DISTRICT COURT, CITY AND COUNTY OF DENVER,

STATE OF COLORADO
520 W. Colfax Avenue
Denver, Colorado 80204




 


 






 !

RICK NIXON,
Plaintiff,

Case No. 15CV33343

v.
DENVER CIVIL SERVICE COMMISSION, et al.,

COURTROOM 4G

Defendants.
ORDER

Plaintiff seeks judicial review of the Denver Civil Service Commissions (the
Commissions) final agency action dismissing him from the Denver Police Department (the
Department). For the reasons articulated below, that final agency action is REVERSED and the
case is REMANDED to the Commission for further proceedings.

I.

INTRODUCTION
Although, as discussed below, some of the details of the incident giving rise to this case

were hotly disputed, the following is undisputed. On July 12, 2009, Plaintiff, a Denver police
officer, was in uniform working in an off-duty capacity at the Denver Diner on Colfax Avenue
and Speer Boulevard.

At approximately 1:45 a.m., he responded to an altercation in the

womens restroom, and was informed that a patron, Kristal Carrillo, had assaulted another

female patron. Plaintiff handcuffed Carrillo and escorted her out of the restroom and then
outside the diner. Plaintiff reported that as he was doing so several of the women involved in the
bathroom altercation confronted him, both in the bathroom itself and later as he was taking
Carrillo through the diner to the outside, forcing him to tell them to back off or face arrest
themselves.
Almost all of the subsequent outside events were recorded by a High Activity Location
Observation (HALO) camera and preserved on DVD, a copy of which was admitted at
Plaintiffs panel disciplinary hearing as Exhibit U. By the time the HALO camera pans to the
area outside the diner, Plaintiff has already placed Carrillo on the sidewalk near the wall of the
building, and is holding his right hand on the top of her head to prevent her from getting up,
which she attempts to do once shortly after the video begins. Three other women (who Plaintiff
testified are the same women who earlier confronted him inside the bathroom and diner as he
was trying to arrest Carrillo) can be seen nearby, along with the diners manager. Two of
women can be seen engaging Plaintiff, Carrillo and mostly each other, one appearing to act
conciliatory toward the other and the other rejecting these efforts. At one point these two women
get inches away from Plaintiff while he is still hovering over the arrested Carrillo, with his right
hand on the top of her head. Plaintiff can then be seen requesting assistance, shortly after which
Officer Devine responds. Right after requesting assistance, but before Officer Devine arrives,
Plaintiff extends his left hand out to the two women in a back off manner, and although they
back up they remain nearby and appear to continue to engage with Plaintiff, Carillo and each
other, and also with Officer Devine once he arrives.
Officer Devine arrives at about the same time as four people on Pedi-cabs, although at the
time of their arrival they are slightly off camera to the right (and, indeed, the fact that they

arrived on Pedi-cabs is itself not evident from the video). As Officer Devine makes his way
toward Plaintiff and Carrillo, through the Pedi-cab arrivals, the arms of some of the Pedi-cab
people come into view, and one arm in particular can be seen gesticulating at the officers.
Officer Devine responds by pointing his baton at (and apparently saying something to) the Pedicab arrivals, who, but for the still gesticulating arm, remain off camera. Officer Devine then
starts to turn his attention back to Plaintiff and Carrillo, but returns to the Pedi-cab group and
shakes his baton several more times at them. He returns his attention to Plaintiff and Carrillo but
then suddenly turns back to the Pedi-cab group, reaches into the crowd and grabs one of the
Pedi-cab arrivals, Sharelle Thomas, who appears to have been the one gesticulating at the
officers. Thomas fellow Pedi-cab passengers attempt to intervene. Plaintiff pushes one of
them, Thomass companion Jay Spencer, in the chest. Another of them, Kelly Boren, charges
Officer Devine and he pushes her forcefully out of the way.
The Pedi-cab arrivals continue to approach the officers as Plaintiff places Thomas on the
ground. At this point one of the three originally-interfering women, Ana Perez, approaches
Officer Devine, and grabs at his baton several times. As Officer Devine is restraining Perez and
placing her on the ground, Thomas then bolts back into the diner. At this point Plaintiff maces
Perez and then turns to the Pedi-cab crowd and maces them, apparently twice. After a third
officer arrives to help restrain Perez, Plaintiff runs back into the diner, presumably to retrieve
Thomas.
Despite all of this activity, one of the other originally-interfering women, Miriam Pea
the apparently conciliatory onehas remained on the scene and appears to continue to engage
with Carrillo, at one point getting just a few feet from her and exchanging words with her. A

