BEFORE THE HEARING OFFICER CIVIL SERVICE COMMISSION

CITY AND COUNTY OF DENVER, COLORADO

CASE No. 15 CSC 06

In the matter of:

CHOICE JOHNSON (P03021),
Officer in the Classified Service of the Denver Police Department,
Petitioner.
________________________________________________________________________

FINDINGS, CONCLUSIONS, and ORDER

______________________________________________________________
This matter came on for hearing on June 30, July 1, and July 2, 2015. The Hearing Officer
was Terry Tomsick. The City and County of Denver was represented by Richard Stubbs
and William Glassman. Attorneys Jonathan Cross and Sean Lane represented Petitioner.
The following witnesses were sworn and testified: (1) Jess Vigil, Deputy Director of
Safety; (2) Marine Guard Matthew Hans Roland; (3) Chad Taulbee, Manager of the 1 Up
Bar; (4) Sergeant Rudolph Suniga; (5) Choice Johnson; (6) and Brandon Schneider, who
was accompanied by his civil attorney, Siddhartha Rathod, Esq.
The Agency's Motion to Preclude expert testimony from David Bruno, Esq. and from Alan
C. Youngs, Esq. was granted at the beginning of the hearing. Given this ruling, the former
Manager of Safety Al LaCabe, Esq., was also precluded from testifying as a rebuttal expert
witness.
The parties submitted a Joint Pre-Hearing Order on June 8, 2015. The following Exhibits
were stipulated: Agency's Exhibits 1-9; Exhibit E, first two cases only, Case No. P2011 05
089 and Case No. P2013-0006; Exhibit 14, 16, 17, 18, 19, 20, 21, 22, 23.
The following Exhibits were admitted and rejected as follows.
(1) Petitioner's Exhibits A, 1-5 (stipulated); Exhibit B (HALO video)(stipulated);
Exhibits C-1 through C-9 stipulated with an initial objection to C-10 through C-17 on the
basis of foundation and prejudicial value but all poster exhibits (C-1 through C-17) were
later admitted. Petitioner's Exhibit D (stipulated); Exhibit E-1, admitted in its entirety but
given no weight given to item P2014-0369 at Bate-stamped E-1 000883 given the assertion
that it was a negotiated settlement; Exhibit E-2 was admitted over objection; Exhibits E-3
through E-5 were admitted; Exhibits E-6 through E-15 consisted of case law, argument and
syllabi and were not proper exhibits; Exhibits E-16 though E-26 were admitted; Exhibits F
and N were stipulated; Exhibits G, H I, J and L were not admitted; Exhibit K was left blank
for rebuttal exhibits of which there were none; Exhibit M was stipulated.

