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Ricky Nixon-Kevine Devine Ruling

Ricky Nixon-Kevine Devine Ruling

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Published by Michael_Lee_Roberts

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Published by: Michael_Lee_Roberts on Oct 01, 2013
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01/26/2014

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DISTRICT COURT, CITY AND COUNTY OF DENVER,STATE OF COLORADO
Court Address:1437 Bannock St., Denver, CO 80202In re the Marriage of:Plaintiffs,ALEX MARTINEZ et al.AndDefendants,KEVIN DEVINE et al.
Case Number:12CV6760Ctrm: 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, amunicipal corporation (collectively the “City”), “COMPLAINT FOR JUDICIAL REVIEWPURSUANT TO C.R.C.P. 106(a)(4) AND DECLARATORY JUDGMENT PURSUANT TOC.R.C.P. 57 AND C.R.S. § 13-51-101
et. seq.
” and (2) Defendant Kevin Devine’s(“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 thiscase. The Court, having reviewed the Opening Briefs, Responses, and Replies, theCase File, the transcript including the videos, the relevant legal authorities, and beingotherwise 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 LocationObservation (“HALO”) camera. Decision and Final Order,
Charles F. Garcia v. Kevin Devine and Ricky Nixon 
, Case No. 11 CSC 05A & 06A, October 11, 2012 (“CommissionDecision”). 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
COURT USE ONLY
DATE FILED: September 26, 2013 4:27 PM
 
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women’s 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 afew people gathered, Nixon “placed two ‘Code 10’ calls requesting immediateassistance.”
Id 
. at p. 3. Devine was the first officer to respond to the scene.
Id 
. TheHALO video shows the events as they unfolded. The undisputed video evidence showsa physical confrontation between the Officers
1
and a number of women. Due to thephysical altercation, Nixon was required to prepare a use of force report, and aDepartmental investigation of the incident proceeded.
Id.
at 4.Following an investigation by the Denver Police Department (“DPD”) InternalAffairs Bureau, former Manager of Safety, Charles Garcia (“Manager”) issued“Departmental Order of Disciplinary Action” that terminated both officers’ employmentfor violating RR-112.2 (
Commission of a Deceptive Act 
), and suspended both officerswithout pay for violating RR-306 (
Inappropriate Force 
). The Officers both timely appealed the Manager’s disciplinary orders to the Denver Civil Service Commission(“Commission”). Pursuant to Commission Rule 12, section 4.b., a panel of threehearing officers (“Panel”) held an evidentiary hearing and issued its “Findings,Conclusions, Decision, and Order” on January 13, 2012, (“Panel Decision”). The PanelDecision found that neither Devine nor Nixon violated RR-112.2, and as a result, itreversed their terminations and reinstated the Officers. CSC 314-34. The PanelDecision also found that Devine did not violate RR-306 and therefore it reversed hissuspension.
Id 
. The Manager appealed the Panel’s decisions concerning RR-112.2 (bothOfficers) and RR-306 (for Devine) to the full Commission. The Commission reviewedthe record and issued a final decision on October 11, 2012. The Commission Decisionaffirmed the Panel Decision in part and reversed it in part. The decision affirmed thePanel’s finding that neither Officer violated RR-112.2, but it reversed the Panel’sfinding on RR-306 for Devine. Therefore, Devine’s suspension was reinstated. The City and Devine filed separate appeals of the Commission Decision to theDistrict Court pursuant to Rule 106(a)(4), which were subsequently consolidated intothe above captioned case. On April 4, 2013, the Court approved the Parties’ joint
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“Officers” is used throughout this Order to refer collectively to Officers Devine and Nixon.
 
3
stipulation to dismiss without prejudice the City’s Second Cause of Action forDeclaratory Judgment under C.R.C.P. 57 and C.R.S. § 13-15-101.
Standard of Review
A court’s review under C.R.C.P. 106(a)(4) is “limited to a determination owhether the body or officer has exceeded its jurisdiction or abused its discretion.” Areviewing court is primarily concerned with “whether the agency has regularly pursued its authority; whether its decisions are just and reasonable; and whether itsconclusions 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 orabuses its discretion only if it misapplies the law or if there is no competent evidencein the record to support its decision.
Bd. of County Comm’rs v. Conder 
, 927 P.2d1339, 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 notpermitted to substitute its judgment “where there is competent evidence in the recordto 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 body’s 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 supportedby adequate findings of fact [] is a question of law.”
Stevinson 
, 143 P.3d at 1101.Additionally, an administrative body’s findings concerning mixed question on law andfact are not binding on the reviewing court.
Id.
Discussion
Pursuant to Denver City Charter § 9.4.15(F), the Commission may review ahearing officer's or panel’s decision in limited circumstances, such as when:. . . the decision of the hearing officer involves an erroneousinterpretation of departmental or civil service rules, [or] the decision o

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