AURORA | A district court judge has sided with an Aurora cop fired last year for a variety of infractions, including calling a man that suffered brain damage after he was shot during a police confrontation, a “marshmallow head.”
The decision from Arapahoe County District Court Judge J. Mark Hannen means Officer John Falco will likely stay on the force for the foreseeable future, but Falco isn’t out of hot water yet. His lawyer, Brian Reynolds, said Falco is still facing discipline in the March 2011 shooting case and will likely be fired again in the coming weeks, this time for his role in the shooting.
Aurora police Chief Dan Oates first fired Falco last year for cursing at a teen involved in a car crash, arguing with a city attorney, babysitting his grandson while working security at city hall and making disparaging remarks about Yvgeni Straystar, the theft suspect Falco shot in March 2011.
Falco appealed his firing to the city’s civil service commission last year and the commission overturned his firing. The commission said Falco’s only violation was babysitting on the job and said the other infractions were not severe enough to warrant discipline.
The city appealed that decision to district court last year and Hannen handed down his decision Friday.
Aurora City Attorney Charlie Richardson said he will not appeal the ruling.
Hannen said the bar for overturning the commission was a high one that requires a judge find that the ruling was “so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority.”
Hannen said that wasn’t the case here. Instead, he said there was ample evidence to back up the commission’s ruling. He said that while Falco admitted cussing at the traffic accident and disparaging Straystar, only police officers heard those comments, not members of the public.
And while babysitting on the job was risky, Hannen said there was no evidence that Falco neglected his duties while watching the child.
Falco has been on desk duty since the commission reinstated him last year.
Reynolds said he isn’t sure what assignment Falco will get now that the district court has ruled, but he said that decision will be up to Chief Oates.
In it’s ruling last year, the commission ordered Oates to reinstate Falco to his job as a patrol officer, but Oates balked at that, saying the commission can’t order him how to deploy officers.
As part of the city’s appeal, city lawyers and the civil service commission worked out a deal that, among other things, stipulates that the commission can overturn the chief’s discipline, but they can’t go beyond ruling that an officer should have their rank reinstated.
In the Straystar shooting, police say Falco and another officer fired at three thieves in a truck speeding out of a car lot where the men were stealing car parts. Straystar was shot in the head and paralyzed, while Oleg Godenko was killed.
Prosecutors cleared Falco of criminal wrongdoing in the shooting, but the city settled out of court with Straystar for almost $400,000 in part because the officers violated a department directive when they fired at a moving vehicle.
While discussing the settlement with other officers, Falco called Straystar a “marshmallow head.”
Richardson said Chief Oates is reviewing the shooting case and will likely announce the findings of the investigation in the coming weeks. A police department spokesman referred all questions to Richardson.
In an email after Judge Hannen’s ruling, Reynolds told Falco he “will probably get fired soon.”
With the civil service commission ordering Oates to reinstate Falco and a judge finding in his favor also, isn’t that enough to end this Chief’s efforts to fire this officer?
From The Gambler this sage advice Chief:
You got to know when to hold ’em, know when to fold ’em,
Know when to walk away and know when to run.
At this juncture another negative move by Chief Oates towards Falco and his enjoyment of gainful employment, will appear as though he’s determined to destroy this mans quality of life and career just to soothe his own bruised ego.
I think it’s high time you fold ’em and then walk away Chief.