Recommendation 91

Recommendation 91 – “Create predictable disciplinary measures in violations of use of force policies including automatic termination in cases where life is lost at the hands of law enforcement where the victim was unarmed.”

Key Agencies – Denver Police Department; Denver Sheriff Department; Department of Public Safety

Executive Branch Response Status – Previously implemented to the extent feasible, as outlined below

Executive Summary

  • There are specific legal requirements regarding when peace officers are authorized to use lethal force. In addition to constitutional requirements outlined in case law, use of lethal force requirements are addressed in Colorado Revised Statutes § 18-1-707.
  • The use of force, particularly lethal force, is one of the most important issues that can impact the public’s trust and relationship with the Department of Public Safety and its agencies. Denver Police Department (DPD) and Denver Sheriff Department (DSD) policies address the use of lethal force allowed in compliance with applicable law. There are specific and predictable measures in place to address discipline for officers and deputies who violate the use of force policy.
    • Officers may use lethal force to make an arrest only when all other means of apprehension are unreasonable given the totality of the circumstances and
      1. The arrest is for a felony involving conduct including the use or threatened use of deadly physical force;
      2. The suspect poses an immediate threat to the officer or another person; and
      3. The force employed does not create a substantial risk of injury to other persons.
      4. The use of lethal force is considered to be justified under the totality of the circumstances if the officer has an objectively reasonable belief that a lesser degree of force is inadequate and has objectively reasonable grounds to believe, and does believe, that the officer or another person is in imminent danger of being killed or receiving serious bodily injury.
  • The DPD disciplinary handbook(PDF, 1MB) provides the following with respect to the use of force:
    1. Officers shall not use inappropriate force in making an arrest or in dealing with a prisoner or any other person.
    2. A violation of Inappropriate Force may be a Conduct Category D through F violation.
    3. A conduct D violation applies to: Conduct Substantially Contrary To The Values of Its Mission, Operations or Professional Image, or that Involves a Demonstrable Serious Risk to Officer or Public Safety.
    4. A conduct E violation applies to: Conduct That Involves the Serious Abuse or Misuse of Authority, Unethical Behavior, or an Act that Results in Actual Serious and Adverse Impact on Officer or Public Safety or to the Professionalism of the Department.
    5. A conduct F violation applies to: Any Violation of Law, Rule or Policy Which Foreseeably Results in Death or Serious Bodily Injury to Another Person; or Constitutes a Willful and Wanton Disregard of Department Values; or Involves Any Act Which Demonstrates a Serious Lack of the Integrity, Ethics, or Character Related to an Officer’s Fitness to Hold the Position of Police Officer; or Involves Egregious Misconduct Substantially Contrary to the Standards of Conduct Reasonably Expected of One Whose Sworn Duty is to Uphold the Law; or Involves Any Conduct Which Constitutes the Failure to Adhere to Any Contractual Condition of Employment or Requirement of Certification Mandated by Law.
  • For a conduct Category F violation, the presumptive penalty is termination.
  • When a death occurs as the result of an officer’s actions, the involved officer or officers will be removed from any line duty assignment, pending the results of the administrative review.
  • This Discipline Handbook applies to all alleged misconduct and its development included community input. Both the DPD Operations Manual and Discipline Handbook are publicly available online and updated regularly to reflect any policy changes.
  • Specific to the Denver Sheriff Department, the DSD Department Order 1.00.3013, Use of Force Policy, can be accessed here, and provides in part the following:
    1. Deputy Sheriffs may use deadly force only in response to an incident of Aggravated Active Aggression (defined as a deadly force encounter)
    2. For deadly force occurring outside of DSD Jail Facilities, deadly force may only be used when all other means or apprehension are unreasonable given the circumstances and:
    3. In all instances, the use of deadly force by a deputy against an individual is authorized only if the deputy has an objectively reasonable belief that a lesser degree of force is inadequate and there are objectively reasonable grounds to believe, and the deputy does believe, that they or another person is in imminent danger of serious bodily injury or of being killed.
      • the arrest is for a felony involving conduct including the use or threatened use of deadly physical force; and
      • the suspect poses an immediate threat to the deputy or another person; and
      • the force employed does not create a substantial risk of injury to other persons.
  • The DSD disciplinary handbook provides the following with respect to inappropriate uses of force, pursuant to RR-300.22:
    1. Deputy sheriffs and employees shall not use “inappropriate force” on a person, which is any use of force on a person that falls within the definition of “inappropriate force” established in the version of the DSD Use of Force Policy that is effective when force is used.
    2. A violation of RR-300.22, Inappropriate Force on a Person may be a Conduct Category D through F violation.
