DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO Court Address: 1437 Bannock St.

, Denver, CO 80202 In re the Marriage of: Plaintiffs, ALEX MARTINEZ et al. And Defendants, KEVIN DEVINE et al.
COURT USE ONLY
DATE FILED: September 26, 2013 4:27 PM

Case Number: 12CV6760 Ctrm: 331

ORDER

THIS MATTER is before the Court on (1) Plaintiffs, Alex Martinez, as Manager of Safety of the City and County of Denver, Charles F. Garcia, as former Manager of Safety of the City and County of Denver, and the City and County of Denver, a municipal corporation (collectively the City), COMPLAINT FOR JUDICIAL REVIEW PURSUANT TO C.R.C.P. 106(a)(4) AND DECLARATORY JUDGMENT PURSUANT TO C.R.C.P. 57 AND C.R.S. 13-51-101 et. seq. and (2) Defendant Kevin Devines (Devine) COMPLAINT FOR JUDICIAL REVIEW PURSUANT TO C.R.C.P. 106(a)(4). The Court issued an Order on March 1, 2013, consolidating the two appeals into this case. The Court, having reviewed the Opening Briefs, Responses, and Replies, the Case File, the transcript including the videos, the relevant legal authorities, and being otherwise fully advised, makes the following findings, conclusions, and orders: Background The events surrounding this case occurred on July 12, 2009, at approximately 1:45 a.m. at the Denver Diner (Diner) and were captured on a High Activity Location Observation (HALO) camera. Decision and Final Order, Charles F. Garcia v. Kevin Devine and Ricky Nixon, Case No. 11 CSC 05A & 06A, October 11, 2012 (Commission Decision). Officer Ricky Nixon (Nixon) was present at the Diner in an off-duty capacity, in full uniform. Id. at p. 2. Upon investigation of an altercation in the 1

womens bathroom, Nixon determined Kristal Carrillo had assaulted another woman. Id. Nixon placed Ms. Carrillo in handcuffs and led her outside of the Diner. Id. As a few people gathered, Nixon placed two Code 10 calls requesting immediate assistance. Id. at p. 3. Devine was the first officer to respond to the scene. Id. The HALO video shows the events as they unfolded. The undisputed video evidence shows a physical confrontation between the Officers1 and a number of women. Due to the physical altercation, Nixon was required to prepare a use of force report, and a Departmental investigation of the incident proceeded. Id. at 4. Following an investigation by the Denver Police Department (DPD) Internal Affairs Bureau, former Manager of Safety, Charles Garcia (Manager) issued Departmental Order of Disciplinary Action that terminated both officers employment for violating RR-112.2 ( Commission of a Deceptive Act), and suspended both officers without pay for violating RR-306 ( Inappropriate Force). The Officers both timely appealed the Managers disciplinary orders to the Denver Civil Service Commission (Commission). Pursuant to Commission Rule 12, section 4.b., a panel of three hearing officers (Panel) held an evidentiary hearing and issued its Findings, Conclusions, Decision, and Order on January 13, 2012, (Panel Decision). The Panel Decision found that neither Devine nor Nixon violated RR-112.2, and as a result, it reversed their terminations and reinstated the Officers. CSC 314-34. The Panel Decision also found that Devine did not violate RR-306 and therefore it reversed his suspension. Id. The Manager appealed the Panels decisions concerning RR-112.2 (both Officers) and RR-306 (for Devine) to the full Commission. The Commission reviewed the record and issued a final decision on October 11, 2012. The Commission Decision affirmed the Panel Decision in part and reversed it in part. The decision affirmed the Panels finding that neither Officer violated RR-112.2, but it reversed the Panels finding on RR-306 for Devine. Therefore, Devines suspension was reinstated. The City and Devine filed separate appeals of the Commission Decision to the District Court pursuant to Rule 106(a)(4), which were subsequently consolidated into the above captioned case. On April 4, 2013, the Court approved the Parties joint

Officers is used throughout this Order to refer collectively to Officers Devine and Nixon.

