Exclusives, Featured, Legal, Right To Arms, Uncategorized

Sabbeth: Attempt to ‘red flag’ Weld sheriff leaves unanswered questions

In late february, Leo Jose Crespin filed a ‘red flag’ petition for a Temporary Extreme Risk Protection Order (TERPO) against Weld County Sheriff Steve Reams. Crespin was at the time an inmate at the Weld County jail.

On the same day, Judge James F. Hartmann of the 19th Judicial District dismissed Crespin’s TERPO petition. Hartmann ruled, among other things, that: “the Court concludes that Mr. Crespin has failed to provide any facts in his sworn petition that the officers employed at the jail pose a significant risk of causing personal injury to self or others in the near future by simply carrying these items for purposes of maintaining jail security.”

It is worth noting that Crespin alleged in his TERPO petition, under oath and penalty of perjury, that Weld County jail employees shot inmates with shotguns. However, based on extrinsic evidence, the judge determined that these shotguns were not lethal.

I am pleased with the ruling’s outcome but find no solace in the ruling itself.

Judge Hartmann wrote that “Mr. Crespin filed this petition against Weld County Sheriff Steve Reams to obtain a court order to prevent peace officers employed by the Weld County Sheriff’s Office from carrying firearms within the jail.”

This judge’s statement is perplexing.

Section 13-14.5-103 (3) of the statute defines the scope of a TERPO and states that “If a court finds by a preponderance of the evidence… that the Respondent ( in this case Sheriff Reams and seemingly other sheriff’s staff) poses a significant risk of causing personal injury….. etc… by having in his or her custody or control a firearm or by purchasing, possessing or receiving a firearm, the Court shall issue a TERPO.

The scope of the TERPO inflicted on a respondent is unambiguous and vast. Section 13-14.5-103 (6) requires that the content of the TERPO issued by the court must state in part, the following: “The Respondent may not have in his or her custody or control a firearm or purchase, possess, receive, or attempt to purchase or receive a firearm. While the TERPO is in effect, the Respondent must immediately surrender all firearms in its control, custody or possession and also surrender any concealed carry permit issued to the Respondent.”

A TERPO takes away every firearm possessed by or under the control of a respondent or that might be possessed or controlled in the future by a respondent.

Crespin’s petition was in no manner seeking the limited remedy (a remedy unavailable under the statute) “to prevent peace officers employed by the Weld County Sheriff’s Office from carrying firearms within the jail.” Crespin was seeking an order to prohibit not just Sheriff Reams, but his jail staff as well, from owning, possessing, having control or custody of any firearm. Within the scope of a TERPO, Crespin was seeking to have every firearm confiscated from every person in the household of every respondent, as well as preventing every respondent from possessing a firearm in the future.

As a practical matter, Crespin was seeking to effectively terminate the employment of the jail staff.

Additionally, depending on the circumstances, Crespin’s petition could have subjected every respondent to a search for firearms of his or her household, office, automobiles and every other venue. Moreover, depending on the whim of some district attorney or other law enforcement official in Weld County, Crespin could have subjected Sheriff Reams and other sheriff’s staff to viperous no-knock searches, which would include smashing down doors and or breaking through windows to commence a search for firearms allegedly own, possessed and or in the control of every respondent.

That Judge Hartmann interpreted the mandate of Crespin’s petition to be limited to preventing peace officers from carrying firearms in the Weld County jail is, indeed, perplexing.

To have standing, that is, the right to file a TERPO/ERPO petition, a petitioner must allege that he or she is in one of eight categories. Under penalty of perjury, Crespin alleged, by selecting and checking the designated box which had the following pre-printed text: “I regularly reside or have regularly resided with the respondent within the last six months.” Crespin amended the text of the prepared petition form by adding in his own handwriting: “Weld County Jail. SOG Team.” SOG team refers to a group of specialized security people in the jail.

Crespin’s effort to gain standing or legal status to file the TERPO by selecting the allegation that he resides with Reams may be viewed by some as admirably creative but, in the context of, and the plain reading of the statute, the allegation is absolute and ineluctable gibberish and codswallop. The implications of allowing a TERPO petition to go forward based on this false allegation of standing are serious and considerable.

Curiously, Judge Hartmann chose not to address this foundational issue. In his ruling, Judge Hartmann stated: “The Court does not address a threshold question of whether Mr. Crespin, as an inmate of the jail, meets the definition of a household member of the law enforcement officers working at the Weld County Jail….”

Such an omission is unfortunate. Often a judge or judges will rule on an issue based on grounds determined to be as narrow as possible under the theory, evidently, that a limited ruling is most effective and efficacious. Maybe. The argument some advance that the term “household member” is not defined in the statute and, thus, justifies being avoided in a ruling for reasons of efficacy, impresses me as vacuous.

That Crespin was not a household member of Reams under any rational interpretation of the phrase is as close to unarguable as any legal controversy can get.

The implications of avoiding a resolution of this phrase in a TERPO/ERPO petition are considerable. Leaving this phrase unresolved now offers legal support for every inmate in every jail in Colorado to allege standing to file TERPOs against every jail employee, and threatens every one of them with the confiscation of their firearms and the destruction of their employment and private lives, including their safety.

But the implications and consequences of this unresolved issue go further. By avoiding this resolution, it impresses me as logical that now every patient in a hospital; every person residing in an assisted living environment; every person in a homeless shelter; and on and on, can have standing to file TERPOs against staff, owners, administrators and others. The reader can, no doubt, think of additional examples that are, perhaps, even more viperous. Such an interpretation would be legally absurd and morally obscene.

Imprecision leads to abuse and vagueness leads to exploitation. It would have been preferable, in the words of Tony Soprano in a different context, to “nip it in the bud.” Maybe next time.

Michael G. Sabbeth is an attorney in Denver.

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