LARIMER COUNTY COURT,

STATE OF COLORADO
COURT ADDRESS:
Larimer County Justice Center
201 La Porte Avenue, Suite 100
Fort Collins CO 80521

THE PEOPLE OF THE STATE OF COLORADO

Plaintiff,
vs.
SUSAN HOLMES,
Defendant.
<COURT USE ONLY>
ATTORNEY FOR DEFENDANT:
Jonathan Greenlee, Atty. Reg. #: 46591 Case Number: 2020CR219
Sarah Croog, Atty. Reg. #: 37979
J URDEM, LLC
820 Pearl Street, Suite H, Boulder, CO 80302
Phone: (303) 402-6717; Fax: (303) 402-6718 Division: 3C
E-mail: [email protected]; [email protected]

MOTION TO DISMISS FOR VIOLATION OF THE 1 ST AMENDMENT TO THE UNITED

STATES CONSTITUTION AND ARTICLE II SECTION 10 OF THE COLORADO
CONSTITUTION AS APPLIED TO MS. HOLMES

Ms. Holmes, by and through counsel, hereby moves this Court to dismiss the charges
against her as a violation of her right to free speech under the 1 st Amendment to the United States
Constitution and Article II Section 10 of the Colorado Constitution as applied to the facts of her
case. As grounds, Ms. Holmes states:

I. FACTUAL BACKGROUND: FILING OF TERPO PETITION

1. On January 1 st, 2020, Colorado’s “Red Flag Law” went into effect as a result of HB 1177
signed by Governor Polis on April 12 th, 2019.

2. Colorado’s “Red Flag Law” is highly controversial. Sheriff Steve Reams of Weld County
declared that he would rather be a prisoner in his own jail than enforce the law 1, and at
the time of its passage, many of Colorado’s counties declared themselves “Second
Amendment sanctuaries” and refused to devote any resources to enforcement. 2 In
Larimer County, the elected Sheriff has been a vocal opponent of the law.

1
https://www.kunc.org/post/months-controversial-gun-law-takes-effect-colorado-sheriffs-continue-resist
2
https://www.rallyforourrights.com/colorado-counties-say-we-will-not-comply-to-red-flag-law/

1
3. A citizen of Colorado may file a petition and affidavit for a Extreme Risk Protection
Order (“ERPO”) by accessing form JDF 574, which is publicly available on the Colorado
Judicial Branch Website.

4. Form JDF 574 is self-help form designed to be completed by a lay person without the
need for experienced legal counsel. Similar forms exist for other matters, such as
requesting a civil protection order (JDF 402), modifying an existing order (JDF 395 and
JDF 396) and other matters commonly handled by self-represented litigants.

5. On January 9 th, 2020, Susan Holmes, the defendant in the present matter, completed and
filed form JDF 574 requesting a ERPO against Philip Morris of the Colorado State
University Police Department, with a corresponding case number 2020CV112.

6. The JDF 574 form completed by Ms. Holmes, as provided in discovery, is attached as
Exhibit A.

7. On January 16 th, 2020, Ms. Holmes was set for a hearing on her ERPO request. At the
hearing, Ms. Holmes refused to make any further statements, rejected the authority of the
court to hear the matter, and the ERPO was refused.

8. On January 23 rd, 2020, Ms. Holmes was charged by the Larimer County District
Attorney’s Office in case 2020CR219 with Count 1: Attempt to Influence a Public
Servant, C.R.S. 18-8-306 and Count 2: Perjury, 1 st Degree, C.R.S. 18-8-502.

9. Ms. Holmes’s charges in case 2020CR219 are based on the allegation that she falsely
represented her relationship with Philip Morris in the JDF 574 form that was notarized
and submitted to the court under penalty of perjury.

10. Perjury, 1 st Degree C.R.S. 18-8-502 filings are exceedingly rare. Per aggregate data
provided by State Judicial, Counsel believes there to have been 4 other such filings in the
8 th Judicial District in the past 20 years between January 1 st, 2000 and April 1 st, 2020. Of
these four cases, three (2011CR1056, 2010CR932 & 2010CR631) were dismissed by the
Court or by the District Attorney. The only prosecution resulting in a conviction for a
violation of C.R.S. 18-8-502 since January 1 st, 2020 in the 8 th Judicial District is case
2000CR122.

11. Filings for lesser perjury-related charges are similarly rare. The 8 th Judicial District has
had three cases with charges of Perjury, 2 nd Degree C.R.S. 18-8-503 and one case with a
charge of False Swearing, C.R.S. 18-8-502 from January 1 st, 2016 to April 1 st, 2020.

12. During the same four year time period, there have been 128 cases in the 8 th Judicial
District where a temporary protection order under C.R.S. 13-14-104.5 was requested and
issued with the condition that the restrained person “shall not possess and/or purchase a
firearm, ammunition, or other weapon” where a permanent restraining order under C.R.S.
13-14-106 was ultimately not issued.

2
13. On Form JDF 574, question 1. asks the following questions and presents a list of 8
unnumbered boxes that may be checked in response (boxes have been numbered for
reference throughout this pleading, emphasis added):

I am a family or household member to the respondent. My relationship is:

1. I am related by blood, marriage, or adoption to the respondent.
2. I have a child in common with the respondent. (Regardless of
marriage or whether you have lived with the respondent at any
time.)
3. I regularly reside or have regularly resided with the respondent in the
last six months.
4. I am a domestic partner of the respondent.
5. I have a biological or legal parent-child relationship with the
respondent. (Including stepparents and stepchildren, grandparents and
grandchildren.)
6. I am acting or have acted as the respondent’s legal guardian.
7. I am the spouse or former spouse of the Respondent.
8. In the past I have been or am presently in an unmarried couple
relationship with the Respondent.