(2) City's Exhibit 1 which was the entire IAB file was admitted after the redaction
of any CCIC records. Exhibits 2 and 3 were admitted; Exhibit 4 was admitted over
objection; Exhibits 5 and 7 were stipulated. Exhibit 6 was withdrawn. Judicial notice was
taken of City ordinances DRMC 38-31 and 38-32, interference and resistance with police
officer, respectively.
FINDINGS of EVIDENTIARY FACT
1. These findings are based upon the Internal Affairs Investigative file as well as live
testimony and evidence from the hearing. Rule 12, Section 9(D). See Charter 9.4.15(F).
2. Matthew Schreiber was two days away from his wedding on July 28, 2014. However, on
July 26, 2014, Matthew and his brother Brandon, along with several other members of
Matthew's bachelor's party, had quite a time celebrating the impending nuptials. The
bachelor party started with an 11:30 AM brunch at Denver Biscuit Company which
included Irish with Irish whiskey and Bloody Marys. No one was abstemious. The group
then carried on to the Denver Art Museum because some of the wedding invitees were from
out of state. It then went to a 6:00 PM Rockies' game (5-6 12 oz. beers there per person),
and ended up at the 1 Up Bar in LoDo for another hour and a half of drinking until about
10:45 p.m. By the very end of the party which was approximately 11:25 p.m., there were
five individuals, Nate, Brett, Brian, Brandon and Matthew all circling Officer Choice
Johnson who was working off-duty in front of the 1 Up Bar. One of them was handcuffed.
One was arguing vociferously. One was trying to get the one arguing vociferously to stop
the argument and to come away with him. Two wisely left. This day ended badly.
3. Matthew Schreiber, the groom-to-be, fell asleep at the 1 Up Bar. 1 Bar policy at the 1 Up
Bar is to request patrons who are intoxicated and sleeping at the bar to remove themselves
from the premises. Around 10:45 p.m. on July 26, 2014, licensed Marine Guard Roland 2
woke Matthew up and escorted him out of the bar and told him to leave. Specifically,
Roland told Matthew that he was too intoxicated and that the bar wasn't going to serve him
anymore. Matthew protested that he just wanted to stay at the bar and drink water. This is
not acceptable to the 1 Up Bar once they have determined that a patron is too intoxicated to
be served.
3. Roland escorted Matthew up two flights of stairs at which point no drinks are allowed in
or out, including water. He was told he needed to throw away his water; Matthew
protested. Matthew also announced that he had other members of his party inside and
needed to go back in to get them. Roland told him to use a cell phone to inform the others
of his location. At this point, Roland alerted Officer Choice Johnson, an off-duty officer
working that night at the 1 Up Bar, to the incipient problem with the persona non grata
Matthew Schreiber and Officer Johnson confirmed to Matthew that he could not take his
He may have passed out.
One of two bouncers present that night employed by the 1 Up Bar. Roland was also a
corrections specialist and had training in controlling and defending property as he had
been employed by Brinks.
1
2

water from the bar.

4. Officer Johnson also pointed Matthew in the direction of the cab station and told him to
take a cab home. Matthew argued with Officer Johnson that he just wanted to go back
inside and drink water. He also stated that he was from out of state and thus could not take
a cab home. He wanted to debate his level of intoxication. Officer Johnson told him to use
his cell phone to notify his friends inside but not to return to the bar or he would be taken to
DETOX.
5. After approximately 20 minutes, Matthew circled back around and attempted to get back
in the bar, standing in line pretending to be a new patron. Officer Johnson saw Matthew
trying to get back in and told him he was going to DETOX. Matthew was handcuffed
without incident. Officer Johnson and Matthew were near the CHAFA building, awaiting
the DETOX van, when Nate, Matthew's cousin, came out and asked Officer Johnson what
was going on. He was appropriately inquisitive and wanted to know if they could just take
Matthew home and explained that they were all there for a bachelor party. Brandon was
still inside clearing out the bill, but arrived shortly to find Officer Johnson, his brother and
Nate by the CHAFA building. Officer Johnson informed Brandon and Nate that Matthew
would be at 13th and Cherokee, explained that DETOX is not jail and is a medical facility,
and told them that they could pick him up there. He also informed them that if Matthew
proved not to be drunk, he would be released from DETOX.
6. Brandon was having none of this. He was mad that his brother - soon to be married - was
in handcuffs and was going to go to DETOX on the night of his bachelor party. Of course,
Brandon was completely unaware that his brother had been given an option to leave several
times and that he had tried to get back into the 1 Up Bar despite having been removed from
the bar. Brandon's method of persuasion was to become overtly hostile, and he started
shouting at Officer Johnson: "You are a fucking piece of shit. This is bullshit, you Denver
cops are always in trouble, you don't want to listen to anyone." Brandon demanded that
Officer Johnson release Matthew to him forthwith. 3 Officer Johnson explained that he
could not do that, and attempted to calm down Brandon by telling him and Nate that they
were not helping the situation. He stated again that DETOX is not jail and informed him
that Matthew could be picked up at 13th and Cherokee. The line to get into the One-Up bar
was beginning to wrap around the CHAFA building and Brandon's raised voice was
attracting attention and distracting Justin Dellinger who was looking at IDs to verify
entrance into the 1 Up Bar. Brandon was making a scene.
7. At this point, Officer Johnson, trying to disengage, moved the action several feet away to
a point under a HALO camera. He testified, "The group wasn't listening. You can't argue
with a drunk." He felt it was easier to move his handcuffed prisoner, Matthew, away from
the CHAFA building, as by now Brett and Brian, two other bachelor party attendees, had
joined the discussion. "They were [all] talking and arguing amongst themselves." Brandon
Matthew admitted to Internal Affairs that "he had to stand up for his brother" and he
"wasn't going to let his brother go to DETOX" on the night of his bachelor party. He
also admitted cursing at Officer Johnson and calling him a thug and a disgrace in order
to belittle Officer Johnson. He denied ever using the word "fuck."
3

