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Court Address:
201 La Porte Ave DATE FILED: December 8, 2018 12:34 AM
Suite 100 FILING ID: 74593B23B5488
Ft. Collins, CO 80521 CASE NUMBER: 2018CV31146
SUSAN HOLMES,
▲COURT USE ONLY▲
Plaintiff,
v.
Defendant.
Plaintiff’s Attorney:
Case Number:
Julian G.G. Wolfson
LAW OFFICE OF JULIAN G.G. WOLFSON, LLC
1630 Welton Street #727
Denver, CO 80202
Phone Number: 720-507-5133
Email: jwolfsonlaw@gmail.com
Division Courtroom
Atty. Reg. #: 50603
Plaintiff Susan Holmes (hereafter “Ms. Holmes”), by and through her attorney, Julian
G.G. Wolfson of the LAW OFFICE OF JULIAN G.G. WOLFSON, LLC, hereby submits her Complaint
INTRODUCTION
1. This civil action is brought pursuant to the Colorado Criminal Justice Records Act.
2. Plaintiff Susan Holmes seeks access to certain criminal justice records relating to an
incident on July 1, 2017, in which Colorado State University police officers shot and
Colorado State University (hereafter “CSU”) for “criminal justice records” pertaining to
her son’s homicide and which largely concern a request for unredacted video footage of
government, it is the public policy of the State of Colorado that all people are entitled to
full and complete information regarding the affairs of government. Colorado’s Public
Records Act creates a presumption in favor of public access to government records. The
5. The public has a legitimate and compelling interest in knowing how law enforcement
officers behave while doing their jobs. Without such information, the public would be
unable to supervise the individuals and institutions it has entrusted with extraordinary
6. Because CSU’s decision to deny access to the requested records was arbitrary and
capricious, and otherwise inconsistent with the law, Ms. Holmes seeks an Order
compelling Defendant CSU to produce all documents requested by her and/or her
counsel.
7. This Court has jurisdiction of the claims asserted herein under § 24-72-305(7) of the
CCJRA.
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8. Venue is proper in this County under Colorado Rule of Civil Procedure 98(c). Plaintiff’s
Complaint is challenging the official actions of CSU, which is located in Larimer County,
11. Defendant Colorado State University is the “official custodian” of the criminal justice
12. The CCJRA provides that any person who is denied access to inspection of any criminal
justice records has the right to apply to the district court in the district where the records
are found for an order directing the custodian of such records to show cause why the
custodian should not permit the inspection of the records. See C.R.S. § 24-72-305(7).
13. A hearing on such application must be held at the “earliest practical time,” and “[u]nless
the court finds that the denial of inspection was proper, it shall order the custodian to
FACTUAL ALLEGATIONS
On July 1, 2017, Jeremy Holmes was Shot and Killed by CSU Campus Police Officers.
14. On July 1, 2017, Jeremy Holmes—a 19-year-old student at Front Range Community
College—was having a psychotic reaction to the THC in the marijuana he had consumed
earlier that day. See Michael Roberts, The Year-Long Batter of a Mom Seeking Justice for
https://www.westword.com/news/mom-seeks-justice-for-jeremy-holmes-killed-by-csu-
and-fort-collins-police-10757082.
15. Ms. Holmes, Jeremy’s mother, then noticed that Jeremy had left their home with a knife
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in his possession, albeit concealed in a case. Upon leaving their home, Jeremy suggested
to his mother that he may kill his brother Alec Lutzke, who lived approximately two (2)
16. Concerned for the safety of Jeremy and Alec, Ms. Holmes attempted to call Alec and his
17. Unable to contact Alec or Christie, and worried about her son’s mental health, Ms.
Holmes then called Ft. Collins Police Services (“FCPS”) dispatch and asked that they
take a message to Alec’s apartment. Specifically, Ms. Holmes requested that the police
inform Alec that he should keep the door to his apartment closed.
