v. City & Cty of Denver

2018 COA 43, 417 P.3d 963

• Court: Colorado Court of Appeals
• Decided: March 22, 2018
• Docket: 17CA0235, Johnson
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY March 22, 2018

2018COA43

No. 17CA0235, Johnson v. City & Cty of Denver — Municipal Law — City and County of Denver — Police — Use of Force — Disciplinary Appeals — Standard of Review

In this officer discipline case, a division of the court of appeals

holds, as a matter of first impression, that under the standards of

review set forth in the Denver City Charter and the Denver Civil

Service Commission Rules, the Civil Service Commission must defer

to a hearing officer’s findings of evidentiary fact and may not rely on

a video exception not contained in those standards of review

because that exception is contrary to law. The division further

holds that the Denver Police Department’s use of force policy

articulates a single standard for reviewing an officer’s use of force

and that separate standards do not exist for deadly and non-deadly

force. The division finally concludes that while the Civil Service Commission erred in relying on the video exception to reverse the

hearing officer’s decision, it nonetheless reached the correct result

for two reasons. First, the hearing officer erroneously concluded

that separate standards for deadly and non-deadly force existed and

erroneously applied that standard. Second, the hearing officer did

not properly defer to the Manager of Safety’s findings as required by

the standard of review applicable to hearing officers and set forth in

the Denver Civil Service Commission Rules. Accordingly, the

division affirms the district court’s judgment affirming the order of

discipline. COLORADO COURT OF APPEALS 2018COA43

Court of Appeals No. 17CA0235 City and County of Denver District Court No. 15CV31660 Honorable J. Eric Elliff, Judge

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.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE FREYRE Bernard and Berger, JJ., concur

Announced March 22, 2018

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 ¶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.

1 ¶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

1 The Denver Manager of Safety delegated to the Deputy Manager of Safety the responsibility of reviewing the Chief of Police’s written command ordering discipline against Officer Johnson. We nevertheless use the shorthand “MOS” to refer to the Deputy Manager of Safety. 2 We also briefly discuss the City and County of Denver’s contention

that the hearing officer applied the wrong use of force standard.

2 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

3 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,

3 No audio was recorded. 4 The video also shows patrons walking by and the nightclub’s

bouncer in the background, but none of these individuals were part of the events leading to the officer’s use of force.

4 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

5 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.

6 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.

7 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.

8 ¶ 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

5 Under this standard, the appropriate consideration for an appellate court is whether there is sufficient evidentiary support in the record for the administrative body’s decision, not whether there is adequate evidence to support the decision of the district court. Ross v. Fire & Police Pension Ass’n, 713 P.2d 1304, 1309 (Colo. 1986).

9 [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

6 We recognize that in criminal cases involving suppression of evidence issues, this court may review video evidence de novo. See People v. Ramadon, 2013 CO 68, ¶ 21(When an interrogation is video or audio recorded and there are no disputed facts outside the recording pertinent to the suppression ruling, we are in the same position as the trial court in deciding the suppression issue.); People v. Springsted, 2016 COA 188, ¶ 16 (same). However, our standard of review is not at issue in this appeal. As we explain below, the Denver City Charter places express limits on the Commission’s standard of review that do not apply to state courts.

10 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;

11  Brandon had used his hands in a threatening manner;

and

 he was concerned that Brandon had a weapon in his

pocket.

¶ 19 The Commission found the video showed that Officer Johnson

never acted concerned with anyone’s behavior, that no one acted in

a threatening or aggressive manner toward Officer Johnson, and

that for no apparent reason, Officer Johnson suddenly moved in

front of Brandon and shoved him to the ground.

HALO Video at 4:19.

12 HALO Video at 4:20.

HALO Video at 4:21.

13 HALO Video at 4:22.

¶ 20 Relying in part on the video exception, and its own findings of

the circumstances confronting Officer Johnson (rather than

accepting the hearing officer’s findings of fact), the Commission

concluded that the hearing officer erred in reversing the MOS’s

decision and that ample evidence supported the imposition of

discipline.

2. Commission’s Standard of Review

¶ 21 The Commission’s review of a hearing officer’s findings and

conclusions is governed by Charter section 9.4.15 and Denver Civil

14 Service Commission Rule 12, section 11(J)(5).7 The Charter

provides the following:

In deciding the appeal, the Commission shall rely only upon the evidence presented to the Hearing Officer except when the appeal is based on new and material evidence. All factual findings by the Hearing Officer shall be binding on the Commission, and the Commission may not resolve disputed issues of fact.

