FORT COLLINS- In the first 15 days Colorado’s red-flag law has been active, residents and law enforcement have used the controversial statute in five cases to request that guns be removed from a wide range of people: an abusive boyfriend, a suicidal man, the father of a grandchild, a suspect who threatened a mass shooting and a police officer.
And two starkly different cases in Larimer County highlight how the law can be used to try to prevent violence and also how the law can be abused by others, lawmakers and law enforcement said. One of the cases, scheduled for a hearing Thursday, will test the law’s protections against fraudulent filings.
The cases also will be a test of how the law will work logistically, said Larimer County Sheriff Justin Smith, who described his jurisdiction as the unexpected ground zero for the implementation of the law. Uncertainty remains about how the statute will be enforced in the myriad situations it could apply to, he said.
“These are all kind of testing the waters,” Smith said.
The red-flag law, which went into effect Jan. 1, allows family members, household members and law enforcement to request that a judge order the removal of person’s guns if they are a threat to themselves or others. The law caused intense debate in the legislature, including prompting some sheriffs to say they wouldn’t uphold the law because they believe it violates a person’s Second Amendment rights.
Susan Holmes last week filed the petition to confiscate Colorado State University police Cpl. Phillip Morris‘ gun, stating in the document that he used it in 2017 to “recklessly and violently threaten and kill” her son, 19-year-old Jeremy Holmes. The Larimer County district attorney found later that year that Morris’ actions were justified under state law, but Holmes said he is dangerous.
Under Colorado’s statute, only law enforcement, family or household members can file a red-flag petition. Holmes is none of those things to Phillips, but checked a box on her form indicating they had a child in common.
Holmes told The Denver Post on Wednesday that she and Phillips do not have a biological child together. She said she was going to argue a legal theory that she should be allowed to check that box at her hearing Thursday, though she declined to explain that theory.
“I’m going to be presenting an argument about checking that box,” she said.
Smith refused to serve Holmes’ petition on Morris because it was unlawful, he said. Holmes’ petition is exactly the abuse of power critics of the law warned about during its creation, he said.
If the judge dismisses Holmes’ petition Thursday, it’s more proof that the safeguards built into the law are working, said House Majority Leader Alec Garnett, one of the prime sponsors of the red-flag bill.
“This case is clearly an abuse of the extreme risk protection order,” he said. “I can’t imagine that the judge is going to go forward granting this because she is clearly not a qualified petitioner.”
The law also gives prosecutors and law enforcement authority to pursue perjury charges on anyone found to lie on the petition form, Garnett said. Smith said his office is investigating Holmes in connection to her filing.
“I know that some people see that as perjury and I’m not seeing it as that all,” Holmes said, citing the unspecified legal theory she planned to present in court Thursday.
The other red-flag case in Larimer County focuses on a man in the county’s jail who has made multiple threats to commit a mass shooting, according to law enforcement.
An investigator with the Larimer County Sheriff’s Office filed a petition Jan. 7 requesting that David Gatton not be allowed to purchase weapons if he were released from jail. Gatton has made multiple comments about wanting to buy guns to execute a mass shooting, according to the petition.