18. Moreover, Ms. Holmes explained to the dispatch officer that Jeremy had left her home
with a knife and that he was mentally ill—a fact that the FCPS dispatch officer noted as
19. After realizing that Alec’s apartment was located on the CSU campus, the FCPS dispatch
20. The CSU dispatch officer then responded by sending Campus Police Officer Katie Aron
to Alec’s apartment. Upon Officer Aron’s arrival, Alec opened his door and proceeded to
have a conversation with Officer Aron, during which time he informed her that Jeremy
21. While Alec and Officer Aron were having this conversation, they heard an individual,
ostensibly Jeremy Holmes, scream loudly—a scream which was followed by the sound of
22. Immediately thereafter, Officer Aron ran towards Prospect Avenue, between
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Center Avenue and Whitcomb Street, where Jeremy had been shot by her partner,
23. When Officer Aron arrived at the scene, Officer Morris still had his gun pointed at
Jeremy, notwithstanding the fact that Jeremy had been shot multiple times and posed no
imminent threat of danger to himself or others. Soon thereafter, Jeremy was pronounced
dead.
24. The results of the autopsy on Jeremy’s body were released approximately ten (10) days
later, and confirmed that Jeremy’s cause of death was a homicide committed by Officer
25. On July 18, 2017, District Attorney Clifford E. Riedel released his office’s findings into
the killing of Jeremy Holmes, which explained his decision not to charge the officers
responsible for Jeremy’s death and noted that the “lethal force” used by the officers “was
26. The findings released by DA Riedel were four (4) and a half pages in length, and
Critical Incident Response Team (“CIRT”) for the Eighth Judicial District. Accordingly,
data—all of which was reviewed by DA Riedel before reaching his findings—have been
Despite Submitting Numerous CORA/CCJRA Requests for the Unredacted Body Camera
Footage, CSU Repeatedly and Unlawfully Denied Ms. Holmes Meaningful Access to Such
Records.
27. In light of the limited information provided by DA Riedel, and desperate to learn more
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details of her son’s death, Ms. Holmes reached out to Colorado State University Police
Department (“CSUPD”) Sergeant Crochet on July 20, 2017, wherein she requested to
view the body camera footage of the events surrounding Jeremy’s death—footage that
28. On the following day, July 21, 2017, Sergeant Crochet informed Ms. Holmes that her
request to view the video evidence had been denied, notwithstanding the fact that DA
Riedel had already concluded his investigation into Jeremy’s death. More importantly,
Sergeant Crochet failed to provide Ms. Holmes with any basis for CSU’s denial of her
request.
29. Still frustrated with CSU’s failure to provide her with body camera footage of her son’s
death, Ms. Holmes submitted a written request to Sergeant Crochet on August 2, 2017,
whereby she requested access to “the videos from Officer Phil Morris, Officer Erin Mast
and all videos from the other female Campus Police Officer, name unknown.”
30. Rather than receiving a response from CSU and/or Sergeant Crochet, Ms. Holmes
FCPS, who indicated that the body camera footage requested by Ms. Holmes would not
be released until after both FCPS and CSUPD’s internal investigations had been
completed.
31. Additionally, Ms. Holmes received emails from Lt. Russell Reed, employee of FCPS,
and Lt. John J. Feyen from the Larimer County Sheriff’s Office, indicating that her
August 2, 2017 request had been denied, and confirming that both FCPS and the CSUPD
32. On November 10, 2017, Ms. Holmes submitted an additional request to Sergeant Crochet
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and CSU demanding access to “any and all records in their entirety, including but not
limited to varied formats such as digital, transcriptions, audio and video records,
including body cam videos from Officer Morris, Mast, and the unknown officer, partner
to Morris and crime scene photographs pertaining to the homicide of [her] son, Jeremy
33. Four days later, Lt. Reed responded to Ms. Holmes request by offering her the
opportunity to review the “body worn camera videos” of the incident, on November 20,
34. After requesting the she be able to view the video at an earlier date, FCPS informed Ms.
Holmes that they would be able to comply with her request and indicated that she could
view the video footage on November 16, 2017 within the confines of their offices, which
35. On November 16, 2017, Ms. Holmes arrived at the FCPS offices where they showed her
the unredacted video footage that she had previously requested. However, employees
and/or agents from FCPS refused to provide Ms. Holmes with a copy of such video and
indicated that this was her only opportunity to view the video.
