Gun Control

Colorado Judge Rejects Petition for a Gun Confiscation Order Against a Police Officer

The petitioner, who cited the officer's 2017 shooting of her son, had no standing under Colorado's "red flag" law.

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A Colorado judge yesterday rejected a woman's petition for a court order that would disarm the police officer who killed her son in 2017—a shooting that was deemed justified as an act of self-defense. Does this case illustrate the potential for abuse of Colorado's new "red flag" law, or does it show the law's safeguards are effective? Arguably both, but the case's sheer weirdness makes its broader relevance debatable.

On July 1, 2017, Cpl. Philip Morris, who works for the Colorado State University Police Department, fatally shot 19-year-old Jeremy Holmes, who was carrying an 11-inch bayonet knife and literally asking to be killed, on a street near the school's Fort Collins campus. Body camera footage of the encounter shows Morris ordering and begging Holmes to drop the knife dozens of times while backing away as Holmes continues to approach him. "I don't want to hurt you," Morris says. "Please drop the knife." As Holmes closes the distance between them, Morris says, "I'm going to try a taser." At this point Holmes runs toward him, prompting Morris to open fire.

Both the police department and the Larimer County District Attorney's Office cleared Morris of wrongdoing, but Holmes' mother has been publicly contesting that conclusion for years. Susan Holmes' latest act of protest is a January 9 petition seeking an extreme risk protection order (ERPO) against Holmes, who she says "used his firearm to recklessly & violently threaten and kill 19 yr old Jeremy Holmes." Holmes, she argues, should not be allowed to possess guns because he "poses a significant risk of causing personal injury to self or others."

To obtain an ERPO, which lasts for 364 days, the petitioner has to demonstrate a "significant risk" by "clear and convincing evidence." Holmes also could have sought a temporary, ex parte ERPO, which lasts up to two weeks and requires the petitioner to prove by "a preponderance of the evidence" that the respondent poses a significant risk "in the near future." If she had gone that route, Morris would not have been given an opportunity to rebut her allegations.

In this case, that probably would not have mattered, since ERPO petitions can be filed only by law enforcement officers, law enforcement agencies, or "family or household members." That last category is quite broad, but not broad enough to cover Holmes. She claimed on the petition that she has "a child in common" with Morris—meaning her son, who is not biologically related to the officer but was killed by him. At yesterday's hearing, Eighth Judicial District Chief Judge Stephen Howard rejected that reading of the law. "He said there was no evidence I had any standing," Holmes told Westword.

Holmes in any case refused to testify, saying Howard had demonstrated his bias against her by his handling of a lawsuit related to her son's death. After Howard rejected Holmes' request that he recuse himself, she declined to submit any evidence. It is hardly surprising that Howard rejected her ERPO petition.

Before Howard's ruling, Colorado House Minority Leader Patrick Neville (R–Castle Rock) cited Holmes' petition as an illustration of the dangers posed by the red flag law. "We predicted this and said a falsely accused person has no recourse other than hoping a DA files charges," he tweeted on Tuesday. "No recourse to recoup lost wages or reputation. One example of many about how this bill was so horribly written."

The law does say that "a person who files a malicious or false petition…may be subject to criminal prosecution for those acts." Larimer County Sheriff Justin Smith, who called Holmes' petition "a fraud," said on Facebook, "We are actively investigating this abuse of the system and we will determine what charges may be substantiated against the petitioner, Ms. Holmes." But it's not clear what charges against Holmes could be proven beyond a reasonable doubt, given her apparent sincerity in portraying Morris as a menace. And as Neville pointed out, the law does not give the victim of a "malicious or false petition" a right to sue the petitioner, although an earlier version of the bill included such a provision.

In Smith's view, this case "demonstrates the tremendous procedural deficiencies in the ERPO law—deficiencies I've spoken out about many times over the previous year." Not surprisingly, Attorney General Phil Weiser, a leading supporter of the law, has a different take. "This was a positive development," he told KMGH after the hearing. "It showed this law can't be abused for purposes of harassing an officer. The precedent has been set that this sort of petition is out of bounds, and [it] was summarily dismissed….This law is to protect people and to save lives, and if people try to come forward and use this law for other purposes, it's not going to be tolerated."

That is surely reading too much into the failure of Holmes' petition, which foundered for lack of standing and in any case would have been doomed by her refusal to testify. Even leaving those two issues aside, there was little risk that Morris would lose his Second Amendment rights based on a shooting that his department and the local D.A. had deemed justified. Ordinary citizens facing dubious allegations by estranged spouses, ex-girlfriends, in-laws, or housemates may not be so fortunate.

In such cases, judges have a strong incentive to err on the side of issuing orders, since the prospect of a preventable suicide or homicide looms large compared to the risk that someone will unfairly but temporarily be barred from possessing guns. The long list of potential petitioners, the ready availability of ex parte orders, the vagueness of "significant risk," and the admissibility of any evidence a judge considers relevant all serve to increase the likelihood that people will be deprived of their constitutional rights for no good reason.