fourth officer arrives, cuffs Pea, and places her against the wall of the diner, where she crouches
down.
Plaintiff comes out of the diner with Thomas, and places her on the ground. By this time
both Carrillo and Perez have gotten up on their knees and they begin to stand up. Perez even
begins to walk off camera to the left. Plaintiff throws both of them back to the ground. Carrillo
kicks Plaintiff in the knee, then Plaintiff punches Carrillo in the face. Other officers secure Perez
and Carrillo.
Kristal Carrillo was charged with assault, disturbing the peace and resisting arrest; she
pleaded guilty to assault. Ana Perez was charged with and pleaded guilty to failure to obey a
lawful order. Kelly Boren was charged with and pleaded guilty to failure to obey a lawful order.
Neither Shanelle Thomas nor Miriam Pea was charged.
Both Plaintiff and Officer Devine were charged with various DPD rule violations, but the
only one that remains at issue in this proceeding is the one for which Plaintiff was ultimately
terminated: deceptively reporting the incident in his use of force report, in violation of Rule RR112.2 of the Denver Police Departments Operations Manual. That Rule provides as follows:
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.
DPD Rule 112.2 (emphasis added), Rules and Regulations for the Police Department of the City
and County of Denver (May 1, 1972, rev. October 2008). 1

A copy of these Rules and Regulations was filed as an exhibit in 12CV6760, the prior judicial review. The record
in that case was made a part of the record in this case by my Order dated December 9, 2015. Both records are
preserved electronically on DVDs, but those DVDs are rather confusingly organized, and not all parts of the records
are Bates stamped. Therefore, for clarity, the first time I cite to a portion of the record I will describe in a footnote
the DVD and file in which the citation can be found. These Rules and Regulations can be found on the DVD
labeled Nixon Administrative Record 11CSC05 and 11CSC06. It is in the eleventh item, labeled 2012-04-12 CD
of Authorities and Cases for Respondent-Appellants.
4

Plaintiff wrote the following use of force narrative on the morning of the incident, before
seeing, or indeed even knowing about, the HALO video. This narrative is the sole basis of the
deceptive act charge:
On 07/12/09 at about 0145 hours, while working off duty at Denver Diner,
located at 740 W Colfax Ave., an assault/fight occurred in the womens restroom.
While working, I was in full Denver Police Department Uniform. I responded to
the fight and observed numerous female subjects engaged in a physical fight,
assaulting one another with closed fists. One female subject (unknown name)
stated that she was just assaulted, and pointed at a female suspect later identified
as Kristal Carrilo (04/28/86). I observed Carrilo when she first arrived at Denver
Diner. Carrilo was extremely intoxicated and made multiple trips to the womens
restroom prior to the fight starting. I tried to grab hold of Carrilo, but she
continued to charge towards the unknown female with closed fists and swinging
her arms, as though she was going to continue to assault this unknown female. I
had to pull her back and out of the restroom entrance by wrapping my right arm
around the front of her from behind and pulling her to the floor. Once I got
Carrilo on the floor, she continued to struggle with me as I was trying to handcuff
her. I then started to be surrounded by the other female subjects that were inside
the restroom. I ordered all parties to back away or they would go to jail. Once I
got Carrilo handcuffed, I assisted her up and tried to escort her out of the
restaurant. Several of the female parties involved in this disturbance then
followed me out of the restaurant. Once outside, I told Carrilo to sit down, but
she refused my request and I had to physically assist her in sitting, by pulling her
down to the ground. As I was holding onto Carrilo, I was still being surrounded
and requested code 10 cover. I had to call for code 10 cover at least two times
due to the crowd. As I was holding Carrilo down, she continued to try to pull
away and stand up on me, this whole time calling me a fuckin bitch and
fucker. During this whole time, Ana Perez (10/22/83) continued to interfere
with me. She continued to try to walk towards me, and was within arms reach of
me and Carrilo. I ordered Perez to back away numerous times, but she refused.
Perez was also one of the parties inside the restaurant that I told repeatedly to
back away or she would be jailed. As the crowd continued to grow, Officer
Kevin Devine (06009) arrived on scene to assist me. I observed that Officer
Devine had to struggle his way through the crowd to get to me. Perez continued to
ignore my orders to back away and leave. Perez then yelled Officer Devine and
myself to let Carrilo go. Officer Devine told Perez several times to leave in a
loud voice, but she still refused and continued to be loud and come at us in a
combative manner as though she was going to stop us from arresting Carrilo. I
then observed Perez grab hold of Officer Devines baton and attempted to pull it
away from him. As Officer Devine was attempting to place Perez into custody,
she grabbed hold of his right arm and scratched him, unknown to me if he was
injured. I then pulled out my department approved OC spray and sprayed Perez
in the facial area, using a 2 to 3 second burst, at the same time spraying Officer
5

