Red Flag Law Case thrown out (Colorado)-abuse of the law?

[USNRet93]

Other than someone in the clerk's office calling and saying "there's a person here filing an RFL petition against you", there wouldn't be a mechanism for the respondent to know that a petition is being started. The order issuing from the court at the first hearing should have to be served on the respondent in order to be effective.

Is that what the sheriff wouldn't serve here?

I get that but the sheriff wouldn't act on the order until the initial judge issued it, correct? I see in other states, the RF is filed, the LEO seizes the guns THEN it goes to a judge. In Colorado, to a judge first, correct? The judge saw the claim was bogus, threw it out..so the LEO had no order to execute..

Had the law "worked correctly," an order would have been issued and Morris' weapons seized and held for two weeks until a hearing, at which time the order would undoubtedly have been rescinded

My point, isn't that initial order in CO issued by a Judge?..NOT by a LEO?Guns seized if appropriate then BOTH parties go before a judge in 2 weeks
to plead the case?

 

[Aguila Blanca]

I'm still trying to find the article that mentioned the mother's opting not to have an initial, ex parte hearing. Of course, it was only one article, and there an extremely remote possibility (cough, cough) that the reporter might not have gotten the facts straight. I did find this article, though:

https://www.thedenverchannel.com/ne...-filed-against-csu-officer-who-killed-her-son

As do all the other articles I've found, this one reports that the judge declined to issue the order -- which means this was the initial hearing, because if this were the follow-up hearing the order would already have been issued and the hearing would have not been over issuing it, but over whether or not to leave it in place for a year. Yet this article confirms that Corporal Morris was represented by the state attorney general's office, so this was not an ex parte hearing -- and it was held a week after the petition was filed, not the same day or the next court day.

It's confusing, and I don't think it's entirely due to senility on my part.

In court Thursday, Holmes refused to offer testimony to Judge Stephen Howard, saying she did not recognize him as a judge and that she didn’t believe she would have a fair and impartial hearing. She had asked him to be removed from the case because he was involved in an open records case of her's, but he denied her request.

She told Denver7 in an interview that she believed the law should be amended so "any Colorado citizen should be able to file an ERPO against a violent and threatening law enforcement officer." She also said in the interview that she did not feel like she committed perjury despite her claim about having a child with Morris.

But the judge denied her request for an ERPO for lack of evidence because Holmes refused to testify. She said she thought it “appalling” that the attorney general’s office, which represented Morris, was doing so and allowing him to keep his job.

Aside from the false claim that she had a child in common with the officer, the mother's claim was that the officer was reckless and threatening, and that he used excessive force in shooting her son.


Aha! Here's another article that mentions bypassing the initial, ex parte hearing:

https://www.rallyforourrights.com/r...inst-police-officer-who-shot-petitioners-son/

Susan Holmes discovered a loophole in Colorado’s Red Flag ERPO law that allowed her to bypass the initial Temporary ERPO hearing. The way it’s supposed to work is a Temp hearing would be scheduled within 24 hours of her filing, where the judge would determine based on a preponderance of evidence if the facts on the petition were true or not, and he would either approve or deny the Temp ERPO order. Had Susan Holmes gone through this Temp hearing the case would have more than likely been denied based on her claim they had a child in common (but who knows). Turns out it doesn’t matter. This law is so poorly written, if you think you will be denied at the Temp hearing because, say…you lied, you can just bypass it and go right to a full hearing forcing the person being ERPO’d to fight back or risk losing their firearm rights. It doesn’t matter how frivolous any of it is.

 

[Aguila Blanca]

I get that but the sheriff wouldn't act on the order until the initial judge issued it, correct? I see in other states, the RF is filed, the LEO seizes the guns THEN it goes to a judge.

No, not correct as I understand it.