36. Moreover, Ms. Holmes ability to replay the video was expressly and unnecessarily
37. Soon thereafter, on November 21, 2017, CSU made all and/or some portions of the
redacted body camera footage available to the public. See Graphic: Body camera footage
https://www.coloradoan.com/videos/news/2017/11/21/graphic-body-camera-footage-
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jeremy-holmes-shooting/107913428/. The graphic images provided in the released
38. In light of the limited opportunity Ms. Holmes had to view the unredacted video footage
and her interest in having such footage reviewed and enhanced by an independent third-
party, she submitted a records request to CSU on November 27, 2017, seeking a copy or
clone of the unredacted body camera footage recorded by Officer Morris and Officer
39. On December 1, 2017, Ms. Holmes received an email from Colorado State University
System General Counsel, Jason L. Johnson, informing her that CSUPD would not be
releasing the records sought because the release of such records “is contrary to the public
40. To support the assertion that release of these records would be contrary to public
interests, Mr. Johnson noted that “(1) the un-redacted body cam video has extremely
graphic images of Jeremy Holmes after his death, and no public purpose or interest would
be served by releasing such images; and (2) the privacy interests of the CSUPD officers
depicted in the video would likely be impacted by the release of the un-redacted video,
and by disclosing the un-redacted video it could jeopardize the safety of CSUPD police
officers.” Id.
41. On February 14, 2018, still determined to obtain a copy of the unredacted body camera
footage of her son’s death, Ms. Holmes sent yet another records request to CSU. See
EXHIBIT 3.
42. On March 5, 2018, Mr. Johnson submitted an email to Ms. Holmes, once again denying
her request for the aforementioned records, simply explaining that “the custodian of a
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criminal justice record is authorized to exercise its sound discretion in allowing or not
Counsel’s Newly Expanded Request for Records Was Denied In Its Entirety.
43. Having failed to received copies of the officers’ unredacted body camera footage, Ms.
Holmes decided to retain counsel in a final attempt to obtain these critical records.
44. Accordingly, on September 18, 2018, undersigned counsel emailed CSU’s Designated
1. The complete and unredacted body camera footage taken and/or recorded on July
1, 2017 by Officer Phil Morris that captures, in whole or in part: (A) the shooting
and killing of Jeremy Holmes; (B) the events leading up to the shooting and
killing of Jeremy Holmes; and (C) the events that followed the shooting and
killing of Jeremy Holmes, all of which took place on or around West Prospect
Road in Fort Collins, Colorado; and
2. The complete and unredacted body camera footage taken and/or recorded on July
1, 2017 by Officer Katie Aron that captures, in whole or in part: (A) the shooting
and killing of Jeremy Holmes; (B) the events leading up to the shooting and
killing of Jeremy Holmes; and (C) the events that followed the shooting and
killing of Jeremy Holmes, all which took place on or around West Prospect Road
in Fort Collins, Colorado.
3. Any and all communications, whether verbal or written, made and/or received by
Officer Phil Morris on July 1, 2017, concerning or in any way related to the
killing of Jeremy Holmes.
4. Any and all communications, whether verbal or written, made and/or received by
Officer Katie Aron on July 1, 2017, concerning or in any way related to the
killing of Jeremy Holmes.
5. Any and all communications, whether verbal or written, made and/or received by
any other employees and/or agents of Colorado State University on July 1, 2017,
concerning or in any way related to the killing of Jeremy Holmes.
6. Any and all video footage taken and/or recorded by Officer Phil Morris’ dash
camera, concerning or in any way related to the killing of Jeremy Holmes, on July
1, 2017.
