Colo. red flag law used to target officer involved in fatal shooting
Sheriff Justin Smith said he won't serve a petition against a university police officer, calling it a 'fraud' in a post online
In October 2019, PoliceOne columnists Dick Fairburn and Mike Wood wrote about how cops and citizens could become victims of red flag laws if due process and other fundamental liberties are violated. Read that op-ed here.
LARIMER COUNTY, Colo. — Larimer County Sheriff Justin Smith said he will not serve a red flag petition filed by Susan Holmes against a Colorado State University police officer involved in the 2017 fatal shooting of her son.
Smith called Holmes' filing against CSU police Cpl. Philip Morris "a fraud" in a Wednesday morning Facebook post.
Holmes filed the petition, also called an extreme risk protection order, in Larimer County court on Jan. 9 under Colorado's new red flag law. The law has been invoked a handful of times statewide since it took effect Jan. 1, according to multiple news reports, including in Larimer County.
The red flag law allows law enforcement, a family member or household resident to petition to have a person's firearms removed if they are deemed by a judge to be a threat to themselves or others.
Holmes is none of those things to Morris.
In the petition for invoking the red flag law, Holmes falsely claims she is Morris' family or household member — specifically that she has a child in common with Morris. She also claimed Morris recklessly used a firearm in her son's death.
Under state law, knowingly providing false information on court documents such as an extreme risk protection order could result in penalties for perjury.
"We are actively investigating this abuse of the system and we will determine what charges may be substantiated against the petitioner, Ms. Holmes," Smith wrote in his Facebook post.
In his post, Smith cited the "flawed" red flag law that allowed Holmes to file this petition, even though "Holmes has no legal standing, and the petition on its face has zero merit."
In a YouTube video posted Jan. 13, Holmes said she filed the petition because "I've never seen any justice and neither has my son, Jeremy Holmes ... "I think (Morris) should never have a gun again in his life."
Jeremy Holmes, 19, was fatally shot July 1, 2017 after he charged an officer while wielding an 11-inch hunting knife. Officers warned him more than 40 times to drop the knife prior to firing their weapons. According to police body camera footage, Jeremy Holmes said he wanted to die before lunging at officers.
Earlier that day, Susan Holmes had called police out of concern for her son’s mental state after he allegedly threatened a family member.
Both Morris and Fort Collins police officer Erin Mast — who also fired at Jeremy Holmes — were cleared of wrongdoing by the Larimer County District Attorney's Office.
"Officer Morris showed amazing restraint in not utilizing lawful deadly force earlier in the confrontation with Jeremy Holmes," District Attorney Cliff Riedel wrote in his July 2017 opinion letter on the incident, adding that Morris put his own life at greater risk by backing away from the cover of his patrol car as Holmes approached him.
While Smith said Holmes' case is an example of "the tremendous procedural deficiencies" in the law, Smith's post referenced the other red flag case in the county against David Gatton, a man accused of making threats to commit a mass shooting.
"Given that Gatton is not a convicted felon and has no other prohibiting factors — if released, he could have walked into any gun store and passed a background check to purchase a firearm," Smith wrote. "... I believed it would have been a dereliction of duty if we had not taken all available steps to reduce the possibility of Gatton getting his hands on a firearm at this time."
Smith has been outspoken about his concerns on the red flag law, including law enforcement being tasked with executing a search and seizure with no allegations of law breaking and uncertainty over the truly appropriate response if deputies are tasked with confronting someone found to be "extremely dangerous" by the courts.
Larimer County Board of Commissioners also expressed their concerns in a letter to the local legislature, specifically about inflaming volatile situations, not getting people the help they need when in crisis and constitutional issues with the bill, such as the Fourth Amendment right to due process.
While Smith has said he will not serve the petition against Morris, and a hearing on the red flag case is still scheduled for Thursday, according to online court records. There was not a request for a temporary order in this case, Colorado Judicial Department spokesman Jon Sarché told 9News.