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Author Topic: Colorado's red flag law used to target officer involved in fatal shooting  (Read 1668 times)
MechAg94
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« on: January 16, 2020, 09:02:05 PM »

https://www.9news.com/article/news/local/next/colorados-red-flag-law-used-to-target-officer-involved-in-fatal-shooting/73-f52ddaca-893d-493b-983c-db9ecf250ad3?fbclid=IwAR2qZKHAEUnOtAvhqXqWkvVabcLzQmDF7zikT-DZkCZF1WA2PWRjir-d78Q?fbclid=IwAR2qZKHAEUnOtAvhqXqWkvVabcLzQmDF7zikT-DZkCZF1WA2PWRjir-d78Q

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FORT COLLINS, Colo. — A mother whose teenage son was shot and killed by a Colorado State University police officer is seeking to have the officer’s weapons seized under Colorado’s new red flag gun control law. The case is a critical test of the bounds of the controversial law.

Susan Holmes filed an extreme risk protection order (ERPO) petition against Cpl. Philip Morris in Larimer County on Jan. 9. A hearing has been set for Thursday.

It seems the woman's son was shot and killed in a justified shoot by this officer.  She claims the law is written such that they have a child "in common" so it doesn't have to be his child.  I doubt this will fly in court, but I think she is just trying to avoid getting charged with perjury.  
What I don't understand is if his guns are already taken away or not.  It appears that is a no.  I didn't think we would hear about them until they already did that.
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griz
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« Reply #1 on: January 17, 2020, 05:12:31 AM »

From the Sheriff:

Quote
I have not and will not be serving that petition, not because it’s against a police officer, but because it is a fraud. We are actively investigating this abuse of the system and we will determine what charges may be substantiated against the petitioner, Ms. Holmes."

I agree that the petition is an attempt to work the system and shouldn't be served.  But I do wonder if there would be an investigation if a similarly misleading petition was filed against somebody who was not an officer.
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Ben
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« Reply #2 on: January 17, 2020, 05:16:12 AM »

This is an interesting tactic to follow. Not from the point of throwing the individual cop under the bus (I have zero information on the justification for the shooting, good or bad), but from the perspective of the cop's bosses and many upper management LE people likely being in favor of the most invasive red flag laws.

Goose and gander and all that.
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RoadKingLarry
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« Reply #3 on: January 17, 2020, 06:31:19 AM »

From the Sheriff:

I agree that the petition is an attempt to work the system and shouldn't be served.  But I do wonder if there would be an investigation if a similarly misleading petition was filed against somebody who was not an officer.

Do you? Do you really?
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Hawkmoon
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« Reply #4 on: January 17, 2020, 10:38:06 AM »

This is an interesting tactic to follow. Not from the point of throwing the individual cop under the bus (I have zero information on the justification for the shooting, good or bad), but from the perspective of the cop's bosses and many upper management LE people likely being in favor of the most invasive red flag laws.

Goose and gander and all that.

This case is being discussed on The Firing Line, at some length. I can't find it again but a couple of days ago I watched a 9 minute video of the entire incident, from the the perspective of the body cams worn by both of the police officers who fired shots. It was clearly a case of suicide by cop, and the DA properly ruled it as a justified shooting. The grieving mother perjured herself in at least two material statements in her petition for the red flag order. It remains to be seen whether or not she will be prosecuted for perjury.

https://thefiringline.com/forums/showthread.php?t=605309
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brimic
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« Reply #5 on: January 17, 2020, 12:30:03 PM »

Perjured or not, red flag laws are a really bad idea that will get innocent people killed.
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MikeB
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« Reply #6 on: January 17, 2020, 12:44:42 PM »

If the person she was making the claim against wasn’t a cop, likely they would have had their guns confiscated before anyone found out the claims were fraudulent. The Chief and others quoted are looking past the issues with these laws. The only reason in this case they weren’t more or less immediately rushing off to confiscate guns is because they know the cop and so knew the claims such as the cop having a child with the woman were false already.
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MechAg94
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« Reply #7 on: January 17, 2020, 01:32:35 PM »

I heard some comments that her saying the law wasn't specific about "children" was her way to avoid a perjury charge, but wouldn't that depend on the judge?  I figure a judge could also take it to mean she knew what the law said and knew the spirit of the law was to apply to direct children. 
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Hawkmoon
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« Reply #8 on: January 17, 2020, 02:28:51 PM »

If the person she was making the claim against wasn’t a cop, likely they would have had their guns confiscated before anyone found out the claims were fraudulent. The Chief and others quoted are looking past the issues with these laws. The only reason in this case they weren’t more or less immediately rushing off to confiscate guns is because they know the cop and so knew the claims such as the cop having a child with the woman were false already.