7. Any and all investigations, whether external or internal, that have been conducted
concerning or in any way related to the killing of Jeremy Holmes on July 1, 2017.
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45. On September 24, 2018, Mr. Johnson sent an email to undersigned counsel denying each
of the seven separate types of records sought in his September 18, 2018 letter. See
EXHIBIT 5.
46. Even though undersigned counsel’s request sought a much broader set of records, many
of which had never been previously requested, Mr. Johnson merely reiterated the reasons
47. “As one of Colorado’s open government laws, the CCJRA governs the public’s access to
criminal justice records,” which include: “books, papers, cards, photographs, tapes,
made, maintained, or kept by any criminal justice agency in the state for use in the
City of Aurora, 349 P.3d 297, *P9 (Colo. App. 2014) (citing C.R.S. § 24-72-302(4)).
48. By enacting the CCJRA, the legislature codified its belief the “[t]he maintenance, access
and dissemination, completeness, accuracy and sealing of criminal justice records are
49. The CCJRA governs the release of two separate categories of records. First, the CCJRA
governs records of “official actions,” which include, for example, an arrest, indictment,
disposition, or release from custody. See C.R.S. § 24-72-302(7). Second, the CCJRA
governs the release of “all other criminal justice records.” See C.R.S. §24-72-301(2).
50. When the records sought pertain to recordings of police activity and/or related internal
investigatory documents, such records constitute “other criminal justice records” under
the CCJRA. See Harris v. Denver Post Corp., 123 P.3d 1166, 1173-74 (Colo. 2005)
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(holding that video recordings obtained by police to investigate crimes constitute “other
criminal justice records”); see also Johnson v. Colorado Dep’t of Corrections, 972 P.2d
692, 695 (Colo. App. 1998) (holding that internal investigation records do not involve
“official actions”).
51. Under these circumstances, the decision of whether to grant an individual access to
requested records is “cosigned to the exercise of the custodian’s sound discretion […].”
See Huspeni v. El Paso County Sheriff’s Department, 196 P.3d 892, 897 (Colo. 2008)
(emphasis added); see also Romero v. City of Fountain, 307 P.3d 120, 124 (Colo. App.
2011) (“As the files are criminal justice records, divulging their contents is subject to the
agency’s sound discretion under sections 24-72-304 and -305, C.R.S. 2010”).
52. Notwithstanding the fact that the law provides records custodians with a degree of
established presumption that such records be open for inspection. See Huspeni, 196 P.3d
at 898 (explaining that the CCJRA “favors making the record available for inspection
unless the custodian, in exercising his or her sound discretion, finds ‘disclosure would be
53. In furtherance of this presumption, the judiciary now requires records custodians to take
into account and balance the following factors when assessing whether to grant a records
request under the CCJRA: (1) the privacy interests of individuals who may be impacted
without compromising them; (4) the public purpose to be served in allowing inspection;
and (5) any other pertinent consideration relevant to the circumstances of the particular
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request. See Harris, 123 P.3d at 1175 (“Although the legislature did not specifically
establish a balancing test in the CCJRA discretionary provisions for considering release
of a criminal justice record for public inspection or not, such a test inheres in the statutory
grant of discretion itself and in the careful manner by which the General Assembly has
structured the CCJRA’s disclosure and non-disclosure provisions”); see also Huspeni,
54. Unless the factors embedded within this balancing test outweigh the public interest
associated with accessing the CCJRA record, such record “must be open for inspection.”