continued his loud invective against Officer Johnson who was just listening with his arms
crossed. Justin Dellinger described Officer Johnson as calm and collected, notwithstanding
the fact that Brandon was "up in his face, yelling at him."
8. In particular, bouncer Roland testified that the partygoers were expressing animosity
towards Officer Johnson. "It was very hostile. A lot of F-bomb was being used." Officer
Johnson, Roland recalled, was silent and maintaining control of his prisoner and "not giving
in to their attempts to argue." And, he stated, "they were encircling him."
9. Roland was also in a position to observe the group's body language. Roland stated that
the group was in a confrontational posture which caused him - as a trained bouncer - to start
watching for "cues" that a fight might erupt. This was a reasonable fear, he said, given the
proximity of the party members to Officer Johnson and the F-bomb language being used.
As the confrontation continued for another 3-4 minutes, beyond the initial confrontation in
front of the CHAFA building which lasted approximately 15 minutes, he let Officer
Johnson know that he was there and could help if needed.
10. Both Officer Johnson and Roland had been trained to watch drunks, in particular, as
they are unpredictable. Roland testified that he saw Brandon starting to do the "LoDo
Shuffle," where neither he nor his group was backing away or obeying Officer Johnson's
orders to leave. Brandon in particular was informed - within Roland's earshot - to stop
interfering or he too would be going to DETOX. All five members of the bachelor party
were visibly intoxicated, shuffling and swaying. Roland testified that he heard two to three
warnings given by Officer Johnson to Brandon specifically which caused him to believe
that Brandon - of all of the individuals encircling Officer Johnson - was getting ready to
fight. Brandon was also flipping his hat on and off which is another cue for being ready to
fight. In particular, Brandon said to Officer Johnson, "fuck you, I'm not going anywhere."
11. This entire encounter had lasted about 40 minutes with Matthew and another 15 more
with Brandon. By now, Officer Johnson had moved the entire party to be under a HALO
camera which has a fisheye lens. He knew it would record what was going on. Brandon
told his brother Matthew to run, "he ain't going to do shit." Manager Chad Taulbee could
hear Officer Johnson repeatedly telling the group to break up and leave. He also heard
Officer Johnson warn all of them that they were going to DETOX if they didn't leave. After
telling Brandon that he was going to go to detox, and Brandon responded, "fuck you, I'm
not going anywhere," Officer Johnson told him to turn around as he was going to handcuff
him. At this point, Brandon stated, "don't fucking touch me." He also stated, "You are an
asshole, fuck you, you are not taking my brother." "Run," he said again to his intoxicated
brother in handcuffs.
12. The HALO video captures only a short portion of the entire encounter. It shows five
men surrounding Officer Johnson. It shows Nate trying to pull Brandon away from the
scene and Brandon resolutely shrugging off Nate's hands and efforts. It shows Brett and
Brian fist-bumping Brandon and leaving out of the range of the HALO camera. Nate,
Brandon and Matthew are all swaying unsteadily on their feet.

