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.