dissenting.
Because I have concluded that Denver Police Department Operations Manual § 8.18 (Ops. 8.13) is void for vagueness and violates the officer's rights to substantive due process, I respectfully dissent.
The hearing officer found, with support in the record, that Denver police officers receive over three months of training at the academy and fourteen weeks of field observation. They are taught to use lethal force as a last resort; put themselves in a position to act rather than react,; make the suspect come to them rather than go to the suspect; expect the unexpected when handling "in-progress" calls; and communicate, move, and shoot (tactical principles). Officers are not required to retreat from a confrontation. With respect to edged weapons such as knives, officers are taught that a suspect can cross twenty-one feet and stab an officer in less time than that officer can draw and fire his weapon. Here, the officer, by placing himself between the victim and the other occupants of the residence, was within twenty feet of the victim from the outset.
The evidence at the hearing included statements from each witness that it is impossible to teach an officer how to deal with any one specific situation. In addition, witnesses testified that the officer used good tactics in going to the door when he first arrived, but bad tactics in failing to disengage the victim after the hostages were safe; that the officer should have used either the door, by closing it, or bushes in the yard as a barrier between him and the victim; that he should have spoken with the family concerning the victim; that he should have used more caution; that he was required to intervene immediately due to the priority nature of the call; that it either was or was not a good tactical decision to order the victim to come out; that immediate action was required; that a suspect ultimately controls the result of a situation; that, given the victim's compliance with the officer's initial command to "come out," he demonstrated a compliant attitude and consequently not disengaging and ordering him to drop the knife were appropriate; that by disengaging and closing the security door, nothing less than deadly foree could have been used had the victim come out with the weapon; that suspects present far greater danger outside due to a larger containment perimeter; that onee visual contact is made with a suspect, an officer should not break that contact; and that no reasonable officer would have considered closing the door.
The Manager of Safety previously had concluded that at the time the officer used deadly force, that foree was justified. The inquiry relates to the officer's acts, or failure to act, prior to that point in time. Those events occurred in the eight seconds that elapsed between the victim's mother telling the officer that the victim was behind the door with a knife and the fatal shots.
I recognize that in certain limited and special arenas, such as prison or military discipline, rights to procedural and substantive due process may be limited and courts are reluctant to intervene. See Lawson v. Zavaras, 966 P.2d 581, 585 (Colo.1998) (prisons); People v. Sisson, 179 P.3d 193, 196-97 (Colo.App.2007) (same); Green v. Nadeau, 70 P.3d 574, 576 (Colo.App.2003) (same); United States ex rel. French v. Weeks, 259 U.S. 826, 335, 42 S.Ct. 505, 66 L.Ed. 965 (1922) (military); Dodson v. Zelez, 917 F.2d 1250, 1261 (10th Cir.1990) (same).
However, police officers and fire fighters subject to disciplinary proceedings are entitled to all due process protections afforded by statutory and decisional law. Cain v. Civil Serv. Comm'n, 159 Colo. 360, 366, 411 P.2d 778, 781 (1966), Bratton v. Dice, 93 Colo. 593, 603, 27 P.2d 1028, 1031-82 (1988); see also Frazzini v. Wolf, 168 Colo. 454, 458, 452 P.2d 13, 15 (1969); City of Miami v. F.O.P. Miami Lodge 20, 571 So.2d 1309, 1329 (Fla.Dist.Ct.App.1989).
When a police officer is disciplined or terminated, the party imposing the sanction bears the burden of proof. See Dep't of Inst. v. Kinchen, 886 P.2d 700, 709 (Colo.1994) (citing Heidebur v. Parker, 505 S.W.2d 440, 443 (Mo.Ct.App.1974)). A determination imposing a penalty on a policeman must be justified, and it must appear the officer was guilty of some breach of duty. Petersen v. Civil Serv. Bd., 67 Cal.App. 70, 227 P. 238, 240 (1924) (breach of duty must be clear *352under charter provisions to subject officer to punishment).