Actually, the reason they didn't rush out to confiscate Morris's gun(s) is that the woman found a loophole in the law (which I haven't been able to find after reading the full 26 pages of the law twice) that allowed her to file the petition and skip over the initial, ex parte hearing and fast forward to the full evidentiary hearing at which the officer (the "respondant," in the words of the law) also participates. At that hearing, the judge declined to issue the protective order, so there was never anything to be served on Morris other than the notice of when the hearing would be conducted.

My guess is that she never expected to get the order issued, but that she wanted to drag the cop into court and force him to pay for a defense attorney. The State of Colorado took care of that by assigning two attorneys from the state attorney general's office to represent Corporal Morris.
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MikeB
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« Reply #9 on: January 17, 2020, 04:15:59 PM »

Actually, the reason they didn't rush out to confiscate Morris's gun(s) is that the woman found a loophole in the law (which I haven't been able to find after reading the full 26 pages of the law twice) that allowed her to file the petition and skip over the initial, ex parte hearing and fast forward to the full evidentiary hearing at which the officer (the "respondant," in the words of the law) also participates. At that hearing, the judge declined to issue the protective order, so there was never anything to be served on Morris other than the notice of when the hearing would be conducted.

My guess is that she never expected to get the order issued, but that she wanted to drag the cop into court and force him to pay for a defense attorney. The State of Colorado took care of that by assigning two attorneys from the state attorney general's office to represent Corporal Morris.

And you think all that would have happened if the officer wasn’t known to the court? Maybe I’m wrong. Probably even, but from reading two articles it seems that this happened only because the cop was known and it made it so questions were asked. I sort of doubt it would have worked that way for me.
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Hawkmoon
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« Reply #10 on: January 17, 2020, 06:04:43 PM »

And you think all that would have happened if the officer wasn’t known to the court? Maybe I’m wrong. Probably even, but from reading two articles it seems that this happened only because the cop was known and it made it so questions were asked. I sort of doubt it would have worked that way for me.

Yes, I do. I've read the law -- all 26 pages -- twice. What the law says is that a preliminary hearing "shall" be held the same day the petition (her application) is filed, or the next court date following. At this preliminary hearing, the "respondent" (the person the applicant wants protection from) is NOT notified and is not required (or allowed) to appear. If the judge thinks the complaint is valid, he issues a temporary ERPO (Extreme Risk Protective Order). That order is enough for the law enforcement agency having jurisdiction over the respondant's place of residence to serve the order and to seize any firearms the respondent has.

Then, within two weeks, there "shall" be another hearing, at which the respondent may appear, to determine whether the temporary order will be extended to a full year's duration, or if it will be cancelled as of the date of the hearing.

I've been discussing this with a lawyer, and neither of us can find where in the law it allows what happened to happen. There was no preliminary hearing. Not because the judge knew the cop, but because the woman found a loophole that allowed her -- at HER request -- to bypass the preliminary, emergency hearing and to proceed directly to the full hearing at which the respondent (the cop) also appears. Multiple articles have conjectured that she did this because she knew she had lied on the petition (first about having a child in common with the officer, and second about his being an imminent danger to her) and that her petition would die right there. Her aim seems to have been just to harass the cop as much as she could get away with, so she went for the full hearing so he would have to appear and hire a lawyer.

But ... he didn't appear, and he didn't hire a lawyer. The state attorney general assigned two assistant AGs to defend the cop. They appeared, but the cop didn't.

I concede that the state AG would not have assigned two assistant AGs to defend any John Doe off the street but, aside from that, the case wasn't fast-tracked or anything because the judge knew the cop.
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griz
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« Reply #11 on: January 17, 2020, 06:32:04 PM »

Do you? Do you really?

Yes I do.  What's the issue?
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dogmush
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« Reply #12 on: February 02, 2020, 03:01:58 AM »

Follow up:

https://www.9news.com/article/news/local/next/warrant-issued-for-woman-who-tried-to-use-red-flag-law-to-disarm-officer/73-6f2778a2-0105-43b4-81f2-bb6b457d0fec?fbclid=IwAR2SJOWdgnbE6cHcFQGXy6ZHZoPFmPXo1SKz-PiRADkYe5xcSAM_Jt9IA28

The woman is now wanted for perjury and "attempt to influence a public servant".
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Hawkmoon
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« Reply #13 on: February 02, 2020, 10:51:30 AM »


It was obvious from the git-go that she committed perjury. A number of people (myself included) have been wondering if she would actually be charged. It's about time.

