Turney v. Civil Service Commission

222 P.3d 343, 2009 Colo. App. LEXIS 574, 2009 WL 1012874

• Court: Colorado Court of Appeals
• Decided: April 16, 2009
• Docket: 08CA0215
• Status: Published

Opinions

Opinion by

Judge CONNELLY.

Denver Police Officer James Turney challenges his ten-month suspension for tactical errors preceding his fatal shooting of a developmentally disabled fifteen-year-old boy who had been wielding a knife. Denver's Civil Service Commission, reversing an administrative hearing officer, upheld the suspension. Turney sought judicial review under C.R.C.P. 106(a)(d);, the district court affirmed the commission; and Turney now appeals.

Though the shooting itself was not alleged to have violated the department's use-of-force policy, Turney was suspended for violating a provision requiring that officers "maintain the highest standard of efficiency and safety." The commission disagreed with the hearing officer's determination that this provision could not constitutionally be applied to Turney. It upheld the suspension because Turney had "disregarded the opportunity to de-escalate" the situation prior to the shooting.

Turney contends the "highest standard of efficiency and safety" provision is unconstitutionally vague, and that the commission exceeded its authority, applied the wrong legal standard, and made other legal and factual errors. We affirm the judgment upholding the suspension.

I. Background

A. The Police Response and Shooting

On the afternoon of July 5, 2008, the sister of fifteen-year-old Paul Childs called "911" from her Denver home. She reported that Paul was trying to stab their mother with a long, butcher-style knife because the mother had locked the doors to the home so Paul could not run away. A dispatcher relayed this information to several police units.

Four officers responded within minutes of each other. Turney arrived first, so he was the "primary" officer while the others were "cover" officers.

Turney approached the home carrying a firearm, and a second officer approached carrying a non-lethal "taser" device. The mother reported from the front door that Paul still had the knife, and Turney instructed everyone to leave the home. Six occupants (including the mother and sister) exited through the front door, leaving Paul alone inside.

After everyone but Paul left the home, Turney remained on the porch holding an outer security door ajar with his foot. The inner wooden door remained open.

A second officer, who retreated from the porch, told Turney that Paul was holding a knife behind the open wooden door. Turney did not release the outer security door; he ordered Paul to drop the knife and come out with his hands up. Other officers yelled similar commands. Paul did not heed those commands.

Paul, still carrying a knife, proceeded toward Turney. Turney fired several shots, striking Paul in the chest, shoulder, and abdomen. Paul was rushed to a hospital and later pronounced dead from the gunshot wounds.

B. The Denver Police Department Rules and the Suspension

The Denver Manager of Public Safety determined that Turney's actions leading up to the shooting violated Police Department Rule and Regulation 102. RR-102 requires officers to "obey all departmental rules, duties, procedures, instructions, or orders, and the provisions of the Operations Manual." The manager imposed a ten-month suspension for this violation, as well as for unrelated and less serious violations not before us in this appeal.

The suspension letter stated the RR-102 violation pertained to Operations Manual § 3.18. Section 8.18 provides: "In carrying out the functions of the department, all members thereof shall direct and coordinate their efforts in such a manner as will establish and maintain the highest standard of efficiency and safety."

The manager did not find, and opined he could not properly have found, that the shooting violated the use-of-foree policy as it then existed in Operations Manual § 105.00. Section 105.00(1) stated, "Department Policy as well as relevant Federal, State and Local laws shall govern use of force by officers." Subsections (2) and (8) went on to include lengthy citations to, descriptions of, and quotations from federal and state statutory and case law.

Subsection (1) of the policy further provided the department would support its officers' "lawful use of reasonable and appropriate force," but the "[ulse of foree that is not lawful, reasonable and appropriate will not be tolerated." It stated: "The level of force applied must reflect the totality of cireum-stances surrounding the immediate situation." It explained officers "need only select a level of force that is within the range of 'objectively reasonable' options," but they "must rely on training, experience and assessment of the situation to decide an appropriate level of force to be applied. Reasonable and sound judgment will dictate the force option to be employed."

The manager testified that he, like his predecessors, construed the policy to cover only the immediate cireumstances confronting an officer when force was used. The manager was unable to conclude Turney's shooting was unjustified in light of that temporal limitation.

The manager further concluded, however, that Turney made serious tactical errors preceding the shooting itself. He determined those errors violated Turney's Section 3.13 obligation to use "the highest standard of efficiency and safety" in performing police duties.

C. The Hearing Officer Decigion

Turney appealed the suspension to an administrative hearing officer. The hearing officer conducted a two-week hearing, in which many witnesses testified and many documents and tapes were introduced. The hearing officer ruled the relevant violation had not been sustained and reversed the ten-month suspension. He determined unrelated and less serious violations had been sustained, but that these other violations could support only a five-day suspension. These other rulings are not before us in this appeal.