Charter § 9.4.15(F).

¶ 22 The Civil Service Rules provide that

[a]ll findings of evidentiary fact by the Hearing Officer shall be binding on the Commissioners. The Commissioners may not resolve disputed issues of fact.

Denver Civil Serv. Comm’n Rule 12, § 11(J)(5).

7 We recognize that Nixon v. City & Cty. of Denver, 2014 COA 172, ¶ 25, applied the standard of review found in Colorado’s Administrative Procedure Act, section 24-2-105(15)(b), C.R.S. 2014, in an appeal involving the Commission’s decision to uphold the termination of a Denver police officer. But Nixon is distinguishable. Nixon did not discuss the issue of whether the Administrative Procedure Act should be applied to the Commission’s decisions; the division simply assumed that it was “bound . . . by section 24-4-105(15)(b) . . . .” But that issue has taken center stage in this case, and we have decided that the Administrative Procedure Act does not apply. See § 24-4-107, C.R.S. 2017 (“[The APA] applies to every agency of the state having statewide jurisdiction . . . .” (emphasis added)).

15 ¶ 23 Additionally, Charter section 9.4.15(F), on which Officer

Johnson relies, provides that the Commission’s review of a hearing

officer’s decision is limited to: (1) considering new and material

evidence; (2) deciding whether the hearing officer erroneously

interpreted departmental or civil service rules; (3) weighing policy

considerations that may have an effect beyond the case at hand;

and (4) deciding whether the discipline affirmed or imposed is

inconsistent with the discipline other officers received under similar

circumstances.8

¶ 24 We interpret municipal regulations as we do statutes. See

Marshall, ¶ 12 (“[W]hen interpreting a [municipal] charter courts

apply the principles of statutory interpretation.”). We apply the

plain meaning of the language as written and may not add language

that does not exist. See Williams v. Dep’t of Pub. Safety, 2015 COA

180, ¶ 85 (“[W]hen interpreting a statute, ‘we must accept the

General Assembly’s choice of language and not add or imply words

8 Rule 12 of the Denver Civil Service Commission provides the same bases for appeal and grounds for the Commission’s review except for policy considerations that may have an effect beyond the case at hand. Denver Civil Serv. Comm’n Rule 12, § 11(D).

16 that simply are not there.’” (quoting People v. Benavidez, 222 P.3d

391, 393-94 (Colo. App. 2009))).

3. Application of the Standard of Review

¶ 25 Both the Charter’s and the Rules’ standards of review govern

the Commission’s review of the MOS’s order and the hearing

officer’s findings. They require the Commission to defer to the

hearing officer’s evidentiary findings of fact, and they preclude the

Commission from resolving disputed issues of fact. They say

nothing about deferring to a hearing officer’s findings of fact unless

those facts are contradicted by authenticated video evidence. While

a video exception to the standard of review may make eminent

sense in today’s world, this decision is for the Denver voters to

make, not the Commission or the courts. See Colo. Const. art. XX,

§ 5 (“The citizens of the city and county of Denver shall have the

exclusive power to amend their charter . . . .”); Charter § 9.3.4 (“The

Commission shall have the power to make and enforce rules

consistent with its rule-making process (which shall include a

requirement that proposed rules be posted prior to adoption), and

its Charter-mandated duties, powers, and responsibilities.”).

17 ¶ 26 The Commission simply does not have the authority to amend

the Charter’s standard of review. Therefore, we conclude that the

video exception is contrary to law and invalid, and that both the

Commission and the district court erred in relying on it to reverse

the hearing officer’s decision.9

C. The Department’s Use of Force Standard, Not the Fourth Amendment, Applies to an Officer’s Use of Force

¶ 27 The Commission concluded that the hearing officer had clearly

erred in finding a “deadly force/non-deadly force dichotomy” from

two United States Supreme Court cases, and that the Department

was free to establish more stringent standards than the

constitutional baselines articulated in those cases. We agree.

¶ 28 The Charter authorizes the Department to promulgate and

enforce rules governing the conduct of law enforcement officers.