My state also recently enacted a red flag law. It works similarly to the Colorado law, and I think the other states also largely follow suit. Filing the petition is NOT an order, and the police do not serve anything or confiscate firearms just because a petition has been filed. I posted a link to the actual text of the Colorado law, as enacted by the legislature. What it calls for is that, upon filing of the petition, there is an initial, ex parte hearing for the issuance of a temporary extreme risk protective order (ERPO). This initial hearing is to be held (under the Colorado law) the day the petition is filed or on the next court day thereafter:

(4) THE COURT SHALL HOLD A TEMPORARY EXTREME RISK
PROTECTION ORDER HEARING IN PERSON OR BY TELEPHONE ON THE DAY THE
PETITION IS FILED OR ON THE COURT DAY IMMEDIATELY FOLLOWING THE DAY
THE PETITION IS FILED.

After that, a full hearing must be held within fourteen days to decide whether or not the order will become permanent (for a year). It's normally only at this second hearing that the defendant gets to argue in his/her defense.

(5)
(a) IN ACCORDANCE WITH SECTION 13-14.5-105 (1), THE COURT
SHALL SCHEDULE A HEARING WITHIN FOURTEEN DAYS AFTER THE ISSUANCE
OF A TEMPORARY EXTREME RISK PROTECTION ORDER TO DETERMINE IF A
THREE-HUNDRED-SIXTY-FOUR-DAY EXTREME RISK PROTECTION ORDER
SHOULD BE ISSUED PURSUANT TO THIS ARTICLE 14.5. NOTICE OF THAT
HEARING DATE MUST BE INCLUDED WITH THE TEMPORARY EXTREME RISK
PROTECTION ORDER THAT IS SERVED ON THE RESPONDENT. THE COURT
SHALL PROVIDE NOTICE OF THE HEARING DATE TO THE PETITIONER.

(b) ANY TEMPORARY EXTREME RISK PROTECTION ORDER ISSUED
EXPIRES ON THE DATE AND TIME OF THE HEARING ON THE EXTREME RISK
PROTECTION ORDER PETITION OR THE WITHDRAWAL OF THE PETITION.

Until the preliminary hearing has been held, the petition is just a petition (application), it is not an order and doesn't represent anything that can be served or enforced against the defendant.

 

[zukiphile]

I see in other states, the RF is filed, the LEO seizes the guns THEN it goes to a judge.

That is not the process. A petitioner lacks authority to direct a LEO to act.

1. A petition is filed.
2. It is heard by a judge.
3. The judge denies or grants the petition and issues an order.
4. If the order grants the petition, it is served on the respondent.

Of course, it was only one article, and there an extremely remote possibility (cough, cough) that the reporter might not have gotten the facts straight.

Indeed.

As do all the other articles I've found, this one reports that the judge declined to issue the order -- which means this was the initial hearing, because if this were the follow-up hearing the order would already have been issued and the hearing would have not been over issuing it, but over whether or not to leave it in place for a year.

I see your reasoning. Both the initial ex parte hearing and the subsequent hearing with notice and an opportunity for the respondent to rebut allegations and present evidence should generate their own separate orders, even if the order from the second hearing is merely to retain the restrictions set forth in the order from the initial hearing.

Otherwise, the two week hearing would show as having been held, but with no result on the docket.

I'm not telling you that's how it worked here, but how these things should work according to ordinary court docketing procedures.

 

[jfruser]

Sure, the LEO was notified and had representation when a regular citizen would get neither. Are any of y'all naïve enough to think it would happen otherwise?

Some of y'all think we still live under rule of law. You need to disabuse yourself of such foolish notions.

Any regular citizen--especially anyone with view that dissent from the ruling class--would have the RF order applied early and hard and maybe only THEN would some member of the kritarchy notice, "Huh, there really is no child in common. Helluva thing. The deceased target of the red flag can have all his guns back. Make sure you rape his wife and kill his other dog on the way out."

 

[zukiphile]

AB, I just caught this.

Aha! Here's another article that mentions bypassing the initial, ex parte hearing:

https://www.rallyforourrights.com/re...titioners-son/

Susan Holmes discovered a loophole in Colorado’s Red Flag ERPO law that allowed her to bypass the initial Temporary ERPO hearing.