The hearing officer concluded that "Seetion 8.18 cannot be relied upon to discipline Officer Turney because he was given no previous notice that this provision was intended to apply to tactical decisions in a deadly force context." His opinion "noted that no officer, prior to Officer Turney, hald] ever been disciplined under Section 8.18 ... based upon a claimed faulty use of tactics that led to the use of force." This was so "even though there have been other instances, one as recently as May 2008, in which the [Denver Police] Chief concluded that the officers' poor choice of tactical options might have contributed to the use of deadly force." The hearing officer explained his conclusion was "based upon considerations of due process and innate fairness-no party should be punished for acts or omissions, unless he or she has been given prior notice that they may furnish a basis for punishment."

D. The Commission Decision

The commission reversed the hearing officer and upheld the ten-month suspension. It wrote that "because Operations Manual § 8.18 unambiguously requires police officers to perform their job duties with the highest standard of safety, Officer Turney may not rely upon any due process theories to invalidate the discipline levied against him for [its] violation." And it added that "the training of a Denver Police Officer includes the skill and knowledge to assess whether he or she must escalate or de-escalate the use of force as the immediate situation changes."

The commission found Turney had "failed to understand the totality of the situation, and therefore disregarded the opportunity to de-escalate the force after the situation had changed." It explained that once the others were evacuated from the home:

Paul Childs neither posed any further threat to the family members, nor had he given any indication that he was a threat to himself. As a result, the immediate situation had changed; therefore requiring reassessment to a less threatening situation which would have resulted in the use of less force to remedy the matter.

The commission accordingly concluded that Turney violated Section 3.18 by "failing] to maintain the highest standard of efficiency and safety for Paul Childs as well as for himself."

E. The District Court Decision

The district court, citing the deferential standard of judicial review, affirmed. It concluded the commission had not exceeded its authority or committed any legal error, and that its determination was supported by the record.

II. Discussion

We must decide if the commission "exceeded its jurisdiction or abused its discretion" in upholding Turney's suspension. C.R.C.P. 106(a)(d). This includes review of whether the commission abused its discretion through "application of an erroneous legal standard." Covered Bridge, Inc. v. Town of Vail, 197 P.3d 281, 283 (Colo.App.2008). We "may defer" to but are "not bound by" the commission's construction of code provisions because our "review of the applicable law is de novo." City of Commerce City v. Enclave West, Inc., 185 P.3d 174, 178 (Colo.2008). And we "review void for vagueness challenges de novo." Zelenoy v. Colorado Department of Revenue, 192 P.3d 538, 542 (Colo.App.2008). But our review of the underlying facts is deferential: we will set aside the decision on factual grounds only if the administrative record "is so devoid of eviden-tiary support that [the decision] can only be explained as an arbitrary and capricious exercise of authority." Widder v. Durango School Dist. No. 9-R, 85 P.3d 518, 526-27 (Colo.2004).

A. The Due Process Void-for-Vagueness Challenge

Turney contends the "highest standard of efficiency and safety" provision is unconstitutionally vague. We disagree.

Due process is violated where a provision "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." United States v. Williams, 553 U.S. 285, -, 128 S.Ct. 1830, 1845, 170 L.Ed.2d 650 (2008) (citing Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000)). Mere "generality" does not render a provision unconstitutional because "broad terms" are often necessary to cover "varied cireumstances." Watso v. Colorado Dep't of Social Services, 841 P.2d 299, 309 (Colo.1992).

The "degree of vagueness tolerated by the Constitution depends on the nature of the enactment being challenged." Board of Educ. v. Wilder, 960 P.2d 695, 704 (Colo. 1998) (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). A "stricter test applies" to provisions establishing criminal penalties or threatening to affect First Amendment rights. Id. But "a less stringent vagueness test is required," id., and "greater tolerance" is allowed, Hoffman Estates, 455 U.S. at 498-99, 102 S.Ct. 1186, for provisions that do not affect speech and carry only civil penalties.

Police departments have broad latitude to set and enforce internal standards governing their officers. The "government acting in the role of employer enjoys much more latitude in crafting reasonable work regulations for its employees": for example, it "'may ... prohibit its employees from being "'rude to customers," a standard almost certainly too vague when applied to the public at large."" Greer v. Amesqua, 212 F.3d 358, 369 (7th Cir.2000) (quoting Waters v. Churchill, 511 U.S. 661, 673, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion)); see also Piscottano v. Murphy, 511 F.3d 247, 281 (2d Cir.2007) ("generalized language may appropriately be used to set out standards of conduct for [government] employees"); San Filippo v. Bongiovanni, 961 F.2d 1125, 1136 (8d Cir.1992) ("broad public employee dismissal standards have been upheld against void for vagueness attacks"). The Supreme Court has accorded special "deference" to rules a department "deems the most efficient in enabling its police to carry out the duties assigned to them under state and local law." Kelley v. Johnson, 425 U.S. 238, 246, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976).

Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), upheld an extremely broad federal civil service standard. The Supreme Court rejected vagueness challenges to a statute allowing employees to be fired or suspended "for such cause as will promote the efficiency of the service." Id. at 158-62, 94 S.Ct. 1633 (plurality opinion of Rehnquist, J., joined by Burger, C.J., and Stewart, J.), 164-65, 94 S.Ct. 1683 (Powell, J., joined by Blackmun, J., concurring that statute was not unconstitutionally vague), 177, 94 S.Ct. 16838 (White, J., concurring that statute and regulations were not unconstitutionally vague).

Our supreme court has upheld a Denver Police Department rule allowing punishment for "conduct unbecoming an officer and a gentleman." Hawkins v. Hunt, 113 Colo. 468, 160 P.2d 357 (1945). Hawkins rejected the officer's contention that this standard was "so ambiguous and uncertain as to amount in practice to a nullity." Id. at 475, 160 P.2d at 860; see also Cain v. Civil Service Commission, 159 Colo. 360, 411 P.2d 778 (1966) (upholding discharge of Denver police officer for violating this rule). The large majority of other jurisdictions to consider the issue similarly reject constitutional vagueness challenges to police rules embodying this general standard. See Annotation, Nonsexual Misconduct or Irregularity as Amounting to "Conduct Unbecoming an Officer," Justifying Police Officer's Demotion or Removal or Suspension from Duty, 19 A.L.R.6th 217, §§ 3-4, at 244-50 (2006).

A provision requiring officers to use the "highest standard of efficiency and safety" likewise survives a vagueness challenge. This standard can be applied to evaluate the reasonableness of officers' actions in light of their training. Cf. Cooper v. Civil Service Commission, 43 Colo.App. 258, 261-62, 604 P.2d 1186, 1188-89 (1979) (rule that officers shall not "unnecessarily draw or display" firearms not vague as applied to trained police officers). As Justice Holmes explained in upholding a general reasonableness standard, "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree." Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 57 L.Ed. 1232 (1918); see also Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L.Rev. 67, 98 (1960) ("Many legal responsibilities may be made to turn-as many common-law duties have traditionally turned-upon the 'reasonableness' of conduct as viewed by some trier of fact.").

Turney contends that "never before this case" had tactical errors preceding the use of deadly force "been the subject of discipline" rather than "matters for post-incident critique and further training." This does not establish vagueness. It would be a different matter, raising due process issues under the entrapment-by-estoppel doctrine, had the department affirmatively assured officers they would not be disciplined for poor tactical decisions in this context. See United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 673-74, 93 S.Ct. 1804, 36 LEd.2d 567 (1978) (distinguishing vagueness claim from one that a party "was affirmatively misled by the responsible administrative agency into believing that the law did not apply in this situation"); Raley v. Okio, 360 U.S. 423, 438, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959) ("Here there were more than commands simply vague or even contradictory. There was active misleading."). Turney, however, has not alleged or shown any such affirmative assurances that could rise to this level.

The "real safeguard under a general standard is the common-law adjudicatory process coupled with judicial review." Wishart v. McDonald, 500 F.2d 1110, 1117 (1st Cir. 1974), quoted with approval in San Filippo, 961 F.2d at 1137. The standard here is an objective one providing fair notice, and judicial review is available to ensure it is applied fairly. Cf. Watso, 841 P.2d at 311 (rejecting vagueness challenge because the "good cause standard thus requires objective evaluation of different interests in varied factual contexts, and its application is subject to judicial review").

B. The Non-Constitutional Challenges

1. Commission Review Authority

Turney contends the commission exceeded its authority when it overturned the hearing officer's decision. Denver Municipal Code § 9.4.15(F) "limit[s]" commission review in non-dismissal disciplinary actions to one of four specified grounds. Contrary to Turney's contention, review was authorized by two of those grounds because the hearing officer's decision reasonably could be determined to have rested on "an erroneous interpretation of departmental or civil service rules" and "policy considerations that may have effect beyond the case at hand." § 9.4.15(F)(b) & (c); see also Denver Civil Service Comm'n Rule 12, § 6(C) & (E) (listing same grounds for appeal to and review by commission).

The commission likewise adhered to the requirements that "[all factual findings by the Hearing Officer shall be binding on the Commission, and the Commission may not resolve disputed issues of fact." § 9.4.15(F). The commission accepted the hearing officer's factual findings and did not resolve any disputed issues of historical fact. While it disagreed with the hearing officer's ultimate conclusions as to whether Turney had constitutionally adequate notice and had acted in a manner reasonably expected of Denver police officers, these determinations involved mixed questions of law and fact on which the hearing officer did not have the final word. Cf. Ornelas v. United States, 517 U.S. 690, 696-98, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (lower court rulings whether police acted reasonably under the Fourth Amendment are subject to de novo review); People v. Gonzales, 987 P.2d 289, 242 (Colo.1999) (trial court's "application of a legal standard to historical fact is a matter for de novo appellate review").