stipulation to dismiss without prejudice the Citys Second Cause of Action for Declaratory Judgment under C.R.C.P. 57 and C.R.S. 13-15-101. Standard of Review A courts review under C.R.C.P. 106(a)(4) is limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion. A reviewing court is primarily concerned with whether the agency has regularly pursued its authority; whether its decisions are just and reasonable; and whether its conclusions are in accordance with the evidence. Stevinson Imports, Inc. v. City & Cnty. of Denver, 143 P.3d 1099, 1101 (Colo. App. 2006). An administrative agency or governmental entity exceeds its jurisdiction or abuses its discretion only if it misapplies the law or if there is no competent evidence in the record to support its decision. Bd. of County Commrs v. Conder, 927 P.2d 1339, 1343 (Colo. 1996); see also Puckett v. City of County of Denver, 12 P.3d 313, 314 (Colo. App. 2000) (reviewing court may not reweigh evidence); State Civil Serv. Comm'n v. Hazlett, 119 Colo. 173, 178, 201 P.2d 616, 619 (1948) (reviewing court not permitted to substitute its judgment where there is competent evidence in the record to support an agency decision). A court may reverse final agency action when unsupported by substantial evidence. Stevinson, 143 P.3d at 1101 (citing Nededog v. Colo. Dep't of Health Care Policy & Fin., 98 P.3d 960, 961 (Colo. App. 2004)). Review of a governmental bodys interpretation of the law is de novo. Treece, Alfrey, Musat & Bosworth, PC v. Dep't of Fin. , 298 P.3d 993, 996 (Colo. App. 2011) cert. denied, 11SC967, 2012 WL 3642414 (Colo. Aug. 27, 2012) (citing Talbots, Inc. v. Schwartzberg, 928 P.2d 822, 823 (Colo. App. 1996)). Whether an order is supported by adequate findings of fact [] is a question of law. Stevinson, 143 P.3d at 1101. Additionally, an administrative bodys findings concerning mixed question on law and fact are not binding on the reviewing court. Id. Discussion Pursuant to Denver City Charter 9.4.15(F), the Commission may review a hearing officer's or panels decision in limited circumstances, such as when: . . . the decision of the hearing officer involves an erroneous interpretation of departmental or civil service rules, [or] the decision of 3

the hearing officer involves policy considerations that may have effect beyond the case at hand. . . . Woods v. City & Cnty. of Denver, 122 P.3d 1050, 1052 (Colo. App. 2005) (quoting Denver Charter 9.4.15(F)). As the Commission explained in its decision, this appeal involves the interpretation and application of the Denver Police Departments Operations Manual, and policy considerations associated with departmental discipline. Commission Decision at p. 8. On appeal, the Denver Charter requires that all factual findings by the hearing officer shall be binding on the Commission. Denver Charter 9.4.15(F). The Commission, however, is not required to accept the Panels conclusions of law or mixed questions of law and fact that determine liabilities of the Officers. Woods, 122 P.3d at 1053. Neither is the District Court. Id. The Court finds that the Panel and Commission both misapplied the videotape evidence in reaching their ultimate conclusions. The Panel, in particular, resolved a number of conflicts between the video and eyewitness statements in favor of the eyewitness (Officers) version. The Panels Opinion undermined the HALO videos applicability because it contained no audio to determine the language and atmosphere of the scene and did not take a complete view of the scene. CSC 317. Although those concerns may be relevant to certain issues, this appeal deals with physical acts that were captured on video. Colorado courts have not specifically weighed in on how to resolve a conflict between videotape evidence and eyewitness testimony, and thus the Court has looked to other authority on the issue. In Scott v. Harris, 550 U.S. 372 (2007), the United States Supreme Court reviewed a summary judgment motion where the videotape evidence directly contradicted the version of a party. The respondent in Scott claimed that during a car chase, there was little, if any, actual threat to pedestrians or other motorists, as the roads were mostly empty and [respondent] remained in control of his vehicle, while the videotape clearly showed respondent's vehicle racing down narrow, two-lane roads in the dead of night at speeds that [were] shockingly fast. Id. at 378. The Court ultimately held, in ruling on a motion for summary judgment, that when a partys version of events was utterly discredited by video evidence, the lower court should view the facts in the light depicted by the videotape. Id. See also Morton v. 4

Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013) ([W]here an accurate video recording completely and clearly contradicts a partys testimony, that testimony becomes incredible.). Here, a HALO camera captured each instance of alleged excessive force. The Parties do not dispute the accuracy of the HALO video; thus, the Court shall review the Commissions decision in light of the Panels findings, but shall disregard any findings that directly contradict the HALO video. The Commission therefore abused its discretion if the only evidence supporting a conclusion was testimony or Panel findings that directly conflict with the video evidence. A. RR-306 Devine appeals the Commissions decision to reinstate his violation of RR-306. RR-306 of the Operations Manual states, Officers shall not use inappropriate force in making an arrest or in dealing with a prisoner or any other person. Commission Decision at p. 5 n. 2. Devine argues that the Commission Decision did not apply the appropriate standard of review for a hearing officers findings under Denver Charter 9.4.15(F) because it (1) did not adequately explain the basis for its conclusions and (2) was in excess of its jurisdiction. Devine claims that the Commission ignored binding factual findings and improperly conducted its own independent review of the entire record. Given the Panels previous findings, he asserts, the Commission Decision was either arbitrary or capricious or in excess of its authority. The City responds that Charter 9.4.15(F) requires an appellant explain the basis for appeal and that the requirement does not apply to the reviewing bodys written opinion. The City further argues that the Commission was entitled to independently decide issues of law or mixed questions law and fact, such as the determination of unreasonable force, de novo. In reaching its Decision, the Commission adopted the facts set forth in the Panel Decision. Id. at p. 2. The Commission Decision states that [a]fter an extensive review of the HALO video and the testimony adduced at hearing, the Commission reverses the Panel on this issue and finds the City established that Officer Devine engaged in the inappropriate use of force against Ms. Thomas, Ms. Boren, and Ms. Perez. Id. at p. 9.

As an initial matter, the Court finds that the Commission Decision adequately addressed the basis for its conclusions on RR-306. The Court finds that the Commission, appropriately, reviewed all the evidence, including the HALO video. The Commission accepted the Panels findings on what was said on the ground, see id. at p. 8-9, but came to a different ultimate conclusion on whether Devines actions met the standard of excessive force under RR-306. Upon review, the Court finds that a number of the Panels factual findings addressed mixed questions of law and fact and/or were inconsistent with the HALO video. The Panels findings that the Officers handled the situation in an appropriate manner and employed no undue force, CSC 328, for example, are mixed questions of law and fact. Therefore, the Commission did not exceed its jurisdiction in resolving these issues. The Court finds that the HALO video objectively depicts Devine grabbing and pulling Ms. Thomas to the ground, shoving Ms. Boren hard enough that her feet came off the ground, and violently forcing Ms. Perez to the ground. The images of the confrontation are in plain view on the HALO video. Those women were also clearly unarmed and/or in handcuffs at the time Devine applied that force. The Commission did not abuse its discretion in making a determination that the Panel improperly applied the excessive force standard to the facts in this case. The Commissions conclusion that Devines actions constituted unreasonable force was supported by the record as a whole. Accordingly, the Court upholds the Commissions decision to reinstate the Managers finding that Devine violated RR-306. The Managers disciplinary orders associated with that violation (the suspension) shall thus remain reinstated. B. RR-112.2 The Manager initially found both Officers made misstatements or omissions in violation of RR-112.2, the Panel later overturned the decision, and the Commission ultimately upheld the Panel on that portion of its Order. RR-112.2 of the Operations Manual states, In connection with any investigation or any judicial or administrative proceeding, officers shall not willfully, intentionally, or knowingly commit a material deceptive act, including but not limited to departing from the truth verbally, making a false report, or intentionally omitting information. Commission Decision at p. 5 n. 5.