Both the United States and Colorado Constitutions prohibit the state from depriving a person of life, liberty, or property without due process of law. See People v. Bovard, 87 P.3d 215, 216 (Colo.App.2003), rev'd, 99 P.3d 585 (Colo.2004). Procedural due process, on the one hand, requires fundamental fairness in procedure and is met if the party is provided with notice and an opportunity to be heard. Avalanche Indus., Inc. v. Indus. Claim Appeals Office, 166 P.3d 147, 150 (Colo.App.2007), aff'd sub nom. Avalanche Indus., Inc. v. Clark, 198 P.3d 589 (Colo. 2008). Substantive due process, on the other hand, guarantees that the state will not deprive a person of those rights for arbitrary reasons regardless of how fair the procedure is. Brammer-Hoelter v. Twin Peaks Charter Acad., 81 F.Supp.2d 1090, 1100 (D.Colo. 2000).
Substantive due process requires the regulation or government action be reasonable, as distinguished from arbitrary or capricious. Salazar v. Am. Sterilizer Co., 5 P.3d 357 (Colo.App.2000). If the right being abridged is fundamental, courts apply the strict seruti-ny test to the regulation; if the right is not fundamental, the regulation need only bear a rational relationship to a legitimate state objective to survive constitutional muster. Lorenz v. State, 928 P.2d 1274, 1277 (Colo.1996).
A law is void for vagueness, in violation of due process, if its prohibitions are not clearly defined. Coalition for Equal Rights, Inc. v. Owens, 458 F.Supp.2d 1251, 1262 (D.Colo. 2006), aff'd, 517 F.8d 1195 (10th Cr.2008). The void for vagueness doctrine is rooted in the right to due process of law, which requires a law to provide fair notice of the conduct that it proclaims unlawful; a law offends due process if its standards are so ill-defined as to create a danger of arbitrary and capricious enforcement. People v. Shell, 148 P.3d 162, 172 (Colo.2006). A government regulation may not sweep unnecessarily broadly and must provide sufficient standards to guide administrative bodies in exercise of their functions to comport with due process. Assembly of Yahveh Beth Israel v. United States, 592 F.Supp. 1257, 1262 (D.Colo.1984). When a rule requires or prohibits an act in terms so vague that persons of common intelligence necessarily must guess at its meaning and differ as to its application, the regulation violates due process. Loonan v. Woodley, 882 P.2d 1380, 1389 (Colo.1994).
Notice of what is prohibited or required applies to administrative regulations. Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926), United States v. Akeson, 290 F.Supp. 212, 216 (D.Colo.1968); People v. Lamb, 732 P.2d 1216, 1218-19 (Colo.1987); Barham v. Univ. of N. Colo., 964 P.2d 545, 548 (Colo.App. 1997). An agency rule need not define statutory terms with linguistic precision in order to withstand a vagueness challenge, nor does a rule or statute have to specify every conceivable boundary of its application. Brighton Pharmacy, Inc. v. Colo. State Pharmacy Bd., 160 P.3d 412, 420 (Colo.App.2007). However, construction and application of administrative regulations must provide fair warning to persons to whom they are applicable. Akeson, 290 F.Supp. at 216. The "guiding principle" in a void for vagueness challenge is whether the terms of the regulation are sufficiently specific to apprise persons of ordinary intelligence, here trained police officers, of the particular conduct that will subject them to liability or whether the standards are so poorly defined as to create a danger of arbitrary and capricious enforcement. Electron Corp. v. Wuerz, 820 P.2d 356, 358 (Colo. App.1991).
Rules adopted by an administrative or regulatory ageney are presumed valid, and the challenging party must establish the rule's invalidity beyond a reasonable doubt. Barham, 964 P.2d at 548; Electron Corp., 820 P.2d at 357. Although courts extend deference to an ageney's interpretation of its own rules, they are not bound by it, particularly where the agency's interpretation is not uniform or consistent. See Williams v. Kunau, 147 P.3d 33, 36 (Colo.2006); Lobato v. Indus. Claim Appeals Office, 105 P.3d 220, 223 (Colo.2005).
While it is true that a vague regulation can be salvaged through prior, narrowing interpretation, Parker v. Levy, 417 U.S. 733, 734, *353751, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), a vague regulation cannot be saved through prospective "proper application" because such a rule contains no objective criteria for determining precisely what constitutes proper application. Bence v. Breier, 501 F.2d 1185, 1189 (7th Cir.1974). Thus, such a regulation is vague, not in the sense that it requires a person to conform conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all, and people of common intelligence necessarily must guess at its meaning. Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).