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  1. since ERPO petitions can be filed only by law enforcement officers, law enforcement agencies, or “family or household members.”

    Well that’s convenient.

    1. Some of it is dependent, I’m sure, on if people file restraining orders and the officers involved determine that the person for whom the order is targeted is legitimately dangerous.

      It’s not likely the cops are going to go through a list of known gun owners, play “eenie-meenie-miney-mo” and file ERPOs for fun (although it wouldn’t exactly surprise me if and when that happens). Contrary to Weiser’s assertion, we’re still too early in the course of this law being active to claim that it can’t be executed via malicious intent. It’s really due more to the interpretation of the judge. So far, from what I understand, the petitions that have been rejected took place in non-Democratic leaning counties. It will be interesting to see the decision ratio by county once the year is up, especially if the sanctuary county sheriffs refuse to enforce the orders.

  2. So do they get warrants to seize the guns if they do pass an ERPO? How does it work?

    Judge: “You can’t have guns anymore”.
    Person: “Ok cool, I don’t have any due to an unfortunate boating accident”

    How do you proceed from there? With no search warrant the state can’t legally enter his property to look for/seize weapons. These aren’t criminal proceedings, so in theory no warrant can be issued since no crime has allegedly occurred. Is the law so flagrantly unconstitutional that they don’t need warrants at all?

    1. If I had to guess, the next step would be to issue a search warrant because “unfortunate boating accident sounds suspicious.”

      1. Really? You can read about civil asset forfeiture, and think they would bother with a warrant when they have tanks?

      2. Right, but sounding suspicious isn’t cause for a warrant unless you’re being suspicious about an alleged crime. There’s no crime in possessing a gun, even if someone else is uncomfortable about it.

        Even the civil asset forfeiture thing doesn’t line up, because in those cases the state already stole your property and they’re just doing paperwork to justify it. In the ERPO case, the state isn’t in possession of the guns (yet) and has no reasonable way to know if they even exist.

  3. It showed this law can’t be abused for purposes of harassing an officer.

    Thank God only second class citizens might be affected.

  4. fatally shot 19-year-old Jeremy Holmes, who was carrying an 11-inch bayonet knife and literally asking to be killed, on a street near the school’s Fort Collins campus

    Sounds like state-assisted suicide works well.

  5. This was a clean shoot, and she’s refusing to testify. What’s the problem here?

    1. That you didn’t read the article?

      1. That’s cheating!

  6. “…based on a shooting that his department and the local D.A. had deemed justified.”

    But the horrible truth is that “the department and the local D.A.” will ALWAYS deem a shooting justified. There in lies the problem. Every shot that an officer fires DOES NOT need to be a kill shot.

    1. The USSC has ruled otherwise. Shooting to wound is considered cruel and unusual punishment as any wound is potentially fatal and not aiming for the most fatal shot could potentially result in the victim suffering a prolonged and painful death. Additionally, how do you stop a charging assailant? Shots to the leg may not stop them (and have a high potential to rupture the femoral artery, which is possibly fatal). A shot to the arm will not stop a charging assailant. Besides shooting for a limb increases the likelihood of missing and hitting an innocent bystander. That is why you are taught to shoot center mass. Only in Hollywood are people taught to shoot to wound. In the real world that is an extremely bad and dangerous practice for the officer and innocent bystanders.

      1. Look at the Michael Brown case.
        As soon as the shot diagram came out it was easy to tell what happened.
        5 or 6 shots, rising in a line up from his thigh to his chest and shoulder.
        Exactly what you’d expect to see if a guy charges someone who draws his gun and starts shooting.
        That’s what it took to stop the guy

        1. That’s not ‘what it took to stop the guy’.

          That’s ‘that’s how many shots the cop fired before he noticed his target was incapacitated’.

          I’m not saying 5 shots weren’t needed. I’m saying the number of shots fired and the number of shots needed to stop a target have no correlation with each other.

          1. Perception is what matters here. The shot to the thigh may have been incapacitating, eventually but the officer did not perceive it that way at the time.

            1. That’s because a disabling shot, a fatal shot, and a stopping shot are all different dimensions.

              Someone loaded up on endorphins and used to trauma (think MMA fighter on amphetamines and heroin) won’t even notice a shot a the heart for 20+ seconds, which is more than enough time to kill you, after which they die too.

              That’s why in big game hunting the guide will often carry a huge gun as backup. Sure, you’re hunting with a .375 H&H, a .450, or a .50 BMG and that’s plenty to humanely kill even an elephant, but none of them will reliably stop a charging bull elephant at 50 feet before it tramples everyone to death and crushes your vehicle, so your guide is also carrying a 2 or 4 bore rifle which can instantly stop just about anything (for scale – the M16 shoots a ~70 grain bullet, the .308 rifle bullet is about twice that, the .50BMG is about ten times that at 600-800 grains, and the 2 bore rifle round is about 3500 grains – about 50 times the weight of an M16 round).

              At the other end of the spectrum, a .22 long rifle will easily kill if it hits the right spot, and just about any head shot that’s not at an oblique angle will do it, even though people have survived being shot more than 50 times with one by getting lucky and not hitting an artery.