13. When Brandon refused to present himself for handcuffing, Officer Johnson used a twohanded maneuver recognized as Krav Maga, an acceptable form of arrest control technique
taught by the Denver police. It involves a two point contact with the officer's hands to the
resisting party's shoulders; it is intended to cause the individual to lose his/her balance. He
used it because Brandon was resisting arrest, was intoxicated, was agitating his brother to
run, and was exhibiting behaviour that a reasonable officer could and should have believed
could lead to an aggressive encounter endangering not only Officer Johnson's safety but that
of his prisoner, Matthew Schreiber. 4 Officer Johnson told Internal Affairs, "the way
[Brandon] had been behaving, I didn't know what he was going to do."
14. Even Matthew Schreiber admitted to Internal Affairs that in the moment right before
Brandon was shoved, Officer Johnson took an aggressive stance in front of Brandon,
pointed down the street and told Brandon to leave. Instead of complying, according to
Matthew, Brandon lowered his head. Even according to Matthew the brother, Officer
Johnson gave no less than four warnings to Brandon to leave. (Exhibit 1(a)-7, bate stamp
000258).
15. Upon Officer Johnson's use of the hands to shoulders Krav Maga technique, Brandon
fell back, crumpling at the knees, landing on his rump, up the stairs. 5 He continued to
wrench himself away from Officer Johnson and to resist arrest and was ultimately brought
under control by Officer Johnson with minimal force. At this point, Brandon announced,
"you don't know who you are dealing with...I'll have your job." He suffered some minor
abrasions to his left elbow as a result of his resisting arrest and refused medical attention.
Only four months later did he seek medical attention.
16. From the HALO video, it can be seen that a young couple were on the steps above
Brandon's tussle with Officer Johnson. They were taking pictures and, by looking at their
body language and faces, they do not appear to be alarmed or concerned about themselves
or Brandon or his well-being.
17. Sergeant Suniga responded at 11:32 p.m. to take a Use of Force Report. Brandon
Schreibers attitude had mellowed somewhat, but he refused to allow Sergeant Suniga to
take a video of him, only still photos. He informed Sergeant Suniga and he might have
become a bit "emotional" with Officer Johnson. Sergeant Suniga noted that Brandon
appeared to be heavily intoxicated and by now was "very apologetic for confronting and
interfering with the officer."
18. Brandon's account to Internal Affairs two weeks later differed substantially from his
account to Sergeant Suniga: "My brother wasn't drunk, but fell asleep, when he snapped out
of sleeping, he was in handcuffs." He stated that Matthew reported to him that he
(Matthew) had been thrown around and abused by Officer Johnson. "So when I came out
and saw what was happening, I wanted to speak with the officer....He was really rude to me
and yelling at me, so I was just trying to have a conversation and, I don't know what
It was later determined that Matthew had a .11 BAC.
There is no evidence from anyone that he fell down the stairs after this maneuver
because there were no stairs to fall down.
4
5

happened, but suddenly I was being beaten up by this guy. Like I was choked slammed,
thrown down on the stairs, he almost choked me out, and you know, I had my hands up, I
wasn't resisting, and I was like, "okay, you know, let's figure this thing out" and he's
literally beating the crap out of me, almost to the point where I lost consciousness. And,
trying to have a conversation and the thing is we weren't drunk, we were just.. drinking a
little bit...and this guy kind of went nuts on us....it's pretty unbelievable how he came out of
nowhere and just starting beating the crap out of me."
19. District Attorney Doug Jackson refused to file criminal charges against Officer Johnson
for assault upon Brandon Schreiber. Jackson noted that the short HALO video (which has
no audio), viewed by itself with no other information, makes the push itself appear to be
unnecessary and unjustified. However, the DA explained in his decision not to press
charges, Brandon Schreiber's allegations of the event were in fact contradicted by the
HALO and that his statements about the evening would not be sufficiently credible to a
jury. Notably, Brandon's first outcry two weeks later was about being "beaten" and
"choked" not about being pushed over. At the scene, he made no complaints about anything.
20. The only way that Brandon Schreiber's version of events could be believed would be if
one discounts entirely three independent witnesses - Roland, Dellinger, and Taulbee, one
sober officer, one sober sergeant, all of whom were there and were eyewitnesses, and
believes Brandon Schreiber's (who was admittedly intoxicated and abusive) account of
random police violence coming out of nowhere. One would also have to believe that not
only did Officer Johnson push Brandon Schreiber over, but he also beat and choked him.
One would also have to believe that Officer Johnson also threw Matthew Schreiber around
and abused him. Finally, one would have to believe that the scene was devoid of any other
witnesses which is obviously counterfactual given the number of persons milling around the
1 Up Bar and persons on the stairs videotaping Brandon as he landed on his buttocks and
scuffled with Officer Johnson. Had anything gone down that appeared inappropriate, it is
more likely than not that 911 would have been flooded with calls complaining about police
brutality. Instead, the crowd seemed to be happy that Brandon was being removed,
according to the Manager of the 1 Up Bar.
The Departmental Order of Discipline
21. Brandon was charged with two municipal ordinance violations, interference and
resisting, and had an arraignment date of August 27, 2014. On August 11, 2014, he filed a
complaint against Officer Johnson alleging that "as he tried to discuss the available options
regarding his brother's detention," Officer Johnson treated him rudely and used physical
force against him unnecessarily."
22. For reasons that are unclear, the "use of force" allegation by Brandon which was about
"choking" and "beating" seems to have been automatically discounted by the Department as
not credible which focussed instead on the "push or shove" shown in the HALO video. In
fact, the "push or shove" is the sole issue in this case.