The underlying question remains: Would she have been similarly charged if the respondent hadn't been a cop?
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brimic
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« Reply #14 on: February 03, 2020, 04:46:06 AM »


The underlying question remains: Would she have been similarly charged if the respondent hadn't been a cop?

Also reasonable question:

The underlying question remains: Would she have been similarly charged if she had been a cop?
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Hawkmoon
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« Reply #15 on: February 03, 2020, 05:37:32 AM »

Also reasonable question:

The underlying question remains: Would she have been similarly charged if she had been a cop?

Good question, but I think there are two ways that could play out. I believe the Colorado law provides for police officers to petition for an ERPO as an official act, upon receipt of information from other people. Are you wondering about a police officer requesting an ERPO on that basis, or are you positing a situation in which a police office commits perjury by requesting an ERPO in regard to a personal situation involving him/herself and a non-LEO respondent?
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MechAg94
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« Reply #16 on: February 03, 2020, 06:26:29 AM »

My follow up question would be what sort of evidence is required for the officer to file for a red flag order?  Can he do it simply on a verbal report or does it take more?  I would hope the red flag laws would address that, but who knows.
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Hawkmoon
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« Reply #17 on: February 03, 2020, 12:58:26 PM »

My follow up question would be what sort of evidence is required for the officer to file for a red flag order?  Can he do it simply on a verbal report or does it take more?  I would hope the red flag laws would address that, but who knows.

Here's the law -- all 20 pages of it: https://leg.colorado.gov/sites/default/files/documents/2018A/bills/2018a_1436_ren.pdf

Let's see what we can parse out of that mess of legalese ...

Quote
13-14.5-103.  Temporary extreme risk protection orders.
(1)  A FAMILY  OR  HOUSEHOLD  MEMBER  OF  THE  RESPONDENT  OR  A  LAW ENFORCEMENT  OFFICER  OR  AGENCY  MAY  REQUEST  A  TEMPORARY EXTREME RISK PROTECTION ORDER WITHOUT NOTICE TO THE RESPONDENT BY INCLUDING IN THE PETITION FOR AN EXTREME RISK PROTECTION ORDER AN  AFFIDAVIT, SIGNED  UNDER  OATH  AND  PENALTY  OF  PERJURY, SUPPORTING THE ISSUANCE OF A TEMPORARY EXTREME RISK PROTECTION ORDER THAT SETS FORTH THE FACTS TENDING TO ESTABLISH THE GROUNDS OF  THE  PETITION  OR  THE  REASON  FOR  BELIEVING  THEY  EXIST.

...

13-14.5-104.  Petition for extreme risk protection order.
(1)  A PETITION FOR AN EXTREME RISK PROTECTION ORDER MAY BE FILED BY A FAMILY  OR  HOUSEHOLD  MEMBER  OF  THE  RESPONDENT  OR  A  LAW ENFORCEMENT OFFICER OR AGENCY.

...

(3)  A  PETITION MUST:
(a)  ALLEGE THAT THE RESPONDENT POSES A SIGNIFICANT RISK OF CAUSING PERSONAL INJURY TO SELF OR OTHERS BY HAVING IN HIS OR HER CUSTODY OR CONTROL A FIREARM OR BY PURCHASING, POSSESSING, OR RECEIVING A FIREARM AND MUST BE ACCOMPANIED BY AN AFFIDAVIT, SIGNED UNDER OATH AND PENALTY OF PERJURY, STATING THE SPECIFIC STATEMENTS, ACTIONS, OR FACTS THAT GIVE RISE TO A REASONABLE FEAR OF FUTURE DANGEROUS ACTS BY THE RESPONDENT;
(b)    IDENTIFY  THE  NUMBER,  TYPES,  AND  LOCATIONS  OF  ANY FIREARMS THE PETITIONER BELIEVES TO BE IN THE RESPONDENT'S CURRENT OWNERSHIP, POSSESSION, CUSTODY, OR CONTROL;
(c)  IDENTIFY WHETHER THERE IS A KNOWN EXISTING DOMESTIC ABUSE PROTECTION ORDER GOVERNING THE RESPONDENT; AND
(d)  IDENTIFY WHETHER THERE IS A PENDING LAWSUIT, COMPLAINT, PETITION, OR OTHER ACTION BETWEEN THE PARTIES TO THE PETITION PURSUANT TO
COLORADO LAW OR FEDERAL LAW.