        2. A fairly significant majority of fatalities in Iraq and Afghanistan were the result of wounds to the arms and legs. These shoot to wound idiots ought to check out a diagram of the major arteries, and their proxamation to major bones, then inform us where you can shoot someone to incapacitate them without using potentially lethal force.

          1. Didn’t mean majority, I meant to write a a “fairly significant portion”.

          2. “Shoot to wound” idiots tend to get their understanding of anatomy from Law and Order/NCIS/Criminal Minds episodes and action movies.

            1. I was going to make the point that even survivable limb wounds do not, on average, heal before the end credits roll in real life.

        3. The problem with the Michael Brown case is not that the shooting was criminal, but that Wilson was whitewashed afterwards. And yes, it is possible to whitewash the innocent, just as it’s possible to railroad the guilty.

          1. No evidence supports your assertion that it was criminal. The evidence completely contradicts that assertion. Try again.

    2. “Every shot that an officer fires DOES NOT need to be a kill shot.”

      The fuck? They’re all kill shots. Or the guy shouldn’t be shooting.

      A handgun isn’t a phaser the cop can just set to ‘stun.’ It’s a tool for inflicting deadly force that’s easier to carry around than a rifle, but often won’t stop a charging assailant, especially a knife-wielding one, before said assailant inflicts deadly force on the handgun user. Which is why cops and others often shoot until the magazine is empty.

      I’m sorry her kid was in so much pain that he chose this way to end his suffering, but how is this petition not clearly false or malicious on its face?

      1. I agree Gray; A handgun isn’t a phaser the cop can just set to ‘stun.

        Clearly, this is a woman consumed with grief for her son. I hope she eventually finds a measure of peace and serenity.

    3. If you don’t *need* a kill shot then you don’t need to shoot at all.

    4. Every shot that an officer fires DOES NOT need to be a kill shot.

      Yes. We should hire John Wayne types who can easily and accurately shoot someone in the wrist. Like in the movies. It’s so easy compared to aiming for center mass. Especially if the bad guy is perfectly still during the altercation, which s/he always is.

  7. It’s a fantastic idea that I hope everyone in a red flag state adopts. Petition the hell out of dirty government agents to get their firearms removed.

  8. “used his firearm to recklessly & violently threaten and kill 19 yr old Jeremy Holmes.

    Holmes, she argues, should not be allowed to possess guns because he “poses a significant risk of causing personal injury to self or others.”</blockquote.

    Editors are still on strike?

    1. Including yours 🙂

  9. BTW, those of you condemning the cop in this case (and there are one or two) it is cases like this that make people tune out our message on police militancy. You will never convince people if, like in this case you knee jerk reaction is to blame the cop when the evidence strongly suggests this was both justified and the cop did everything possible to avoid it.

  10. My greater concern in this case was that the sheriff decided to not serve Cpl Morris with the ERPO, in apparent violation of the statute and his sworn duty. He said he’d determined it to be fraudulent. That’s nice, but it’s not his job to decide that. He’s not a trier of fact. And most of us understand that the rest of us likely wouldn’t get that same effort from the good sheriff.

    1. “The Law” is for YOU (and me), not “them.”

      A Police State may be defined as when the police are allowed to do what free citizens are not.

      1. What did this cop do that you and I couldn’t do? I’m pretty sure it is legal in most states to shoot someone who is charging at you with an 11 inch bayonet.

  11. Only the mentally ill would comply with a “Red Flag order.” That is, if you comply with an anti-constitutional decree of a pervert in a black dress that says you must give up your means of self-defense merely because he says so, you are obviously not right in the head.

    If they want to take someone’s guns, they must give that person a jury trial for malum in se charges BEFORE any “gun confiscation order” is issued.

  12. This case showed that “this law can’t be abused for purposes of harassing an officer” only because you had an honest judge.
    We all know there are plenty of judges, who would jump at the chance to discredit law enforcement by taking away an officer’s right to carry his/her weapon, using this “red flag” crap.
    Just look at how many REASON commenters want all law enforcement abolished, whenever an article is written about their actions. Those kinds of people exist in the “legal” profession, too.

    1. You must be sincerely retarded if you believe that….the issue here is “what’s good for the goose is good for the gander”…..it wasn’t an ‘honest judge’s, it was a virtual gang member protecting their own. The cops have operated on the assumption that they can do whatever they want because the court lets them. There really isnt a such thing as a justified shooting by a cop, considering the way they tell it, theyre so big and bad that their raw heroism should be enough to stop a knife wielding assailant.

      1. See my above comment. Condemning this cop makes it harder to reform police actions. By all accounts and the evidence this cop responded exactly how we would want the police to respond. He tried to de-escalate, he tried to retreat rather than confront, he tried to use non-lethal force but was forced to defend his life. There is nothing libertarian or pragmatic about condemning him.

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  17. You will never convince people if, like in this case you knee jerk reaction is to blame the cop when the evidence strongly suggests this was both justified and the cop did everything possible to avoid best edc fixed blade.

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