2. The Legal Standards Turney's Actions Governing

Turney contends his actions before the shooting must be reviewed under the use-of-force policy rather than under the seetion 8.13 "efficiency and safety" provision. We hold the department is not legally precluded from using section 3.18 to review the propriety of its officers' tactical decisions preceding an actual use of force.

Denver's public safety managers historically have interpreted the use-of-force policy to cover only the circumstances existing at the moment force was used. The policy refers to the "immediate situation" surrounding the force, and goes on to discuss Colorado erimi-nal statutes and case law: it states, in part, that "Colorado law does not require an officer to retreat from an attack rather than resorting to physical force." Operations Manual § 105.0008) (citing Boykin v. People, 22 Colo. 496, 45 P. 419 (1896)). Denver District Attorneys, investigating this and other police shootings, similarly have construed Colorado criminal self-defense laws to limit consideration to the "final frame" instant when shots were fired.

Turney contends the manager's construction is wrong because the policy also incorporates federal standards-applied in Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); and Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)-requir-ing that police use of force be reasonable. According to Turney, federal law, as construed in Tenth Circuit cases such as Bella v. Chamberlain, 24 F.3d 1251, 1256 n. 7 (10th Cir.1994), considers some preceding events in evaluating the reasonableness of force. This is debatable: federal appellate courts are "in conflict ... with respect to whether and to what extent pre-seizure conduct must be taken into account in assessing the reasonableness of police use of force." Michael Avery, Unreasonable Seizures of Unreasonable People: Defining the Totality of Circumstances Relevant to Assessing the Police Use of Force Against Emotionally Disturbed People, 34 Columbia Hum. Rts. L.Rev. 261, 282 (2008).

In any event, the question is not whether pre-shooting tactics potentially could violate the department's use-of-force policy, Colorado self-defense law, or federal law. We accept the manager's interpretation that pre-shooting tactics fall outside the use-of-foree policy not because we are convinced it is incontrovertibly correct but because it is the interpretation relied on to discipline Turney.

The question is whether pre-shooting tactics potentially could violate a different department policy. We answer that affirmatively. Nothing in the use-of-foree policy makes it the exclusive basis for evaluating officer tactics preceding a use of force. And 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.

8. Turney's Remaining Contentions

Turney contends the commission erred by construing the section 8.18 "highest standard" provision to require that he use "ideal" rather than simply "reasonable" tactics. We do not construe the opinion as requiring officers to do anything more than act reasonably and consistently with their training. The commission concluded Turney "failed to understand the totality of the situation, and therefore disregarded the opportunity to deescalate the force after the situation had changed" with the removal of everyone but Paul from the home. This conclusion, if supported, would mean that Turney acted unreasonably.

There was adequate support in the administrative record for an ultimate determination that Turney acted unreasonably. The manager, police chief, and an outside expert testified that Turney should have allowed the outer security door to close to create an additional barrier and provide additional time to evaluate an action plan onee no lives were at risk. Turney provided contrary evidence that could have supported a determination that he acted reasonably under the fast-developing cireumstances of the case. But it is not a reviewing court's responsibility to make this determination. We uphold the commission's determination because it was not "devoid of evidentiary support," Widder, 85 P.3d at 526-27.

Turney challenges the commission's statement that better tactics "would have resulted in the use of less force to remedy the matter." (Emphasis added by Turney.) Turney contends that while a temporary retreat following evacuation of the other occupants "may have resulted in a peaceful resolution," there is no way of knowing this "would absolutely have been the case." We decline to overturn the commission's determination simply because its opinion used the word "would" rather than "could." The ruling did not depend on what "would" have happened had better tactics been used but rather on a determination that Turney's tactics were unreasonable under the cireumstances.

Turney finally contends that the commission disregarded due process when it wrote that he "may not rely upon any due process theories to invalidate the discipline levied against him for violation" of section 3.13. This statement must be read in context: the commission explained the reason Turney could not do so was "because Operations Manual § 3.18 unambiguously requires police officers to perform their job duties with the highest standard of safety." While it might have been more felicitous to write that due process was not violated rather than that Turney may not rely on due process theories, the language challenged by Turney is not grounds for reversal. We have conducted de novo review of Turney's due process contentions and, as set forth above, have concluded that Section 8.18 was applied consistently with Turney's constitutional rights to due process.

IIL. Conclusion

The judgment is affirmed.

Judge CASEBOLT concurs. Judge ROY dissents.