55. Accordingly, whereas here, an individual’s request for CCJRA records is denied, he or
she may “apply to the district court of the district wherein the record is found for an order
directing the custodian of such record to show cause why said custodian should not
56. When such an application has been made, the court is required to determine whether the
records custodian abused its discretion in denying inspection of such records. See
Huspeni v. El Paso County Sheriff’s Department, 196 P.3d 892, 899-904 (Colo. 2008)
circumstances to order the release or redacted release of the record, is to prevent the
custodian from utilizing surreptitious reasons for denying the inspection, which though
57. In order to determine whether the records custodian has abused his or her discretion, “a
reviewing court looks to see if the [custodian] has misconstrued or misapplied applicable
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law, or whether the decision under review is not reasonably supported by competent
evidence in the record.” Id. (“Lack of competent evidence occurs when the administrative
58. Thus, the “[p]roper application of an abuse of discretion standard primarily entails the
court holding the custodian to its balancing role, which includes adequately explaining
the reasons for the custodian’s inspection determination.” Id. at 900 (explaining that “the
59. If the court determines that the custodian’s decision to deny access to criminal justice
records was improper, and also finds that such denial was arbitrary and capricious, the
custodian must pay the requesting party’s reasonable costs and attorney fees under the
indicates that Defendant believes its decision to deny inspection and/or copies of the
requested records was valid in light of C.R.S. § 24-72-305(5), which provides that a
custodian “may” deny access of inspection when “disclosure would be contrary to public
interest.”
61. In attempting to explain why the disclosure of such records would be contrary to the
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While Plaintiff concedes that she was given a brief opportunity to view the unredacted body camera
footage, Defendant has not offered any explanation as to why Plaintiff was only allowed to view the
unredacted footage on one particular day, under numerous conditions, and not offered any copies of such
records. See C.R.S. § 24-72-304(1) (“[A]ll criminal justice records, at the discretion of the official
custodian, may be open for inspection at reasonable times, except as provided by law, and the official
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62. First, Defendant claims that the “un-redacted body cam video has extremely graphic
images of Jeremy Holmes after his death, and no public purpose or interest would be
63. This explanation, however, is not tenable, as it is clearly contradicted by the available
facts and conveniently ignores the strong public policy rationales that weigh in favor of
releasing such important records. See, e.g. City of Colo. Springs v. ACLU, 06-CV-2053,
slip op. at 4 (El Paso County Dist. Ct. Feb. 5, 2007) (holding that “public has an interest
in knowing how its public law enforcement officers behave in their jobs”).
64. For example, Defendant’s assertion that it would not be in the public interest to release
the unredacted body camera footage is belied by the fact that Defendant has already
released extremely graphic images of Jeremy’s death. In light of the fact that the release
of these extremely graphic images has not yet caused any detriment to the public,
Defendant’s suggestion that the release of additional graphic images would be contrary to
65. Second, Defendant claims that “the privacy interests of the CSUPD officers depicted in
the video would likely be impacted by the release of the un-redacted video, and by
disclosing the un-redacted video it could jeopardize the safety of CSUPD police
officers.” Id.
66. However, as numerous courts have articulated, police officers have no legitimate privacy
expectation with respect to “documents related simply to the officers’ work as a police
custodian of any such records may make such rules and regulations with reference to inspection of such
records are reasonably necessary for the protection of such records and the prevention of unnecessary
interference with the regular discharge of the duties of the custodian or his office”) (emphasis added).
When also considering that one of the legislature’s primary purposes in enacting the CCJRA was to
increase “access” to and “dissemination” of criminal justice records, it is evident that any individual
permitted to inspect a such record be given meaningful access.
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officer.” Denver Policemen’s Protective Ass’n v. Lichtenstein, 660 F.2d 432, 435 (10th
Cir. 1981); see also Stidham v. Peace Officer Stds. & Training, 265 F.3d 1144, 1155
(10th Cir. 2001); ACLU v. Whitman, 159 P.3d 707, 711 (Colo. App. 2006) (explaining
that “materials pertaining to a police officer’s discharge of his or her official duties would
generally appear less likely to come “within the zone of protection of the right to
confidentiality”); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-87 (3d Cir. 1994)
(“[P]rivacy interests are diminished when the party seeking protection is a public person
Seattle, 326 P.3d 688 (Wash. 2014) (holding that the privacy exemption to the state’s
open records laws “only applies where the videos sought are part of pending litigation,
and the exemption dies when the litigation ends”); City of Baton Rouge/Parish of E.