Devine accidentally. At that time, Carrilo was to my right and she kicked me in
my right knee area, causing me pain. I then struck Carrilo once in the facial area
with a closed fist to stop her from assaulting me. The group that Officer Devine
has to struggle through in order to get to me became loud and started yelling at us
in a threatening manner. I was in fear of us being attacked by this group, so I
sprayed my OC spray towards the crowd trying to get them to back away and
disperse. As a result, the spray misted several parties within this crowd. Shortly
after that, Officer Devine told me to arrest one of the parties in this group,
identified as Sharelle Thomas (02/04/85). As I approached Thomas, she turned
away from me and went back into the restaurant. I followed Thomas and
attempted to place her into handcuffs. While doing this, I was approached by one
of the other parties in this group, later identified as Kelly Boren (10/19/83).
Boren was ordered to back away as she tried to prevent me from handcuffing
Thomas, by stepping in my way and between me and Thomas. I had to yell at her
to back away several times, but she refused and yelled back at me. I then pushed
her away with my right hand on her upper chest area in order to get her away
from me. Boren was also one of the parties misted by me discharging my OC
spray. A few minutes later, Officer Devine told me to release Thomas, as she
would not be arrested. While dealing with Thomas and a male subject, later
identified as Jay Spencer (06/03/72), Boren walked up and began yelling at me
again. I told her several more times that she needed to leave. I told her that I was
giving her a lawful order to leave or she would be jailed. Boren then told me
well then jail me Boren was then placed into custody for Disobedience to a
lawful order and Interference. All parties were treated by AMR # 208 (Petta) for
exposure to OC and Sgt. Kenfield 92005 was called to the scene as well. No
further action was taken.
Use of Force Report, narrative, dated July 12, 2009, CSC-1410. 2
II.

THE FIRST ROUND OF ADMINISTRATIVE PROCEEDINGS

The Departments Internal Affairs Bureau (IAB) initiated an investigation into the

officers conduct, which included interviewing witnesses and recovering and reviewing the
HALO video. The IAB issued charges against Plaintiff (and Officer Devine) for inappropriate
force, failing to give name and badge number, discourtesy, and committing a deceptive act. The
charges were first reviewed by Lieutenant Darren Ciempa, who concluded that none of them
should be sustained against either officer.

His conclusions were reviewed by the District

This narrative can be found in the DVD labeled Nixon Administrative Record 11CSC05 and 11CSC06, in the
thirteenth item labeled Petitioners Exhibits.
6

Commander, Deborah Dilley, who also refused to sustain any of the charges against either
officer. Division Chief Mary Beth Klee reached the same conclusion.
Richard Rosenthal, the independent monitor, then requested an additional investigation,
which Deputy Chief Quinones conducted. After that additional investigation, Deputy Chief
Quinones concluded that Plaintiff and Officer Devine were guilty of some of the charges but not
all. As to Plaintiff in particular, Quinones sustained the charge of inappropriate force but did not
sustain any of the other charges. Quinones recommended that Plaintiff be suspended for 30
days. Those conclusions were then reviewed by Chief Gerald Whitman, who adopted them.
On review, the then Manager of Safety, Charles Garcia, reversed all of these prior
findings not sustaining the deceptive act charge, sustained that charge (as well as the other three
charges), and ordered Plaintiff terminated on the deceptive act charge. Departmental Order of
Disciplinary Action, dated April 11, 2011, 11CSC06 at 119. 3
Plaintiff appealed his termination to the Commission. A panel of three hearing officers
(the Panel) held a four-day de novo evidentiary hearing between October 26, 2011 and
November 18, 2011. The following witnesses testified during this hearing: Plaintiff, Officer
Devine, Sharelle Thomas (the gesticulating Pedi-cab arrival who Officer Devine yanked out of
the crowd), her companion Jay Spencer, and Kelly Boren (the Pedi-cab arrival who charged
Devine), as well as Manager of Safety Garcia and all the officers in the chain of command who
had earlier investigated the incident and did not sustain the deception charge. Each eyewitnesss
testimony conflicted in some ways with the video, with the testimony of other witnesses, and in