Conduct that exemplifies the highest standards of efficiency or safety for one person may not for another. See id. In several cases from other jurisdictions, regulations requiring the "highest standards of efficiency," without more, have been held unconstitutionally vague. See, e.g., Connors v. Crabb, 176 A.D.2d 1053, 575 N.Y.S.2d 199, 200 (1991) ("phrase 'highest standards of efficiency forced individuals of common intelligence to guess at its meaning" and thus was unconstitutionally vague); Slawinsk v. Milwaukee City Fire & Police Comm'n, 212 Wis.2d 777, 569 N.W.2d 740, 742-43 (App.1997) (trial court's sua sponte ruling that "highest standards of efficiency" standard was unconstitutional as overly subjective and vague required supplemental briefing; however, the court of appeals noted the ruling very well could be correct but the parties needed an opportunity to address the constitutionality issue; the trial court specifically found that "highest standards of efficiency" had no objective definition, no standard requisite level of disruption existed to merit discipline, and the phrase was subject to subjective application).
In cases upholding the phrase "highest standards of efficiency" against a challenge that it is unconstitutionally vague, additional provisions directed or limited its application and enforcement to specific conduct. See, e.g., Cox v. Sheriff's Merit Comm'n, 283 IIl.App.3d 742, 218 IIl.Dec. 739, 669 N.E.2d 1265, 1267 (1996) ("highest standards of efficiency" imbedded in definition of "unsatisfactory performance," which was "demonstrated by a lack of knowledge of the application of laws required to be enforced; an unwilling ness or inability to perform assigned tasks; the failure to conform to work standards established for the officer's rank, grade, or position"); Department of Pub. Safety & Corr. Servs. v. Howard, 339 Md. 357, 663 A.2d 74, 76 (1995) (rule required duties to be performed at "highest standards of efficiency"; unsatisfactory performance defined by "lack of knowledge, unwillingness or inability to perform assigned tasks, failure to conform to work standards established for the member's rank, grade, or position, or failure to take appropriate action to ensure compliance with Agency regulations"); Pennsylvania State Troopers Ass'n v. Pa. State Police, 667 A.2d 38, 839 (Pa.Commw.Ct.1995) ("highest standards of efficiency" included in sub-definition of "competency"); State ex rel. Hennekens v. City of River Falls Police & Fire Comm'n, 124 Wis.2d 418, 369 NW.2d 670, 674-75 (1985) ("highest standards of efficiency" not unconstitutionally vague where it was part of department rule forbidding officers from engaging in unbecoming conduct and contained further definition forbidding associations with persons under criminal investigation).
Likewise, rules compelling the "highest standard of safety" require additional particulars to direct application or enforcement. See, e.g., Earle v. Netjets Aviation, Inc., 2006 WL 1878920, *3 (S.D.Ohio 2006) (pilots subject to discharge for violating business practice of "highest standards of safety," which specifically occurs when consuming alcohol within twelve hours of flight departure time), aff'd, 262 Fed.Appx. 698, 2008 WL 282740 (6th Cir.2008); Johnson v. Nat'l Transp. Safety Bd., 979 F.2d 618, 622 (Tth Cir.1992) ("highest standards of safety" violated when pilot turned over flight controls to co-pilot with blood aleohol level of 0.14).
Recognizing that analogies are fraught with peril, I nevertheless posit one. We have had two relatively recent and serious commercial aircraft incidents following which the captains were immediately, universally, and deservedly considered heroes. The first was the controlled crash at Sioux City, Iowa, with *354some fatalities, after the loss of one engine and all of the hydraulics operating the tail-control surfaces. The second was a "ditching" in the Hudson River following a loss of power shortly after takeoff from LaGuardia Airport in New York City. Someone with all of the relevant data and a complex computer model might conclude that the optimum use of power in the first would have permitted a controlled landing, or that the use of optimum flying techniques in the second would have permitted arrival at Teterboro Airport in New Jersey, a destination considered but rejected by the captain, with altitude and airspeed to spare. Assuming for the purposes of my analogy only that the computer is correct in both instances, did these trained professionals fail to live up to "highest standards of efficiency and safety" and, if so, what in that language can be used to reach that conclusion?