    3. A Conduct Category D violation applies to misconduct that, “ (i) is contrary to the guiding principles of the Department or interferes with its mission to provide care and custody to inmates in accordance with those guiding principles; (ii) substantially interferes with the Department's operations or professional image; (iii) involves a demonstrable risk to the safety of a deputy sheriff, an employee, a detainee, or the public.”
    4. A Conduct Category E violation applies to misconduct that “(i) foreseeably results in bodily injury or otherwise results in an actual adverse impact on the safety of a deputy sheriff, an employee, a detainee, or the public; (ii) involves unethical behavior or a serious misuse of authority.”
    5. A Conduct Category F violation applies to misconduct that, “(i) foreseeably results in death or serious bodily injury; (ii) constitutes a willful and wanton disregard of Department guiding principles; (iii) involves any act so serious as to demonstrate a lack of the integrity, ethics, character, or fitness to hold the position of Denver deputy sheriff; (iv) involves any serious or abusive conduct contrary to the standards of conduct reasonably expected of one whose sworn duties are to uphold the law and to provide for the care and custody of detainees; or (v) involves any conduct that constitutes the failure to adhere to any conditions required by law, contract, or policy for employment as a Denver deputy sheriff.”
    6. For a Conduct Category F violation, the presumptive penalty is termination.
  • Pursuant to Department Order 1.00.2012, “If a death or serious bodily injury has resulted from a use of force, the deputy will be removed from their line of duty assignment and/or placed on paid leave pending the investigation. The circumstances of each incident will determine how long the deputy will remain in this status.”
  • This Discipline Handbook applies to all alleged misconduct and its development included community input. Both the DSD Department Orders and Discipline Handbook are publicly available online and updated regularly to reflect any policy changes.
  • Additionally, both DPD and DSD operate under civilian oversight from the Executive Director of Public Safety (“EDoS”) and the Office of the Independent Monitor (“OIM”).  The EDoS issues orders of discipline by authority of the Charter. The OIM publicly reports on patterns of complaints, findings, and discipline annually and semiannually, which reports are made publicly available. The OIM actively monitors all officer involved shootings and in custody deaths and provides input on policy changes.
  • The Denver District Attorney’s Office (“DA”) also has a specific Officer-Involved Shooting Protocol, which it follows to determine whether any officer involved in a use of force that results in death should be criminally charged.
    • If criminal charges are not filed by the DA, a decision letter describing the shooting is issued and provided to the public. The letter summarizes the District Attorney’s legal review of the shooting and is independent of any administrative investigation and review.
  • Related to the second part of the Recommendation, the law does not allow “automatic termination in cases where life is lost at the hands of law enforcement where the victim was unarmed.” Government employees are considered to have a property interest in their job which cannot be taken away by the government without due process. Due process guaranteed by the U.S. and Colorado Constitutions requires that officers and deputies are given notice and an opportunity to be heard prior to the implementation of any type of discipline. When an officer or deputy uses lethal force, the totality of the circumstances is analyzed and a disciplinary determination made based on that specific analysis, which includes statements made by the officer. The Discipline Matrix for both agencies allows for aggravating or mitigating factors to be considered.  The decision-maker then determines appropriate discipline based upon the Matrix, which may include termination depending upon the circumstances.
  • Both DPD and DSD also have programs/processes in place to work with employees after a critical incident such as the use of force resulting in death to provide supportive resources and gradual return to full operational duties when appropriate. The DPD Victims Assistance Unit (“VAU”) conducts outreach to and coordinates supportive services for families when there is a death during a critical incident, which can involve investigation updates and communications if desired by the family. 

Recommendation Highlights

  • Use of force is one of the most important issues that can impact the public’s trust and relationship with the Department of Public Safety and its agencies. There are specific legal requirements when officers and deputies are authorized to use lethal force. These are outlined in the Executive Summary.
  • Denver Police Department (DPD) and Denver Sheriff Department (DSD) policies addressing the use of lethal force are provided in the Executive Summary. There are specific and predictable measures in place to address discipline for those who violate the policies.
  • Both DPD and DSD operate under civilian oversight from the Executive Director of Public Safety (“EDoS”) and the Office of the Independent Monitor (“OIM”).
  • The Denver District Attorney’s Office (“DA”) also has a specific Officer-Involved Shooting Protocol, which it follows to determine whether any officer involved in a use of force that results in death should be criminally charged.
  • The law does not allow automatic termination as described in the Recommendation. Government employees are considered to have a property interest in their job that cannot be taken away without due process. The relevant disciplinary procedures are described in detail in the Executive Summary.
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