Charter § 9.4.13. The police department’s RR-306 states, “[o]fficers

shall not use inappropriate force in making an arrest or in dealing

9 We also reject Officer Johnson’s contention that the Commission violated Charter section 9.4.15(F) because the Commission specifically addressed the hearing officer’s erroneous interpretation of the use of force policy under section 9.4.15(F)(a) and the public’s perception of its officers’ use of force under Charter section 9.4.15(F)(c). He does not cite nor have we found any authority requiring findings under all four sections of section 9.4.15(F)(a)-(d).

18 with a prisoner or any other person.” The Denver Police

Department Operations Manual (OMS) sets forth the Department’s

use of force policy. As relevant here, it provides:

 “[A]n officer shall use only that degree of force necessary

and reasonable under the circumstances.” OMS

§ 105.01(1)(a), https://perma.cc/SVG2-L743 (emphasis

added).

 “Officers should ensure that they do not engage in

unreasonable actions that precipitate the use of force as

a result of tactical, strategic, or procedural errors.” Id.

(emphasis added).

 “The reasonableness inquiry in an excessive force case is

an objective one; the question is whether the officers’

actions are objectively reasonable in light of the facts and

circumstances confronting them.” Id.

 “The reasonableness of a particular use of force must be

judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.”

Id.

19  “Use of force that is not lawful, reasonable and

appropriate will not be tolerated.” OMS § 105.01(1)(b).

 “The level of force applied must reflect the totality of

circumstances surrounding the immediate situation.” Id.

 “The officer need only select a level of force that is within

the range of ‘objectively reasonable’ options.” Id.

¶ 29 These provisions establish a standard to be applied in

reviewing an officer’s use of force: (1) whether the use of force was

necessary; and (2) whether the use of force was reasonable. And

that determination is informed by the totality of the circumstances

surrounding the use of force. OMS § 105.01(4). This provision

provides:

1. The reasonableness of an officer’s use of force under the Fourth Amendment requires careful attention to the totality of the facts and circumstances known by the officer prior to using force, including: a. The severity of the crime at issue and b. Whether the suspect poses an immediate threat to the safety of the officer(s) or others and c. Whether the suspect is actively resisting arrest or attempting to evade arrest by the flight.

OMS § 105.01(4)(c).

20 ¶ 30 First, we agree with the Commission that the Department was

free to adopt a policy that applies a more stringent standard than

the baseline constitutional standard. See Turney, 222 P.3d at 350

(noting that 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”);

see also Harris v. City of Colorado Springs, 867 P.2d 217, 219 (Colo.

App. 1993) (observing that a police officer is held to a higher

standard of conduct because he or she is “a trustee of the public

interest, bearing the burden of great and total responsibility to his

[or her] public employer” (quoting Gardner v. Broderick, 392 U.S.

273, 277 (1968))); see also Graham, 490 U.S. at 395 (articulating

the constitutional standard and holding that “all claims that law

enforcement officers have used excessive force — deadly or not — in

the course of an arrest, investigatory stop, or other ‘seizure’ of a free

citizen should be analyzed under the Fourth Amendment and its

‘reasonableness’ standard, rather than under a ‘substantive due

process’ approach”).

¶ 31 Second, we also agree with the Commission that the hearing

officer erred in finding that the “20/20 hindsight” language created

21 a separate non-deadly force standard and in applying only that

standard to the evidence. As is evident from the OMS, this

particular language simply qualifies the objectively reasonable

standard and instructs a reviewer of the officer’s use of force to

consider what is objectively reasonable from the perspective of a

reasonable officer on the scene, under all the attendant

circumstances. Accordingly, the Commission correctly determined

that the hearing officer erred in her application of the use of force

standard.

D. Sufficient Evidence Supports the Commission’s Decision and the Discipline Imposed

¶ 32 Our conclusion that the video exception constitutes an invalid

basis for the Commission to reject the hearing officer’s factual

findings does not end this case, because we must also decide

whether the Commission nevertheless reached the right result for

the wrong reasons. See Blood v. Qwest Servs. Corp., 224 P.3d 301,

329 (Colo. App. 2009) (noting that the court of appeals can affirm

on any grounds supported by the record), aff’d, 252 P.3d 1071

(Colo. 2011); Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe, 107

22 P.3d 402, 406 (Colo. App. 2004) (“[W]e may affirm the trial court’s

ruling based on any grounds that are supported by the record.”).