This citation can be found in the DVD labeled Nixon Administrative Record 11CSA05 and 11CSC06, in the
eighth item labeled B-11 CSC 06 In the Matter of Ricky Nixon.
7

some cases with itself. Based on all of this conflicting testimony, the Panel made extensive
findings of evidentiary fact, 4 including the following:
1. When Carrillo first arrived at the diner she was already extremely intoxicated.
2. Carrillo was still assaulting the victim in the bathroom when Plaintiff first approached
them.
3. Plaintiff was forced to wrap his arms around Carrillo to pull her away from the victim
and out of the bathroom.
4. Once Carrillo was on the ground outside the bathroom, and as Plaintiff was trying to
cuff her, the other women from the bathroom started to surround Plaintiff. Plaintiff told
them to back away or they would be jailed.
5. After he cuffed Carrillo and started to remove her from the diner, the women
companions who had earlier surrounded him followed him out of the diner.
6. Once outside, Plaintiff ordered Carrillo to sit down, but she refused. Plaintiff then
physically forced Carrillo into a seated position.
7. She continued to attempt to get up, and Plaintiff was required to hold her down. She
was calling him names, including a fuckin bitch and fucker.
8. Plaintiff initiated the Code 10 call for assistance because, as he was trying to keep
Carrillo down, her women companions surrounded him, and the crowd, now including
the four Pedi-cab arrivals, was growing.
9. When one of the women (Ana Perez) approached, he ordered her back and threatened
her with arrest. She ignored his orders and continued to approach him.
10. Officer Devine responded to Plaintiffs call for assistance and had to push through
the crowd with his baton to get there. Shanelle Thomas, one of the Pedi-cab arrivals,
began to yell at Officer Devine and pushed or elbowed him. Devine then retrieved
Thomas from the crowd.
11. Thomass companion, Jay Spencer, tried to pull Thomas away from Officer Devine.
12. Perez then tried to interfere. Officer Devine told Perez to step back or face arrest.
Instead, Perez approached the officers in a combative manner, grabbing Devines baton.
13. Plaintiff maced Perez and then the crowd, also accidentally macing Officer Devine.

As discussed below, the Commission was, and remains, bound by these evidentiary facts found by the Panel,
unless they are indisputably refuted by the video.
8

14. Other officers arrived and restored order.

Findings, Conclusions, Decision, and Order, dated January 13, 2012, pp. 4-6, CSC-000004000006. 5
Based on these findings of fact, the Panel went on to find and conclude that because of
the chaos of the evening the credibility of the lay witnesses and the police officers
as to their truthfulness cannot in good faith be challenged. The witnesses and the
officers attempted to recollect the incidents in good faith but at times those
recollections were inaccurate. The Hearing Panel acknowledges that the
witnesses perception and memories of the incident differ; however, the
differences and inaccuracies should not be attributed to intentional deception.
Id. at 13, CSC-000013. The Panel sustained the inappropriate force complaint against Plaintiff,
and suspended him for 30 days without pay.

But finding that Plaintiff did not willfully,

intentionally or knowingly make any deceptive statements in his use of force report, it did not
sustain the deceptive act charge, and ordered Plaintiff reinstated with back pay.
The Manager of Safety appealed the Panels decision to the full Commission. The
Commission affirmed the Panels conclusion with regard to the deceptive act violation, believing
it was bound by the Panels finding that Plaintiff did not willfully, intentionally, or knowingly
deceive in his use of force report. Decision and Final Order, dated October 11, 2012, CSC2380. 6
The City sought judicial review of the Commissions decision in the district court
pursuant to C.R.C.P. 106(a)(4). The case was assigned to my colleague Elizabeth Starrs. Judge
Starrs reversed the Commission and reinstated the Manager of Safetys decision to terminate
Plaintiff.

Martinez v. Devine, Denver District Court Case No. 12CV6760 (Order dated

This document can be found in the DVD labeled Case # 15CV33343 Administrative Record, in the documents
strangely labeled as 12-01-13 Findings-Conclusions-Decision-Order Devine-Nixon 11-05+06.