23. On March 23, 2014, Deputy Director of Safety Jess Vigil [hereafter the DDS or DDS
Vigil] issued the Departmental Order of Discipline which found that Officer Johnson "used
inappropriate force and violated departmental policies when he aggressively shoved the
complainant to the ground at a time when the complainant was posing no credible threat to
officer safety and was not engaged in any action that indicated he was an escape risk."
24. He found that Petitioner violated RR-306, not because of any "choking" or "beating"
but because of the pushing which caused Brandon to crumple at the knees and to sit down
backwards on the stairs.
25. The basis for this finding was that the "complainant is seen falling backwards down
stone or concrete steps."
26. The Order also states, "although he was telling his brother to run, the complainant was
doing nothing that indicated he would help his brother escape from custody." "Officer
Johnson could have issued verbal orders and commands...but he issued no such orders or
commands." "Although Brandon was "refusing to place his hands behind his back," he was
not taking any physical action to prevent Officer Johnson from taking him into custody."
27. DDS Vigil faulted Officer Johnson for "closing the gap" on Brandon when he refused
to allow himself to be handcuffed. He also faulted Officer Johnson for being truthful in
stating to IA that he didn't intend to push him over, but that he intended to knock him off
balance so he could handcuff him.
28. The Order states: "As noted above, Officer Johnson was being berated by the
complainant. The complainant was ignoring commands to leave the area. He was telling
his brother to run."
29. Despite these internally contradictory findings by the Director of Safety, he makes the
sweeping conclusory statement that "given the totality of the circumstances, [the push] was
more likely than not an impatient, if not angry, response to the complainant's offensive
behavior, and not a reasonable and appropriate use of force." The Director also stated "the
misconduct adversely tarnished the professional image of the Department in that this
happened in public and was witnessed by several individuals and it had a serious an adverse
impact on relationships with the community."
CONCLUSIONS OF LAW
1. There are different legal standards for use of force depending upon whether the force
used is non-deadly or deadly. Non-deadly force is reasonable if a jury (or judge) is
persuaded that a reasonable officer in the same situation could have believed the same force
was necessary. Graham v. Connor, 490 U.S. 386, at 397; Lee v. Gerraro, 284 F.3d 1188,
1197 (11th Cir. 2002)(slamming head against a car trunk after handcuffing unreasonable);
Spencer v. Rau, 542 F. Supp.2d 583, 592-594 (W.D. Texas 2007)(use of arm bar technique
to handcuff resisting suspect not unreasonable). See also Ceccacci v. Civil Service
Commission, Case No. 13 CV 32789 (hitting a drunk bystander/victim with a closed right
hand unreasonable despite the provocation of being spit upon).