¶ 33 To answer this question, we must examine whether the

hearing officer applied the correct standard of review to the MOS’s

findings in concluding that “no credible evidence” supported the

discipline. We requested supplemental briefing on this issue.

¶ 34 Officer Johnson contends that the hearing officer is only

required to defer to the MOS’s decisions concerning the

Department’s policies, and that the hearing officer otherwise finds

evidentiary facts de novo. The City agrees that the hearing officer

must defer to the MOS’s findings concerning department policy, but

counters that the hearing officer may only set aside the MOS’s

factual determinations when “the decision, although supported by

the evidence, is contrary to what a reasonable person would

conclude from the record as a whole,” under Denver Civil Service

Commission Rule 12, section 9(B)(1)(c)(i). We agree with the City.

1. Hearing Officer’s Standard of Review

¶ 35 A hearing officer may reverse the MOS’s decision only when it

finds that decision to be “clearly erroneous.” Denver Civil Serv.

23 Comm’n Rule 12, § 9(B)(1)(b). The Rule defines “clearly erroneous”

as follows:

A Departmental Order of Disciplinary Action shall be deemed to be “clearly erroneous”, in whole or in part, in the following circumstances:

(i) The decision, although supported by the evidence, is contrary to what a reasonable person would conclude from the record as a whole;

(ii) If the Manager fails to follow the applicable Departmental guidelines, rules or regulations, an applicable matrix or its associated guidelines, and absent such failure the discipline imposed would not have resulted; or

(iii) If the Manager otherwise exceeds his authority.

Denver Civil Serv. Comm’n Rule 12, § 9(B)(1)(c).

¶ 36 Moreover, when reviewing the Department’s disciplinary

action, the Rule further provides that

Hearing Officers shall not substitute their judgment for that of the Executive Director of Safety concerning any policy considerations underlying the discipline, to include the interpretation of Departmental Rules and Regulations, and may only reverse or modify the Manager’s decision concerning policy considerations when it is shown to be clearly erroneous. Hearing Officers shall not

24 substitute their judgment for that of the Executive Director of Safety in determining the appropriate level of penalty to be imposed for a sustained violation, and may only modify the disciplinary penalty imposed when it is shown to be clearly erroneous.

Denver Civil Serv. Comm’n Rule 12, § 9(B)(1)(a).

¶ 37 Although the Charter and the Rules are far from clear

regarding when a hearing officer may set aside the discipline

ordered by the Department (through the MOS), it is apparent that

this is not a de novo hearing in which no deference is given to the

MOS’s findings and imposition of discipline. See, e.g., Tilley v.

Indus. Claim Appeals Office, 924 P.2d 1173, 1177 (Colo. App. 1996)

(“In unemployment proceedings, the hearing officers are required to

assess the evidence independently and reach their own conclusions

concerning the reason for the separation from employment, the

probative value of the evidence, the credibility of the witnesses, and

the resolution of any conflicting testimony.”); Marlin Oil Co. v. Indus.

Comm’n, 641 P.2d 312, 313 (Colo. App. 1982) (“An administrative

appeal in an unemployment compensation case is a review of the

case in its entirety, and the hearing is, in effect, a trial de novo.”).

25 ¶ 38 As we read the Charter and the Rules, the hearing officer must

defer to the MOS’s determination of the propriety of the imposition

of discipline unless that decision is clearly erroneous. Under the

clearly erroneous standard, a hearing officer may only set aside the

discipline imposed when the MOS’s decision is 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); see Charter

§ 9.4.15(D) (“In reviewing the disciplinary action, the Hearing

Officer shall give due weight to the necessity of the maintaining by

the Manager of administrative control of the department. The

Hearing Officer shall review the full record before him or her and

shall make written findings, affirming, reversing, or modifying the

disciplinary action in whole or in part.”). The MOS must make a

prima facie showing in support of its order. Marshall, ¶ 15 (finding

that Denver Civil Service Commission Rule 12, section 8(D)(2)

requires the Department to present to a hearing officer “sufficient

evidence to create a reasonable inference of the correctness of the

sustained Rule violation(s)”).