This document can be found in the DVD labeled Nixon Administrative Record 11CSA05 and 11CSC06, in the
last item labeled H-11 CSC 05A Charles F. Garcia v. Kevin Devine and Ricky Nixon.
9

September 26, 2013). Plaintiff appealed, and the court of appeals reversed, concluding that the
Commission erred in considering itself bound by the Panels ultimate finding of fact regarding
Plaintiffs mental state, and that Judge Starrs erred in making her own findings of fact. Nixon v.
City & Cty. of Denver, 343 P.3d 1051 (Colo. App. 2014). It remanded the case back to Judge
Starrs with instructions that she remand it to the Commission for the Commission to draw its
own ultimate conclusions of fact as to Plaintiffs state of mind. Id. at 1058.

III.

THE SECOND ROUND OF ADMINISTRATIVE PROCEEDINGS

On remand, the Commission concluded that Plaintiffs use of force narrative was

intentionally deceptive, and ordered him terminated. Decision and Final Order on Remand,
dated August 21, 2015, CSC-000022-000028. 7 As discussed in more detail in Part V below,
however, the Commission actually did more than that. In addition to mischaracterizing some of
the statements in Plaintiffs use of force report, the Commission re-examined the evidentiary
facts, compared the mischaracterized use of force report to the HALO video, and even appeared
to make its own new findings of evidentiary fact.
It is that final agency order of which Plaintiff now seeks judicial review. He makes three
arguments: 1) the Commission abused its discretion and acted arbitrarily and capriciously by
disregarding the evidentiary facts determined by the Panel; 2) the Commission exceeded its
authority, acted contrary to law, and abused its discretion by resolving disputed issues of fact;
and 3) the Commission acted arbitrarily and capriciously by rejecting the Panels findings of fact
on remand when it had accepted those findings in its first decision.

Although phrased

differently, each of these arguments raises the central issue of whether the Commission abused

This document can be found as the second item in the in the DVD in this case labeled Case # 15CV33343
Administrative Record.
10

its discretion when it mischaracterized the use of force report, mischaracterized the video, and reexamined the evidentiary facts found by the Panel. I conclude that the Commission did abuse its
discretion, and remand the case with instructions that the Commission decide the dispositive
ultimate factwhether Plaintiff willfully, intentionally, or knowingly was deceptivebased
only on the four corners of the use of force report, on the evidentiary facts already found by the
Panel, and on any other fact in the record not contradicted by the facts found by the Panel.

IV.

STANDARDS OF REVIEW
Rule 106(a)(4) provides for judicial review where an agency, exercising quasi-judicial

functions, has exceeded its jurisdiction or abused its discretion.

An agency abuses its

discretion or exceeds its jurisdiction if there is no competent evidence in the record to support its
decision or it misapplies the law. E.g., Board of Cty. Comm'rs of Larimer Cty. v. Conder, 927
P.2d 1339, 1343-44 (Colo. 1996). There is no competent evidence to support a decision if the
decision is so devoid of evidentiary support that it can only be explained as an arbitrary and
capricious exercise of authority. Ross v. Fire & Police Pension Ass'n, 713 P.2d 1304, 1309
(Colo. 1986).
Agency decisions are entitled to a presumption of validity and regularity . . . and the
burden is on the party challenging that bodys action to demonstrate an abuse of discretion.
Colorado Airport Parking, LLC v. Dep't of Aviation of City & Cty. of Denver, 320 P.3d 1217,
1219 (Colo. App. 2014).
Finally, and most pertinent here, although the Commission is not bound by the Panels
ultimate conclusions of facthere, its ultimate conclusion that Plaintiff did not willfully,
intentionally, or knowingly deceiveit is bound by the evidentiary facts found by the Panel,

11

provided those evidentiary findings are not clearly contradicted by the record. Nixon v. City &
Cty. of Denver, supra, 343 P.3d at 1056.

V.

THE COMMISSION ABUSED ITS DISCRETION IN MISCHARACTERIZING

PLAINTIFFS USE OF FORCE REPORT, MISCHARACTERIZING THE HALO
VIDEO AND RE-EXAMINING THE PANELS EVIDENTIARY FACTS
Even though the court of appeals expressly noted that the Commission is bound by the

Panels findings of evidentiary fact, the Commission appears to have re-examined those facts and
made new findings of fact based on its comparison of Plaintiffs report to its interpretation of the
HALO video. Indeed, the bulk of the Commissions final order on remand is consumed by this
evidentiary comparison. However, that comparison not only violated the command that the
Commission was bound by the Panels evidentiary findings of fact, the Commission was also
palpably incorrect in all of its specific conclusions that the HALO video does not support
Plaintiffs use of force report.

