Colorado Court of Appeals Opinions
April 16, 2009

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

No. 08CA0215. Turney v. Civil Service Commission of the City and County of Denver.
Police—Suspension—Tactical Error—Shooting—Reasonableness—Use of Force Policy—Efficiency and Safety Provision.

Denver Police Officer James Turney appealed a judgment upholding his ten-month suspension for tactical errors preceding his fatal shooting of a developmentally disabled 15-year-old boy who had been wielding a knife. The Court of Appeals affirmed the judgment.

Though the shooting itself was not alleged to have violated the Denver Police Department’s (Department) use-of-force policy, Turney was suspended for violating a provision requiring that officers "maintain the highest standard of efficiency and safety." Denver’s Civil Service Commission (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’s decision, holding that Turney had "disregarded the opportunity to de-escalate" the situation prior to the shooting.

On appeal, Turney contended that the "highest standard of efficiency and safety" provision is unconstitutionally vague. The Court disagreed, holding that this standard can be applied to evaluate the reasonableness of officers’ actions in light of their training. Further, Turney did not allege or show that the Department affirmatively assured officers that tactical errors preceding the use of deadly force would not be the subject of discipline.

Turney also contended that the Commission exceeded its authority when it overturned the hearing officer’s decision to reverse the suspension. The Court disagreed. Contrary to Turney’s contention, the Denver Municipal Code authorized review based on two grounds. 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."

Turney also argued that his actions before the shooting must be reviewed under the use-of-force policy rather than under the Operations Manual’s § 3.13 "efficiency and safety" provision. However, the Department is not legally precluded from using § 3.13 to review the propriety of its officers’ tactical decisions preceding an actual use of force.

The Court also rejected Turney’s argument that the Commission erred by construing the "highest standard" provision of § 3.13 to require that he use "ideal" versus "reasonable" tactics. Although officers are not required to do anything more than act reasonably and consistently with their training, the record supports the findings that Turney failed to understand the totality of the situation and use "reasonable" tactics. The order was affirmed.