I confess that when I ran through the law previously, I never saw this. The 24 hour requirement in the language you quoted earlier above reads as a mandate to me.

If there really is such a loophole, it doesn't make this law better. It would mean that a petitioner alleges an imminent and serious danger, but is okie dokie with a later hearing.

 

[Aguila Blanca]

Sure, the LEO was notified and had representation when a regular citizen would get neither. Are any of y'all naïve enough to think it would happen otherwise?

I believe you are incorrect. Multiple articles (including one of those I linked to) have reported that in this case the petitioner (the grieving mother) elected to bypass the initial, same-day, ex parte hearing and to proceed directly to the full hearing at which the respondant/defendant was allowed to be represented.

See post #22:

Susan Holmes discovered a loophole in Colorado’s Red Flag ERPO law that allowed her to bypass the initial Temporary ERPO hearing. The way it’s supposed to work is a Temp hearing would be scheduled within 24 hours of her filing, where the judge would determine based on a preponderance of evidence if the facts on the petition were true or not, and he would either approve or deny the Temp ERPO order.

 

[Aguila Blanca]

I confess that when I ran through the law previously, I never saw this. The 24 hour requirement in the language you quoted earlier above reads as a mandate to me.

It reads as mandatory to me, too. It uses the word "shall" multiple times. The only reference to "may" is to allow the judge discretion as to whether or not to allow the initial hearing to be conducted telephonically.

I haven't found anything that explains what "loophole" she found, but that is apparently what happened. She skipped the initial hearing and went directly to the hearing at which Morris (or his attorney) was a participant. I'm reviewing the text of the law now, and I can't find anything that tells me this is possible -- but the facts are that it happened.

 

[danco]

But trying to use the law for "personal retribution"..not sure that's a crime. Waste of everybody's time for sure but absent perjury, not sure that's against the law.

It is under my State's (Nevada) new Red Flag law (AB291):

Sec.21. 1. A person shall not file a verified application for an ex parte or extended order:

(a) Which he or she knows or has reason to know is false or misleading; or

(b) With the intent to harass the adverse party.

2. A person who violates the provisions of subsection 1 is guilty of a misdemeanor.

Of course, "misdemeanor" is basically a traffic ticket...

 

[44 AMP]

Of course, "misdemeanor" is basically a traffic ticket...

yeah, a "traffic ticket" that can make you a prohibited person, essentially for life.

Sure, some misdemeanor are no worse than traffic tickets, but other, especially thanks to Sen Lautenberg make you a prohibited person, removing you legal right to own firearms. (domestic violence misdemeanor does that its Federal law and has been for many years now)

 

[Aguila Blanca]

yeah, a "traffic ticket" that can make you a prohibited person, essentially for life.

Sure, some misdemeanor are no worse than traffic tickets, but other, especially thanks to Sen Lautenberg make you a prohibited person, removing you legal right to own firearms. (domestic violence misdemeanor does that its Federal law and has been for many years now)

Yes, a conviction of misdemeanor domestic violence is a 2A disqualifier, but I don't think a conviction of misdemeanor making a false statement would be, even if the case is a domestic violence ERPO case.

 

[USNRet93]

Multiple articles (including one of those I linked to) have reported that in this case the petitioner (the grieving mother) elected to bypass the initial, same-day, ex parte hearing and to proceed directly to the full hearing at which the respondant/defendant was allowed to be represented.

Wonder if that was because she knew she was lying about the 'common child', and hoped the judge would somehow either not notice that or not care(?)..and maybe get a favorable outcome?

Makes no sense tho as the 'defendant'(LEO) would have been present and all this would have come out..

Without taking any stand, and no comment on the RFL in general, I'm glad the truth came out, and the LEO was cleared..hope the woman gets charged with perjury...

 

[Aguila Blanca]

Conjecture on my part:

I think her sole intent was to make life difficult for Corporal Morris. She wanted to cost him time and money. Since he would not be a party to a preliminary hearing under the red flag law, and she's probably smart enough to have known that her petition would not survive the preliminary hearing, she elected to skip it and move directly to the hearing where Morris would have to appear and be represented.