The Commission also mischaracterized several aspects of

Plaintiffs use of force report.

The Commission on remand concluded broadly that the events at the Denver Diner, as
reported by [Plaintiff], varied, in some instances, significantly, from the reality of the events
depicted in the video obtained from the HALO camera. Decision and Final Order on Remand,
dated August 21, 2015, un-numbered page 5, CSC-00026. But of course the Panel also had the
benefit of the HALO video. In the face of that video, and the conflicting testimony of the
witnesses, the Panel made extensive findings of evidentiary fact which the Commission is not
free to re-examine, even in the guise of comparing those findings to the video.
It is true that there is some law suggesting that a reviewing agency is not bound by facts
determined at a hearing if a video indisputably shows those facts to be untrue. In such a case, the

12

factual findings disproved by the video are in effect not supported by the weight of the evidence.
See Scott v. Harris, 550 U.S. 372, 378-80 (2007). But here, the Commission never expressly
characterized its conclusions in this manner. In fact, it never concluded the video contradicted
any of the Panels findings of fact. Instead, it compared, or purported to compare, the video to
Plaintiffs use of force report. This is the very comparison, at least when it comes to evidentiary
facts, within the exclusive province of the Panel, as fact-finder.
Moreover, the HALO video here was not against the weight of the Panels evidentiary
findings.

In fact, on the whole it corroborated those findings. 8

Indeed, the four specific

instances in which the Commission in effect made new findings of fact are themselves dispelled
by the video.
The Commission first claims that the video contradicts Plaintiffs report that when he
was outside of the Denver Diner with one of the patrons of the Diner (a Ms. Carrillo) he was
surrounded by a large group of people. Decision and Final Order on Remand, dated August 21,
2015, un-numbered page 5, CSC-00026. But in fact Plaintiff never claimed in his use of force
report, quoted in its entirety above, that he was ever surrounded by a large group of people.
His report states that women patrons attempted to interfere with his arrest of Carrillo inside the
bathroom and the diner, and that they continued to do so once he was outside. Plaintiff uses the
word surrounded just twice in his use of force reportonce while describing how these three
women surrounded him in the bathroom while he was arresting Carrillo, and once when he
was describing how they surrounded him outside.
8

Plaintiff never claimed he was

There are admittedly several points on which Plaintiffs version of the events as contained in his use of force report
differs from the video (just as other witnesses accounts differ from the video), but all of these points are either
errors of sequence or are relatively minor. For example, one error of sequence is that Plaintiff reports Carrillo
kicked him and he retaliated with the punch to her face, all before Plaintiff deployed the mace, when in fact the
video shows this exchange happened after the macing. One example of a relatively minor error is that Plaintiff
reports he pushed Boren in the chest when she attempted to interfere with his arrest of Thomas, when in fact it was a
different Pedi-cab arrivalThomass companion Jay Spencerwho Plaintiff pushed.
13

surrounded by the Pedi-cab crowd. Plaintiffs contention that he was surrounded by the
three women in the bathroom and diner cannot be either confirmed or refuted by the video, and
the Commission is therefore bound by the Panels finding that he was. Once outside, his
contention of being surrounded is confirmed, not disproved, by the video, at least in the sense
that at various times while outside these three women were congregating near the scene of
Plaintiffs arrest of Carrillo, often very very close. The video certainly cannot be said to
incontrovertibly demonstrate Plaintiff was not surrounded by these women when he was
outside.
The Commission next claims that Plaintiff reported that when he had Ms. Carrillo on the
ground she persistently attempted to stand up and pull away from him. The relevant portion of
the video clearly contradicts this statement . . . .

Id.