...

(5)    IF THE PETITIONER IS A LAW ENFORCEMENT OFFICER OR AGENCY, THE PETITIONER SHALL MAKE A GOOD FAITH EFFORT TO PROVIDE NOTICE TO A FAMILY OR HOUSEHOLD MEMBER OF THE RESPONDENT AND TO ANY KNOWN THIRD PARTY WHO MAY BE AT RISK OF VIOLENCE. THE NOTICE MUST STATE THAT THE PETITIONER INTENDS TO FILE A PETITION FOR AN EXTREME RISK PROTECTION ORDER OR HAS ALREADY DONE SO AND MUST INCLUDE REFERRALS TO APPROPRIATE  RESOURCES,  INCLUDING MENTAL HEALTH, DOMESTIC VIOLENCE, AND COUNSELING RESOURCES. THE PETITIONER MUST ATTEST IN THE PETITION TO HAVING PROVIDED THE NOTICE OR ATTEST TO THE STEPS THAT WILL BE TAKEN TO PROVIDE THE NOTICE.


It seems a bit nebulous to my non-lawyer mind, but the last paragraph above seems to tell us that the police don't need to have a family member or intimate partner request that the police file the petition, but that the police can do so acting on their own initiative if they have some sort of information (type unspecified in the law) that leads them to believe there is an imminent risk of harm to someone by the person against whom they are requesting the ERPO.
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Mike Irwin
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« Reply #18 on: February 04, 2020, 09:38:31 AM »

Have they run this woman to ground yet?

Have they even been trying?
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griz
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« Reply #19 on: February 04, 2020, 09:48:11 AM »

To me the question isn't if she would be charged if she was an LEO, but if she would be charged if she made up the "threat" and filed for an order against somebody who isn't media worthy.  If, for instance, she said her ex husband sent her threatening emails and filed for the order even though it could be proven (later) that he never sent her any email at all.  Would they pursue any charges against her or just give the guy his guns back and call it a misunderstanding?
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RoadKingLarry
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« Reply #20 on: February 04, 2020, 10:05:12 AM »

To me the question isn't if she would be charged if she was an LEO, but if she would be charged if she made up the "threat" and filed for an order against somebody who isn't media worthy.  If, for instance, she said her ex husband sent her threatening emails and filed for the order even though it could be proven (later) that he never sent her any email at all.  Would they pursue any charges against her or just give the guy his guns back and call it a misunderstanding?

You're not really wondering about that are you?
 

That's the beauty of ERPO laws, due process and accountability are not part of the picture.
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Hawkmoon
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« Reply #21 on: February 04, 2020, 10:12:07 AM »

This case is also being discussed on The Firing Line, and I was dismayed to see one of the members there is actually defending the law and saying that it worked "as it should" and "as was intended."

Sheesh! With friends like that, who needs enemies?
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dogmush
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« Reply #22 on: February 04, 2020, 10:28:11 PM »

Have they run this woman to ground yet?

Have they even been trying?

Apparently they busted in and arrested her during a Livestream interview on YouTube.

I can't go to YouTube at work, but I'm told it's about 22:30 on this video:  https://www.youtube.com/watch?v=j_Dw0NovgjI
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brimic
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« Reply #23 on: February 05, 2020, 04:23:39 AM »

Quote
Are you wondering about a police officer requesting an ERPO on that basis, or are you positing a situation in which a police office commits perjury by requesting an ERPO in regard to a personal situation involving him/herself and a non-LEO respondent?

Yes.
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Hawkmoon
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« Reply #24 on: February 05, 2020, 08:55:19 AM »

Apparently they busted in and arrested her during a Livestream interview on YouTube.

I can't go to YouTube at work, but I'm told it's about 22:30 on this video:  https://www.youtube.com/watch?v=j_Dw0NovgjI

Whoa! She's on crack!

1:15 "My son tried to dialogue with the officer and the officer refused to dialogue." She must have watched a different video of the incident than the one I saw.

I watched most of that video and I read some of the comments. Some are sane, and others seem to regard her as some sort of heroine/martyr for the cause (not sure what cause but "for the cause" nonetheless). There must be something in the water in Colorado Springs.
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