As events transpired, Morris didn't appear personally and his attorneys were provided by the State of Colorado, so it didn't cost him anything but some publicity (which was overwhelmingly positive towards him) and maybe a couple of night's sleep.

 

[mehavey]

If that can borne out in the Discovery phase of a lawsuit (where mail, email, conversations, etc, etc, come to light in evidence),
I'll wager she is liable both criminally and civilly.

Could get very interesting in setting "good faith" threshhold on this process.

 

[Aguila Blanca]

If that can borne out in the Discovery phase of a lawsuit (where mail, email, conversations, etc, etc, come to light in evidence),
I'll wager she is liable both criminally and civilly.

Could get very interesting in setting "good faith" threshhold on this process.

Never mind "good faith." The Colorado law stipulates that a petition for an ERPO is made by affidavit (which is a sworn statement) under penalty of perjury. The woman perjured herself at least twice, once by saying that she has (or had) a child in common with the LEO and again in attesting that he was an immediate threat to her.

In a video I watched on her being interviewed after the petition was denied, a reporter asked her about the perjury issue. She wasn't about to admit that she had perjured herself, so she maintained the position that she didn't think she had committed perjury but she wasn't going to say why because she wanted to preserve her strategy for when she appeals the dismissal of her petition.

Interview: https://kdvr.com/2020/01/16/womans-...u-officer-who-shot-and-killed-her-son-denied/

The video indicates that the state AG's office did, in fact, tell the judge that Holmes' petition was not made in good faith.

 

[44 AMP]

Yes, a conviction of misdemeanor domestic violence is a 2A disqualifier, but I don't think a conviction of misdemeanor making a false statement would be, even if the case is a domestic violence ERPO case.

My intent was to show that a misdemeanor is not always "basically a traffic ticket" and not all are the same.

Apologies if that was misunderstood.

 

[Aguila Blanca]

Actually a misdemeanor is never basically a traffic ticket. A traffic ticket is a civil infraction, not a criminal offense.

The reason I picked on you was the context. The misdemeanor being discussed was the misdemeanor of filing a false petition for an ERPO, to which you responded "yeah, a 'traffic ticket' that can make you a prohibited person, essentially for life." That's incorrect (I think.) Lying on a court filing is not covered by the Lautenberg amendment.

Don't mean to pick on you, but if'n we're going to talk about laws and consequences I think we need to be as precise as possible so things don't get taken out of context down the road.

 

[44 AMP]

I should have been more specific. I didn't mean THAT misdemeanor made you a prohibited person, but that A (certain) misdemeanor could, and that all misdemeanors weren't "basically a traffic ticket".

And you are right, a traffic ticket isn't even a misdemeanor, until you get too many and don't pay them... (yes, I know that will be a separate charge..)

It simply didn't occur to me that it could be understood they way you did, but now, knowing that, I can, hopefully do better.

and I don't feel picked on, either. Just woefully inadequate and misunderstood! (sarcasm intentional)

SO, what's to become of this woman and her apparent quest for vengeance??

Charges for perjury, I would hope, at the least.

I can see, if she steadfastly maintains that she was not intentionally lying and really, really, rilly does believe that her having a son who was shot and killed by someone gives them a "child in common", it could be used as a defense.

I don't think it would work, but they might try to use it. Don't think many people would accept her definition though.

If her idea holds, then I guess I have a "child in common" with my kids schoolbus driver, and everyone else they meet in their lives.

I'd like to say she's a wackjob, but until the court does, I'll hold off on that. Until then, I suppose she has the legal right to try and game the system to get what she wants, just like everyone else.
From here, it looks like she tried that, and failed.
am off to watch the playoffs...do your kids watch the playoffs? Maybe we have a "child in common" then???

 

[JERRYS.]

a lot of back and forth here....

has there been an official court order based on this woman's petition?

if so, has the LEO lost his right to own/carry a gun?

 

[Aguila Blanca]

has there been an official court order based on this woman's petition?

if so, has the LEO lost his right to own/carry a gun?

No and no.