an agency decision “shall be limited to” (1) new and material
evidence; (2) an erroneous interpretation of Departmental or
Commission Rules; (3) policy considerations that may have effect
beyond the scope of the case at hand; or (4) inconsistencies in the
discipline affirmed or imposed under similar circumstances.
¶ 42 The officers do not make any argument that they attempted to
raise new or material evidence at the Commission hearings that
would be different from the statements they made at the
predisciplinary hearings or that are reflected in the Departmental
Order. Likewise, under Commission Rule 12, section 11,
subsections (J)(4) and (J)(5) state, respectively, that, absent the
officers attempting to raise new or material evidence, “the
Commissioners shall rely only upon the evidence presented to the
Hearing Officer” and that “[a]ll findings of evidentiary fact by the
Hearing Officer shall be binding on the Commissioners[, who] may
not resolve disputed issues of fact.” Therefore, while we certainly do
not condone the City misplacing the transcripts of the Commission
19 hearings, absent the officers attempting to raise new and material
evidence, we cannot say that our agency review was impeded by the
missing portions of the record. Thus, we conclude there is
competent evidence in the record to support the Commission’s
discipline against the officers.
¶ 43 Likewise, to the extent the officers contend that the missing
portions of the record (and the missing fifty-one-minute video)
violated their due process rights, we conclude that their arguments
are conclusory and fail to cite any legal authority. Consequently,
we decline to address this issue as it is undeveloped. See Holcim
U.S. Inc. v. Colo. Pub. Utils. Comm’n, 2025 CO 1, ¶ 47 (a claim is not
sufficiently presented for appellate review when it is stated in a
conclusory fashion without legal citation).3
3. Late Disclosure of Documents
¶ 44 Finally, the officers challenge the late disclosure of over 200
pages of discovery a week before the Commission hearing. The
3 To the extent the officers rely on the State Administrative
Procedure Act, sections 24-4-101 to -109, C.R.S. 2025, for some or all of their contentions relating to the discovery violations and spoliation of the record, we need not address this argument because we have resolved their contentions under the Denver Civil Service Commission Rules, as appropriate.
20 documents included: the Denver Police Department Disciplinary
Handbook, the Denver Police Department Operations Manual,
training materials on domestic violence, and a PowerPoint regarding
domestic violence incidents. The City withdrew three of these four
exhibits at the hearing on December 6, leaving only the PowerPoint.
¶ 45 The City offered to let the officers’ counsel speak with the
City’s witness who was anticipated to testify about the PowerPoint.
The officers have not directed us to, nor have we been able to locate,
any reference in the record that defense counsel sought any further
continuances or rulings suggesting they were adversely impacted by
the late disclosure of the PowerPoint or that the City did not make
its witness available for questioning. Because the officers have
failed to show where they continued to object to the late disclosure
of the PowerPoint, we deem this issue unpreserved. See Wycoff,
251 P.3d at 1269.
IV. Conclusion
¶ 46 We affirm the Commission’s order upholding the Departmental
Order.
JUDGE PAWAR and JUDGE GOMEZ concur.