Again, the Commission has

mischaracterized both the report and the video. Plaintiff never reports that Carrillo persistently
attempted to stand up and pull away from him. What he reported was that when he first brought
Carrillo outside (an event not captured by the HALO video), he told Carrilo [sic] to sit down,
but she refused my request and I had to physically assist her in sitting, by pulling her down to the
ground. Narrative, CSC-1410. He also reported that once seated, Carrillo continued to try to
pull away and stand up on me, this whole time calling me a fuckin bitch and fucker. Id.
Some of this, of course, may not have been on the video if it happened before the video panned
over. But even after panning, the video shows Carrillo trying to get up, even as she is sitting
down with her legs stretched out before her, and Plaintiff having to keep her down by pushing
his right hand down on her head.
The Commission next claims that Plaintiff lied when he reported that he maced the crowd
because it was advancing on him and he feared he would be attacked. Decision and Final

14

Order on Remand, dated August 21, 2015, un-numbered page 5, CSC-00026. Again, contrary to
the Commissions characterization, Plaintiff never reported that the crowd was advancing at
the time he decided to use the mace. He merely reported that he was in fear of being attacked by
the crowd. Moreover, to the extent Plaintiffs use of the word crowd was meant here to
describe the Pedi-cab arrivals and others gathering near the scene, that crowd was almost
always out of the frame of the video, off to the right. And in fact immediately prior to the
macing, as Officer Devine is dragging Thomas out of the Pedi-cab crowd, that crowd most
definitely advances upon the officers.

It was at this point that Thomass companion, Jay

Spencer, attempts to interfere and is pushed by Plaintiff, and that Boren comes out of the crowd
and lunges toward Officer Devine. As the Panel concluded, it is impossible to say whether, at
the exact moment of the macing, that crowd was stationary or advancing.
Finally, the Commission claims that Plaintiff lied when he reported that Thomas turned
and went into the restaurant when he attempted to arrest her. The Commission contends the
video shows she left after he drew his mace, which of course is not inconsistent with what
Plaintiff reported. In any event, what the video actually shows is that as Plaintiff goes to cuff
Thomas (and you can see him bending down toward her), he turns his attention back to Perez
who is resisting Officer Devine, and thats when Thomas bolts back into the diner. Not that the
sequence is particularly significant or nefarious, but Thomas bolts after Plaintiff pulls his mace
but before he uses it on Perez.
The Commission also erroneously concluded that Plaintiffs use of force report omitted
material details. The only example it gave as an omission was the following:
[T]he video shows a patron, suffering from the affects [sic] of Nixons pepper
spray, walking towards a police car, at which time Officer Nixon can be seen
grabbing her by the throat and throwing her to the ground. When a friend of that
patron expressed objection as to the manner in which her friend had been treated,
15

Officer Nixon offered up more of the same, grabbing the complaining patron by
the throat and throwing her to the ground as well. When the first patron, now
handcuffed, attempted to get up, Officer Nixon again pushed her to the ground.
Decision and Final Order on Remand, unnumbered page 6, CSC 000027. But this rendition of
what the video shows is itself materially misleading.
It makes it sound like these two patrons just happen to be walking by the scene, and
were otherwise uninvolved in the incident. But in fact they are none other than Carrillo and
Perez, and they were not walking towards a police car. They were already both cuffed, had
been arrested and placed on the ground, and were attempting to get up and walk away. Plaintiff
does not omit this interchange from his use of force narrative, although it is true he never
mentions that he threw either Carrillo or Perez down. As the Panel noted, however, he does
admit that he punched Carrillo in the face after she kicked him.
For all these reasons I conclude that the Commission abused its authority in
mischaracterizing Plaintiffs use of force report, in mischaracterizing the facts in the video and in
finding new facts. The video did not render any of the Panels extensive findings of evidentiary
fact without support, and the Commission is therefore bound by those extensive evidentiary
findings. Although the Commission was free, and indeed required, to decide the ultimate
question of factwhether any material discrepancies between Plaintiffs report and the
evidentiary facts were willfully, intentionally, or knowingly deceptivethe Commission was not
free to rewrite Plaintiffs report, reinterpret the video, or make new findings of evidentiary fact.

VI.

CONCLUSION
Because the Commissions ultimate finding that Plaintiff intended to deceive appears to

be based on its mischaracterization of Plaintiffs report, its inaccurate reinterpretation of the

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video and its improper finding of new evidentiary facts, its final decision on remand is
REVERSED. The case is again REMANDED to the Commission with instructions that it decide
the ultimate issue of factwhether material facts in Plaintiffs use of force report were willfully,
intentionally or knowingly deceptivebased only on the four corners of Plaintiffs use of force
narrative, the evidentiary facts already found by the Panel, and any other facts disclosed by the
record that are not inconsistent with the evidentiary facts found by the Panel.

DONE THIS 2ND DAY OF SEPTEMBER, 2016.

BY THE COURT:

Morris B. Hoffman
District Court Judge

cc: All counsel

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