2. For deadly force, the excessive force standard is articulated in Tennessee v. Garner,
471 U.S. 1 (1985), and more recently, was defined and nuanced, in State v. White, 142 Ohio
St. 3d 277 (Decided February 18, 2015). The inquiry is quite different: First, the totality of
the circumstances must be considered, among other things, second, the suspect must pose
a significant threat of serious physical harm to the officer or others, and third, the
suspect must be attempting to escape. Lower court, State v. White, 2013 Ohio 51, 60
and 61, adopted in Court of Appeals decision, affirmed in State v. White, supra.
3. Denver's Use of Force Policy OMS 105.01 incorporates both lines of case law without
explicitly distinguishing the two standards. Specifically OMS (1)(a) incorporates the
language of non-deadly force from Terry v. Ohio, 392 US 1 (1968), Johnson v. Glick, 481
F.2d 1044 (2d Cir. 1973, and Graham v. Connor, 490 U.S. 396 (1989).
4. In contrast, OMS 105.01 (4) (c)(1)(a)(b) and (c) regarding "objectively reasonable" force
options parrots the language of Tennessee v. Garner, a deadly force standard.
5. Ceccacci v. Civil Service Commission, Case No. 13 CV 32789 did not address the
differing standards pertaining to "use of force," whether it is deadly or non-deadly. Also,
there have been no Civil Service cases addressing the issue of whether an officer may be
disciplined under a deadly force standard for the use of non-deadly force.
6. DDS Vigil used the Tennessee v. Garner deadly force standard in punishing Petitioner
instead of the Graham v. Connor standard for non-deadly force. Specifically, he stated: that
"the totality of the circumstances" indicated that Officer Johnson "used inappropriate
force and violated departmental policies when he aggressively shoved the complainant to
the ground at a time when the complainant was posing no credible threat to officer
safety and was not engaged in any action that indicated he was an escape risk." This is
the language of OMS 105.01 (4)(c)(1)(a)(b) and (c) which is taken directly from Tennessee
v. Garner, supra, a deadly force case.
7. DDS Vigil did not consider or utilize the non-deadly force standard articulated in
Graham v. Connor, supra, which is set forth in OMS 105.01 (1)(a). The reasonableness of
a particular use of force must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight. The calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make split-second
judgments, in circumstances that are tense, uncertain, and rapidly evolving. The
reasonableness inquiry in an excessive force case is an objective one. OMS 105.01 (1)(a).
This language is extracted directly and exactly from Graham v. Connor, supra, the seminal
non-deadly force case cited above.
8. OMS 105.01 (1)(a) also describes the kinds of "resistance" an officer may encounter:
1. Psychological intimidation - non verbal cues in attitude, appearance, demeanor or
posture that indicates an unwillingness to cooperate.
2. Verbal non-compliance - verbal responses indicating an unwillingness to comply
with officer's directions.

3. Passive resistance - physical actions that do not prevent the officer's attempt to
control, i.e., going limp.
4. Defensive resistance - physical actions that attempt to prevent officer's control
including flight or attempt to flee, but do not involve attempts to harm the officer;
5. Active aggression - a threat, coupled with the present ability to carry out the
threat...which reasonably indicates that an injury to any person is imminent.
9. Brandon Schreiber engaged in resistance at levels 1, 2, 4, and 5. He tried to belittle
Officer Johnson with verbal invective and abuse 6 , he verbally refused to leave when
ordered to do so several times, he indicated defensive resistance by creating a scene and
disruption by refusing to leave which compromised Officer Johnson's efforts to protect the
prisoner (intoxicated brother Matthew), and he was actively aggressive by threatening to
run with Matthew and/or encouraging Matthew to run which reasonably indicated that an
injury to Matthew, at a minimum, was imminent.
10. The Krav Maga technique of a two-point "shove" or "push" is part of the training
received by Denver Police Officers. "Training in these techniques is designed to allow the
officer to develop the ability to recognize danger at the earliest states, react without
hesitation, and escalate and de-escalate with the appropriate level of force." (Exhibit 1(dd)98, bate stamp 000492). "The punch should penetrate the target. At the moment of impact,
the weight should be in the punch. Recoil quickly, bringing the hand back to its starting
position." (Exhibit 1-(dd)-99, bate stamp 000493).
11. Officer Johnson executed this move perfectly. He told IA that, "if I do a quick thrust, in
my mind..that was my option. That's what I thought would be best, if I do a quick thrust,
knock him off balance, and then immediately try to take him into custody and I thought
those would be my best options." (Exhibit 7-19, bate stamp 001386). The fact that Brandon
fell up the stairs 7 behind him occurred no doubt as a result of the 'push or shove' and his
intoxication. Although taken out of context, the move looks abrupt and surprising, there
was zero evidence that Officer Johnson utilized the Krav Maga maneuver because he was
"impatient" or "angry." Indeed, it was the opposite. He tolerated several minutes of
Matthew and Brandon before he did anything, asking each to cooperate by leaving, then
commanding them to cooperate by leaving, and then taking both into custody after
tolerating several minutes of the LoDo shuffle, abusive behavior by Brandon made
infinitely worse by his instruction to his intoxicated brother to run. He told IA that he used
the Krav Maga maneuver precisely because it would be a quick thrust to knock Brandon off
balance so that he could take control of him after he had been telling his brother to run.
Exhibit 7-24, Bate stamp 001391. This is a less violent maneuver than a twist lock
Despite his statements that he never resisted arrest or said "fuck you" to Officer
Johnson, DDS Vigil found this not credible.
7 The Deputy Director of Safety made an error in asserting that Brandon was "pushed
down the stairs" a move that obviously would have been much more dangerous to
Brandon. Brandon landed on his butt because he was shoved up a set a stairs.
6

