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.

Holmes filed the petition, also called an extreme risk protection order, in Larimer County court on Jan. 9 under Colorado’s new red flag law. The law has been invoked a handful of times statewide since it took effect Jan. 1, according to multiple news reports, including in Larimer County.

The red flag law allows law enforcement, a family member or household resident to petition to have a person’s firearms removed if they are deemed by a judge to be a threat to themselves or others.

Holmes is none of those things to Morris.

Susan Holmes (credit: CBS)

In the petition for invoking the red flag law, Holmes falsely claims she is Morris’ family or household member — specifically that she has a child in common with Morris. She also claimed Morris recklessly used a firearm in her son’s death.

On her petition, Holmes also checked the box next to the question of whether this person has posed “a credible threat of or the unlawful reckless use of a firearm.” In her explanation, she wrote: “Phil Morris used his firearm to recklessly & violently threaten and kill 19 year old Jeremy Holmes.”

Jeremy Holmes died July 1, 2017, in a confrontation that investigators described as a “suicide by cop.”

Police said they encountered Jeremy Holmes that night in the 500 block of West Prospect Road in Fort Collins and quickly learned he was armed.

Morris is heard on body camera footage of the incident asking Jeremy Holmes to drop a knife he’s holding 36 times within two minutes. Jeremy Holmes is heard asking police to shoot him.

When Morris began to holster his weapon so that he could stun Jeremy Holmes, Jeremy Holmes charged at him.

Morris, along with Fort Collins Officer Erin Mast, fired their guns.

Under state law, knowingly providing false information on court documents such as an extreme risk protection order could result in penalties for perjury.

“We are actively investigating this abuse of the system and we will determine what charges may be substantiated against the petitioner, Ms. Holmes,” Smith wrote in his Facebook post.

On Colorado’s Red Flag Law: It turns out that a Larimer County has become ground zero for Colorado’s Extreme Risk… Posted by Justin Smith on Wednesday, January 15, 2020

Lesley Hollywood, director of the gun rights advocacy organization Rally For Our Rights, said she feared this is how the law would play out, forcing people into courtrooms instead of focusing on other solutions, like increased access to mental health help, to protect people from gun violence.

“I think, unfortunately, it’s a reality of this new law that we have here,” she said. “I think a lot of gun owners are looking at it and are shocked.”

“I think it’s a law that’s becoming a band-aid to fix failures happening already,” she added.

However, Douglas County Sheriff Tony Spurlock, who helped pass this law, doesn’t see failure.

“In my opinion, the safeguards built into that law were working,” he said.

Spurlock said the courts and law enforcement are the keepers of the standards for what warrants an ERPO.

“The court could intervene, the sheriff could intervene and make sure that the process is working the way it’s supposed to,” he explained.

“As I’ve said many times, local law enforcement is a local control statue. It allows jurisdictions to approach it from a variety of different angles,” said Spurlock.

In a YouTube video posted Jan. 13, Holmes said she filed the petition because “I’ve never seen any justice and neither has my son, Jeremy Holmes … “I think (Morris) should never have a gun again in his life.”

Jeremy Holmes was fatally shot after he charged an officer while wielding an 11-inch hunting knife. According to police body camera footage, Jeremy Holmes said he wanted to die before lunging at officers.

Earlier that day, Susan Holmes had called police out of concern for her son’s mental state after he allegedly threatened a family member.

Both Morris and Fort Collins police officer Erin Mast — who also fired at Jeremy Holmes — were cleared of wrongdoing by the Larimer County District Attorney’s Office.

“Officer Morris showed amazing restraint in not utilizing lawful deadly force earlier in the confrontation with Jeremy Holmes,” District Attorney Cliff Riedel wrote in his July 2017 opinion letter on the incident, adding that Morris put his own life at greater risk by backing away from the cover of his patrol car as Holmes approached him.

While Smith said Holmes’ case is an example of “the tremendous procedural deficiencies” in the law, Smith’s post referenced the other red flag case in the county against David Gatton, a man accused of making threats to commit a mass shooting.