¶ 39 The burden of proving that the MOS’s discipline order was

clearly erroneous rests with the officer seeking the reversal of that

26 order. See Denver Civil Serv. Comm’n Rule 12, § 8(D)(3) (explaining

that the petitioner shall be considered the proponent of an order

seeking the modification or reversal of the discipline imposed); see

also § 24-4-105(7), C.R.S. 2017 (noting that the proponent of an

order shall have the burden of proof).

¶ 40 Viewing the record before the hearing officer, which includes

the HALO video, as well as the statements of the various

participants in this matter, we cannot conclude that either the MOS

failed to present a prima facie case to support the discipline

imposed or that his decision was contrary to what a reasonable

person would conclude from the record as a whole.

¶ 41 For instance, the undisputed evidence shows that Brandon

verbally berated Officer Johnson and refused to leave the area, but

no one described him taking physical actions against Officer

Johnson until after he was pushed. Officer Johnson told the

internal investigators that he decided to “close the gap” between

himself and Brandon after telling Brandon he was going to detox.

He further admitted that he “got too close” and was “in too deep.”

He said he needed to create some distance between them and that

he shoved Brandon to create that distance. When the investigators

27 asked why he did not create that distance by taking a step back,

Officer Johnson responded that he reverted to his training “not to

give up ground.”

¶ 42 The undisputed evidence further reveals that the nightclub’s

bouncer was a short distance away from the group, was available to

assist Officer Johnson throughout the encounter, and, at one point,

approached Officer Johnson to ask whether he needed assistance.

Officer Johnson told the internal investigators, “[I] didn’t have to

call for [police] back-up. I figured, hey, take care of the situation

fast so it doesn’t prolong – so it doesn’t go longer.” He did not recall

whether he considered asking the bouncer for assistance.

¶ 43 Applying the Department’s use of force standard to these and

the remaining facts, the MOS found that Officer Johnson’s decision

to “close the gap” was not reasonable or necessary to perform his

duties and that it was more reasonable to maintain distance in

order to better assess a potential threat. He further found that it

was neither reasonable nor necessary for Officer Johnson to create

distance by shoving Brandon when he could have safely stepped

back in accordance with departmental policy concerning retreat and

repositioning. And, he noted that the Department’s use of force

28 policy “is more restrictive than the ‘objective reasonable’ standard.”

Thus, he also found that Officer Johnson could easily and

reasonably have summoned additional assistance.

¶ 44 The hearing officer never considered whether the MOS’s

decision was clearly erroneous, because she instead found that he

had failed to offer “sufficient evidence to create a reasonable

inference of the correctness of the sustained Rule violation” — in

other words, that he had not established a prima facie case. She

reached this conclusion based on her findings that: (1) Brandon

was pushed onto stairs leading up rather than down; (2) no

evidence showed that Officer Johnson was angry or impatient; (3)

the technique employed by Officer Johnson was a proper arrest

control technique; (4) the MOS erroneously considered whether

Brandon posed a “credible threat” to officer safety because that was

the inapplicable deadly force standard; and (5) the MOS erroneously

applied the deadly rather than the non-deadly force standard in

reaching his decision.

¶ 45 However, we have already concluded that the MOS properly

applied the Department’s use of force standard. We further

conclude that the undisputed evidence to which he applied that

29 standard is sufficient to create a reasonable inference in the

correctness of the sustained rule violation and that his decision was

not clearly erroneous.

¶ 46 The hearing officer improperly substituted her judgment for

the MOS’s in concluding otherwise, contrary to the standards set

forth in the Charter and Denver Civil Service Commission Rule 12.

¶ 47 Under our deferential standard of review, we cannot conclude

that the Commission abused its discretion in reversing the hearing

officer’s decision based on the record as a whole, including the

video evidence. While different people may have different reactions

to the HALO video, the Charter and accompanying Rules require the

hearing officer to defer to the Department’s interpretation of its own

policies. While the Commission is bound by the hearing officer’s

evidentiary findings, it reviews for clear error the hearing officer’s

ultimate conclusions of fact — here whether the hearing officer

applied the proper use of force standard and whether competent

evidence supported the Department’s imposition of discipline,

absent the video exception. Thus, while we find legal error in the

Commission’s reliance on the video exception, we nevertheless

conclude that the remaining record before the Commission and the

30 hearing officer supports the Commission’s decision and the

Department’s imposition of discipline.

III. Conclusion

¶ 48 The judgment is affirmed.

JUDGE BERNARD and JUDGE BERGER concur.