routinely used to cuff a non-compliant individual. If they pull away, a spiral fracture can
result. Brandon never complained about the push or shove. He complained about being
"choked" and "beaten."
12. DDS Vigil stated that he had never heard of Krav Maga and didn't know that it was part
of DPD training. He was also unaware that Krav Maga decreases the risk of injury to a
citizen. He was also unaware that officers are trained to look for cues that a fight is about to
erupt. He admitted he had no knowledge of officer training on these points. DDS Vigil
speculated that if Officer Johnson had not used the thrust, there would have been no
struggle on the ground. There was no evidence for this and Brandon had already indicated a
verbal resistance to arrest, "don't fucking touch me." He also speculated that "it makes no
sense to close the gap" if an officer feels threatened. In fact, it makes a great deal of sense
and is the way officers are trained, to make a surprise move against a potential assailant.
The fact that it looks violent on a 20 second piece of non-audio video does not render this
technique excessive or unnecessary force.
13. DDS Vigil said that he felt that because Brandon's hands were in his pockets, he was
less dangerous. Others in law enforcement testified that when someone is not showing their
hands, they are likely to be more dangerous and officers are trained to assume that a
weapon is in a pocket. DDS Vigil testified that Brandon had done nothing to cause Officer
Johnson to believe that anyone was going to flee. This is contradicted by the Departmental
Order of discipline itself finding that Brandon was telling his brother to run. DDS Vigil
was also unaware that two other security officers had told Johnson that they would be
standing by as they observed the situation unfolding, as they too feared for Officer
Johnson's safety as he was encircled by five unhappy, tired and intoxicated men who had
been drinking all day.
14. As a matter of law, Petitioner should not have been required to prove compliance with
a Tennessee v. Garner deadly use of force standard when he employed non-deadly force in
a Graham v. Connor situation.
STANDARD OF REVIEW
1. Rule 12, Section 8 D. CONDUCT OF HEARINGS requires the Department of Safety to
proceed first and, acting through the City Attorney, shall offer evidence in justification of
the departmental action. The Department of Safety shall present sufficient evidence to
create a reasonable inference of the correctness of the sustained Rule violations and the
imposed penalty as contained in the departmental order of discipline. The evidence offered
initially by the Manager of Safety shall be limited to evidence, including materials,
considered as the basis of the Order (generally, the Internal Affairs investigation).
2. Secondly, the Hearing Officer shall give due weight to the necessity of the maintaining
by the Manager of Safety of administrative control of the respective Department., Rule 12,
Section 9 (B)(1), citing Charter 9.4.15(D).