The commission offers four cases in support of its contention that Ops. 8.18 is constitutional: (1) Stamm v. City & County of Denver, 856 P.2d 54 (Colo. (2) Barham, 964 P.2d 545; (8) Benke v. Neenam, 658 P.2d 860 (Colo.1983); and (4) Cooper v. Civil Service Commission, 43 Colo.App. 258, 604 P.2d 1186 (1979).
(1) At issue in Stomm was an executive order prohibiting employees from "being under the influence or impaired by aleohol" at work. 856 P.2d at 55. A division of this court held that the executive order's wording was sufficiently precise and capable of defined meaning that persons of ordinary intelligence need not guess at its meaning and that it reasonably forewarned those people. Id. at 56-57. The division also noted there was no danger of arbitrary or capricious enforcement. Id. at 57.
(2) In Barham, a tenured professor alleged that a code providing for termination of tenured faculty only for a "legally sufficient ground or reason" was unconstitutionally vague. 964 P.2d at 548. A division of this court held that the phrase supplied fair warning to the professor. Id. Even if it had not, the division found that upon several occasions, the professor had been informed of the policy, explicitly warned that his specific conduct was unacceptable under that standard, and thus received ample prior notice. Id. at 548-49.
(3) At issue in Benke was a statute providing the grounds for dismissal of a tenured teacher for "incompetency, neglect of duty, immorality, conviction of a felony, insubordination, or other good and just cause." 658 P.2d at 861. Our supreme court held the terms "incompetency" and "neglect of duty" were sufficiently precise such that persons of common intelligence need not guess at their meaning. Id.
(4) Finally, in Cooper, a Denver police officer contended that a police department regulation stating "[olfficers shall not unnee-essarily draw or display any firearms" was unconstitutionally vague. 48 Colo.App. at 261, 604 P.2d at 1188. A division of this court held that common knowledge of what was prohibited could be gleaned from the training officers received and that the regulation was sufficiently clear and understandable to the group to be valid and enforceable. Id. at 261-62, 604 P.2d at 1188-89.
However, at issue in each of these cases were regulations that contained language sufficiently precise to forewarn persons of ordinary intelligence what was prohibited conduct. The wording was definite enough to prevent arbitrary and capricious enforcement.
Buch is not the case here. In my view, Ops. 8.13 is unconstitutionally vague and cannot be enforced in a disciplinary proceeding. It does not give an officer prior warning that his or her conduct could fall, or has fallen, below the "highest standards of efficiency and safety." Nor could it reasonably forewarn persons of ordinary intelligence as to its meaning and application. The question here is whether the officer's conduct fell below the acceptable standards of police procedure based on Ops. 8.18's vague "highest standards of efficiency and safety requirements," including whether any prior notice and application of Ops. 8.18 existed or whether his conduct fell below the level of professionalism expected of him from his training. I cannot conclude it did. At best, Ops. 8.18 is an aspirational goal for, or a subjective standard of, a limitless array of conduct.
*355There is nothing in Ops. 3.18, nor in its context, which defines or limits its application. Nor is there anything in the history of its enforcement which would provide notice to an officer that it could be used to impose discipline for a tactical migjudgment. Without additional particulars or history guiding its application, I cannot conclude it would forewarn a person, or in this case an officer, of common intelligence what conduct it prohibits or requires.
The hearing officer found that Ops. 3.18 had never been used to discipline officers in deadly foree situations in the past, including three deadly force incidents-one as proximate to this incident as 2008-where officers shot suspects with bladed weapons but failed to use the best tactics; that deadly force situations were disciplined separately and used as training tools for the future; and that Ops. 8.13 had only been used as a disciplinary basis in two prior instances, both of which demonstrated an egregious breach of professional police conduct in non-deadly force encounters. These facts, as found by the hearing officer, are entitled to deference. Colorado-Ute Elec. Ass'n v. Pub. Utils. Comm'n, 760 P.2d 627, 640 (Colo.1988).
The phrase "highest standards of safety and efficiency" is not independently capable of specific, objective meaning because it defines no standard level of conduct to merit discipline. We note also that, since the officer's discipline in this incident, Ops. 8.18 has been revised to include more particularized, objective language with additional criteria directing its application. As a standard of performance, the blanket regulation requiring the "highest standards of safety and effi-clency" alone simply is too vague for meaningful application or notice as to what it prohibits.
Therefore, I would reverse the judgment and vacate the officer's ten-month suspension.