The City argues that the Commissions decision was arbitrary and capricious because it accepted the Panels conclusions, which were irreconcilable with the HALO video and the Officers reporting of the incident. Devine and Nixon respond that the Commission correctly deferred to the Panels credibility determinations and therefore had no basis to reinstate the disciplinary orders. The Commission found that application of RR-112.2 requires an inquiry into the Officers state of mind. Id. at p. 11. The Commission thus determined that it lacked the authority to overturn the Panels conclusions because the Panel found the Officers statements (that they did not intend to deceive) credible. The Panel specifically found that Officers Devines and Nixons statements and testimonies were consistent with what happened and were not deceptive. CSC 323 (emphasis added). The Panel further found that Officer Nixons omissions in the Use of Force Report were not deceptive because he included some physical confrontations and did not exclude all acts of violence. CSC 324. The Court finds that the Commission should have determined whether the record as a whole supported the Panels conclusion that the Officers did not willfully, intentionally, or knowingly committed a material deceptive act. As the nearly twoyear long investigation demonstrates, DPD regulations require Police officers to adequately report the use of force. The Commission should not have relied on the Panels finding that a chaotic scene explained the misreporting and omissions because the record as a whole does not support that finding. The credibility and recollections of other witnesses are irrelevant because the HALO video depicts the scene. The issue is whether the Commission could infer that the Officers did not intend to deceive after comparing the video evidence to what Devine and Nixon actually reported. First, the Court finds that the HALO video does not show a chaotic situation. Second, the Court finds that a number of Nixons and Devines statements were directly contradicted (were inconsistent with) the objective/undisputed video evidence. Devine stated, on the same morning as the incident, that when he arrived on scene Nixon was on the ground struggling with a female suspect and surrounded by a large crowd CSC 1412; CSC 1420. The Panel Opinion states [t]he HALO shows Officer Nixon bending over Ms. Carillo while she is on the ground, CSC 318, but the 7

Panel then concludes it may have looked [to Devine] like Nixon was on the ground. CSC 323. This conclusion is thus inconsistent with the Panels own factual findings and the HALO video. Both Officers clearly exaggerated or intentionally mislead investigators about the need to use OC spray. Devine stated, the crowd began to close in around Ofc Nixon and me again and they were misted by the OC spray. CSC 1412. Nixon stated he was in fear of being attacked by this group, so I sprayed my OC spray towards the crowd trying to get them to back away and disperse. CSC 1410. The Court finds that the HALO video shows the crowd was not advancing on the Officers. Neither Officers report of the incident includes Devines tug of war with Ms. Thomas. The statements also omit any mention of Devine grabbing Ms. Boren by the throat and neck and pushing her to the ground. The HALO video clearly shows Ms. Borens feet come off the ground as a result of the force applied. Nixon also visibly grabbed Mr. Perez by the throat while she was handcuffed and threw her down after she tried to stand up. Both Officers omitted that action, however, they each reported that Perez assaulted/attacked Nixon, CSC 1410, 1412, which is not supported by the video evidence. The Commission accepted the Panels conclusion that discrepancies in the Officers statements and interviews arose from their imperfect recollections of a highly charged incident. Commission Decision at p. 10; Panel Decision at p. 13. The Court, after review of the HALO video, finds that none of the suspects in this altercation were armed or posed a significant threat to trained police officers. Initially, Devine did not even put down his cigar. Although trained members of the Denver Police Department regularly place themselves into dangerous and highly charged situations, the Court finds this was visibly not the case. The Court finds that curse words and insults directed at the Officers cannot explain the misreporting. The Panel disregarded and overlooked these inconsistencies in reaching its ultimate conclusion on the issue. The Commission simply deferred to the Panel on its conclusion concerning RR-112.2. Based on the obvious errors and omissions in the Officers statements compared to the objective video evidence, and the fact the Officers were unaware a HALO video captured the scene before they authored their reports or made

statements; the Court finds that the Commission abused its discretion when it upheld the Panel Decision on this issue. The Court finds that the Officers statements and omissions directly conflict with the clear and objective video evidence to such a degree that, as a matter of law, the Officers willfully, intentionally, or knowingly committed a material deceptive act in violation of RR-112.2. Conclusion Therefore, the Court affirms the Civil Service Commissions Decision in part and reverses it in part. The Court AFFIRMS the Commissions decision on RR-306 as to Kevin Devine only. The Court REVERSES the Commissions decision on RR-112.2 as to both Kevin Devine and Ricky Nixon.

DATED this 26TH day of September, 2013.

SO ORDERED.

__________________________________________ ELIZABETH A. STARRS Denver District Court Judge