10

3. Assuming that the Department of Safety clears the initial burden of proof, then the
Petitioner has the burden to present evidence which demonstrates that the Manager's
decision "concerning policy Considerations" is clearly erroneous and/or that a "sustained
Rule Violation" is clearly erroneous.
4. As an initial observation, the Department of Safety failed to offer sufficient evidence in
justification of the departmental action suspending Officer Johnson for 30 days for a
violation of RR-306. Among other things, there were serious factual errors, specifically,
(a) That Brandon was pushed down the stairs; in fact he was pushed up a set
of stairs onto his buttocks;
(b) That Officer Johnson was "angry" or "impatient" which is a speculation
not based on any facts and which is in contrast to the testimony presented;
(c) That the Krav Maga move was not sanctioned by the Denver Police
Department and was not a proper arrest control technique; whereas, this is in contrast to the
training exhibit presented at the hearing;
(d) That the force used by Petitioner occurred when "Brandon posed no
credible threat to officer safety and was not engaged in any action that indicated he was an
escape risk," which is a deadly force standard;
(e) That DDS Vigil failed to use the non-deadly force standard of a
reasonable officer confronted with the same or similar circumstances.
5. As such, the Hearing Officer finds that the Department of Safety failed to offer sufficient
evidence in justification of the departmental action suspending Officer Johnson for 30 days
for a violation of RR-306 which states that an officer shall not use inappropriate force in
making an arrest. DDS Vigil does not fault Officer Johnson for effecting an arrest and
found no "choking" or "beating." The arrest was effected by the use of a Krav Maga
technique which is safer to an arrestee than other procedures. Any speculation about other
options that might have been available violates the very essence of Graham v. Connor
which precludes a 20/20 hindsight analysis of non-deadly force.
6. Even if the preliminary burden of proof was somehow met by the Department of Safety,
Petitioner met his burden of proof in showing that the Departmental Order of Discipline
entailed important policy considerations of what elements must be present for an officer to
elect to use force in a non-deadly force situation. Deadly force requirements were applied to
the use of force in a non-deadly force situation. In addition, a disciplinary Order of
Discipline which contradicts itself entails policy considerations which render discipline
based thereupon clearly erroneous. See discussion above 23-28. Rule 12, Section 9
(B)(1)(b).
7. Finally, Petitioner met his burden of proof in showing that the sustained Rule violation
was unsupported by any credible evidence, thus rendering the sustaining of that Rule
violation clearly erroneous.

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ORDER
The Department of Safety failed to present sufficient evidence to create a reasonable
inference of the correctness of the sustained Rule violation RR-306. Rule 12, Section 8
(D)(2). The Manager of Safety, acting through its Deputy Manager of Safety Jess Vigil,
applied a deadly force standard to the use of non-deadly force and applied 20/20 hindsight,
which is a policy consideration of considerable importance and is clearly erroneous.
Finally, the decision of the Manager of Safety, acting through its Deputy Manager of Safety
Jess Vigil, sustaining a Rule violation RR-306, contrary to the overwhelming weight of
evidence, was clearly erroneous. The Order of Discipline is not sustained. Officer Johnson
shall be made whole by restoring the thirty (30) days suspension.
NOTICE OF APPEAL
Pursuant to Charter 9.4.15(E) and Rule 12 11(A)(1) and (2), the decision of the Hearing
Officer may be appealed to either the Civil Service Commission or directly to District
Court. Any appeal to the Commission shall be initiated by filing a Notice of Appeal with
the Commission, within fifteen (15) calendar days of the date of the certificate of service of
the Hearing Officers decision by the Commission. Any appeal to District Court shall be
initiated in accordance with the Colorado Rules of Civil Procedure currently in effect.
Dated this 18th day of July, 2015

/s/ Terry Tomsick

Terry Tomsick
Hearing Officer

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CERTIFICATE OF MAILING
I hereby certify that on this 18th day of August, 2015, I have served the foregoing
FINDINGS, CONCLUSIONS AND ORDER by in Case No. 15 CSC 06, In the matter of
Choice Johnson (P03021), by arranging that a true and correct copy be electronically filed
by email to:

Richard Stubbs
Assistant City Attorney

Richard.Stubbs@denvergov.org
Dlefiling.litigation@denvergov.org

Jonathan Cross, Esq.

jcross@crossliechty.com
ldevico@crossliechty.com

Cc: Terry Tomsick, Hearing Officer

CIVIL SERVICE COMMISSION

/s/ Jeannette Madrid
By: Jeannette Madrid

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