Baton Rouge v. Capital City Press, L.L.C., 2007 1088 (La. App. 1 Cir. Oct. 10, 2008)
(noting that the “public should be ensured that “both the activity of public employees
suspected of wrongdoing and the conduct of those public employees who investigate the
suspects is open to public scrutiny” and explaining that “[i]t would be an incongruous
result to shield from the light of public scrutiny the workings and determinations of a
67. More importantly, the names of the officers involved in the killing of Jeremy Holmes
have already been revealed to the public. In fact, CSU Police Chief Scott Harris publicly
applauded and highlighted the efforts of Officer Morris shortly after this tragic incident.
See Alicia Stice, District Attorney: Officer showed ‘amazing restraint’ in July 1 shooting,
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https://www.coloradoan.com/story/news/2017/07/19/district-attorney-officer-showed-
amazing-restraint-july-shooting/492044001/.
68. Finally, there is no indication that Officers Morris or Aron maintained any subjective
reasonable expectation of privacy in light of the fact that: (A) CSUPD publically provides
the email addresses of all officers, including Officer Morris and Aron, on its website; and
(B) images of some of the officers involved in this incident, including Officer Aron, are
easily obtainable by the public online. Cf. Katz v. United States, 389 U.S. 347, 361 (1967)
(Harlan, J., concurring) (noting that a reasonable expectation of privacy exists when a
69. While Defendant appears to have analyzed some of the pertinent factors required by
Harris, it is clear that Defendant did not balance and/or weigh all such factors when
considering whether to release the unredacted body camera footage. Even worse, with
respect to the records that were first requested in counsel’s September 18, 2018 letter,
including but not limited to documents associated with CSUPD’s internal investigation
into the incident, Defendant failed to consider any of the pertinent factors.
70. In light of the fact that Defendant failed to properly balance the pertinent factors
articulated in Harris, and that Defendant’s decision to deny some and/or all of these
rationale, it becomes evident that Defendant’s decision to deny Plaintiff’s record requests
CLAIM ONE
C.R.S. § 24-72-305
Order to Show Cause and Award of Reasonable Attorneys’ Fees and Costs
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71. Plaintiff hereby incorporates by reference all of the preceding paragraphs of this
72. The records requested by Ms. Holmes and her counsel are “criminal justice records,” as
73. Defendant has refused to provide reasonable access to the criminal justice records
74. Defendant’s denial of reasonable access to the records sought by Plaintiff violates the
CCJRA.
75. Under the CCJRA, “all criminal justice records, at the discretion of the official custodian,
may be open for inspection by any person at reasonable times […].” C.R.S. 24-72-304(1).
76. Plaintiff has a significant personal interest in inspecting the requested CCJRA records.
77. Defendant’s withholding of the requested records has substantially interfered with
78. Legal requirements imposed by state and federal law prohibit Plaintiff’s counsel from
initiating a lawsuit, on behalf of her deceased son, without certifying that the factual
allegations contained therein are supported by adequate evidence. See Fed. R. Civ. P. 11;
79. Until Plaintiff is able to review and analyze the requested records in more detail, she and
her counsel will be unable to sufficiently determine whether a lawsuit against the police
80. Moreover, Defendant has abused its discretion in denying Plaintiff’s request for records
by failing to properly balance and/or consider the pertinent factors first announced by the
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and/or adequate evidence to support its contention that the requested documents should
not be produced.
that this Court enter judgement in her favor and against Defendant, and award her all relief
A. The Court enter an Order directing Defendant to show cause why it should not
provide Plaintiff with a meaningful opportunity to review the requested records and a
B. The Court conduct a hearing pursuant to such Order “at the earliest practical time,”
whereby the Court would require Defendant to adequately show cause for its denial
C. The Court enter an Order directing Defendant to pay Plaintiff’s court costs and
D. The Court award any other and further relief that it deems just and proper.
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