“Given that Gatton is not a convicted felon and has no other prohibiting factors — if released, he could have walked into any gun store and passed a background check to purchase a firearm,” Smith wrote. “… I believed it would have been a dereliction of duty if we had not taken all available steps to reduce the possibility of Gatton getting his hands on a firearm at this time.”

Smith has been outspoken about his concerns on the red flag law, including law enforcement being tasked with executing a search and seizure with no allegations of law breaking and uncertainty over the truly appropriate response if deputies are tasked with confronting someone found to be “extremely dangerous” by the courts.

The judge denied the request against a Colorado State University police officer, citing her inability to prove a domestic or familial relationship with the officer. Susan Holmes alleged Cpl. Phillip Morris was “violent and should have his gun taken away” under Colorado’s ERPO law, known as the red flag law.

In order for a proceeding to take place, a petitioner must prove the respondent meets at least one of seven criteria showing their relationship as family members, household members or more. Holmes, the petitioner, claimed Morris shared a child with her.

However, when asked to present evidence of her accusations by Judge Stephen Howard, Holmes refused. Holmes cited Howard’s refusal to recuse himself from the proceeding, citing her belief that he was biased from a previous case involving herself.

Howard offered Holmes several opportunities to present factual evidence of her claim that Morris shared a child with her. However, Holmes repeatedly denied her opportunities, claiming she didn’t want to present her evidence to someone who was impartial.

“This judge should not be overseeing this case,” Holmes told CBS4’s Dillon Thomas. “I did not recognize his right to reside in this case.”

Morris was not in attendance, however his legal counsel presented an affidavit claiming he was not the father of any of Holmes’ children.

“I do not have a child with Susan Holmes,” Morris’ affidavit claimed.

(credit: CBS)

Howard ruled based off of the evidence presented by the respondent’s lawyers, and the lack of evidence presented by Holmes. Howard denied the ERPO request, citing lack of evidence to meet the criteria outlined in the law to proceed with the hearings.

Holmes was warned by the judge that anything she said in court could be used against her in any future proceeding. Some suggested she could face perjury charges for lying about the officer’s relationship to her.

“I didn’t falsely make a claim. I haven’t presented my arguments or evidence,” Holmes said.

Holmes told CBS4’s Dillon Thomas that Morris was violent, and has a history of violence.

Susan Holmes (credit: CBS)

“You laughed when (the respondent’s attorney) said the officer is an outstanding member of the community and an outstanding officer. Can you tell us why you have that expression?” Thomas asked.

“Because, he is violent. He has a history of violence. He killed my son,” Holmes responded.

“Do you still believe you have a child with the officer?” Thomas said.

“I cannot address those kind of questions,” Holmes said.

Justin Smith (credit: CBS)

She suggested she would appeal the findings of the court, in hope or revisiting the case with a new judge.

Holmes denied that her ERPO filing was an abuse of the new law, and said the government should create an amendment that includes police officers into the realm of people able to have their guns confiscated upon safety concerns from the public.

“The amendment to this law should be that any Colorado citizen should be able to file an ERPO against a violent and threatening law-enforcement officer, I absolutely believe that,” Holmes said.

Larimer County Sheriff Justin Smith said the judge’s ruling was appropriate and showed the law had rules to make sure bogus claims could not end with the confiscation of an innocent person’s firearm.

“I’m very pleased with the ruling, the judge obviously ruled correctly in this,” Smith said. “I just think it brings forward the concerns that were expressed by many citizens around this state, with the ability of the law like this to be abused. And that was demonstrated in the court room today.”

Smith wouldn’t publicly comment on if Holmes’ requests for an amendment to the law should, or should not, be created.

“When a statute like this is abused, as it was today, the citizens need to know we are going to stand up and we are going to stand up for the rights of citizens,” Smith said. “I recognize that there was a tragedy that young man lost his life in 2017. However, a mother’s grief only goes so far.”