Turney v. Civil Service Com'n, No. 08CA0215.

Decision Date16 April 2009
Docket NumberNo. 08CA0215.
PartiesJames TURNEY, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION of the City and County of Denver and City and County of Denver, a municipal corporation, Defendants-Appellees.
CourtColorado Court of Appeals

Bruno, Colin, Jewell & Lowe, P.C., Douglas Jewell, Denver, Colorado, for Plaintiff-Appellant.

David R. Fine, Denver City Attorney, Karla J. Pierce, Assistant City Attorney, Denver, Colorado, for Defendants-Appellees.

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)(4); 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, 2003, 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 § 3.13. Section 3.13 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-force 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 (3) 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 "[u]se of force that is not lawful, reasonable and appropriate will not be tolerated." It stated: "The level of force applied must reflect the totality of circumstances 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 circumstances 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 Decision

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 "Section 3.13 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, ha[d] ever been disciplined under Section 3.13 ... 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 2003, 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 § 3.13 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 3.13 by "fail[ing] 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)(4). 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 evidentiary 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"...

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