14. In completing JDF 574, Ms. Holmes checked box #2: “I have a child in common with the
respondent. (Regardless of marriage or whether you have lived with the respondent at any
time.)”

15. Ms. Holmes did not check boxes #1, 3, 4, 5, 6, 7 or 8.

16. Ms. Holmes answer by checking box #2 must be read in the context of the boxes that
remained unchecked.

17. By not checking off box #1: “I am related by blood, marriage, or adoption to the
respondent.” Ms. Holmes represented that she has no relationship by blood, marriage, or
adoption to Philip Morris. As such, Ms. Holmes represented that insofar as she indicated
she was a “family or household member” to Philip Morris, she has never been married to
Philip Morris and has no connection to Philip Morris as a relative through blood or
adoption.

18. By not checking off box #3: “I regularly reside or have regularly resided with the
respondent in the last six months.” Ms. Holmes represented that she has not resided with
Philip Morris in the past six months.

19. By not checking off box #4: “I am a domestic partner of the respondent”, box # 7 “I am
the spouse or former spouse of the Respondent” and box # 8 “In the past I have been or
am presently in an unmarried couple relationship with the Respondent,” Ms. Holmes
represented that she has never been married, in a partnership, or part of an unmarried
couple with Philip Morris .

3
20. By not checking off box # 5: “I have a biological or legal parent-child relationship with
the respondent. (Including stepparents and stepchildren, grandparents and
grandchildren.)” Ms. Holmes represented that she had no biological relationship or legal
parent-child relationship with Philip Morris.

21. By not checking off box # 6: “I am acting or have acted as the respondent’s legal
guardian” Ms. Holmes represent that she has never acted as Philip Morris ’s legal
guardian.

22. By not checking boxes #1, 3, 4, 5, 6, 7 or 8, Ms. Holmes represented to the court that she
has no relationship of blood or marriage to Philip Morris, that she has never lived with
Philip Morris in any form, that she has never been in a couple or in any form of married,
unmarried, or domestic partnership with Philip Morris, that she does not have a biological
or legal parent child relationship with the respondent or has served as a legal guardian of
the respondent at any time. As such, her relationship as a “family or household member”
could not be due to blood, marriage, adoption, legal guardianship, any past or present
relationship between the two, or any period of cohabitation.

23. Form JDF 574 does not contain any additional information as to the meaning of a having
a “child in common” with the adverse party.

24. The Extreme Risk Protection Order Statute under Title 13 Section 14.5 of the Colorado
Revised Statutes provides no additional definition as to the meaning of a “child in
common” in the “Definitions” section, C.R.S.13-14.5-102.

25. C.R.S 13-14.5-102 merely defines “family or household member” by providing the list
contained in form JDF 574 in boxes 1-8 on form JDF 574:

(2) “Family or household member” means, with respect to a respondent, any:

(a) Person related by blood, marriage, or adoption to the respondent;
(b) Person who has a child in common with the respondent, regardless of whether
such person has been married to the respondent or has lived together with the
respondent at any time;
(c) Person who regularly resides or regularly resided with the respondent within
the last six months;
(d) Domestic partner of the respondent;
(e) Person who has a biological or legal parent-child relationship with the
respondent, including stepparents and stepchildren and grandparents and
grandchildren;
(f) Person who is acting or has acted as the respondent's legal guardian; and
(g) A person in any other relationship described in section 18-6-800.3(2) with the
respondent.

26. As such, box #2 for question 2 on JDF 574 fails to define the meaning of a “child in
common” beyond stating that such a relationship may exist regardless of marriage or

4
 cohabitation. Furthermore, question #1 does not define “family or household member”
beyond providing the options of checking boxes 1 through 8.

27. To interpret Ms. Holmes answer to box # 2 as a statement that she and Philip Morris have
a child together—that is, she is the mother and he is the father of a child that shares their
DNA- is one possible interpretation out of many, and requires one to ignore both the
remainder of the JDF 574 form filed by Ms. Holmes and the context in which it was filed.

28. Form JDF 574 includes a list of questions. Nowhere on the JDF 574 submitted by Ms.
Holmes does she claim to have had a child with Philip Morris. Rather, Ms. Holmes refers
to her son, Jeremy Holmes, who was fatally shot by Philip Morris in 2017 as the sole
connection between the two.

29. The shooting of Jeremy Holmes received significant media attention, as did litigation
filed by Ms. Holmes regarding the release of unredacted body camera footage of the
incident.

30. The sole commonality between Ms. Holmes and Philip Morris is Ms. Holmes’s son,
Jeremy.

31. To have something “in common” means to share a joint interest or commonality in the
subject matter. It is a word of common usage that would be understood by a lay person.
Counsel is not aware of anywhere in the Colorado Revised Statutes outside of C.R.S. 13-
14.5-102 where the phrase “child in common” is defined, and no such definition exists
within form JDF 574.

32. As such, what constitutes a “child in common” is open for interpretation and is not
legally defined or specifically defined within form JDF 574 or the ERPO statute.

33. Ms. Holmes statement that she has a “child in common”, absent further assertions, is not
a materially false statement or misrepresentation of any kind, it is simply a statement
subject to multiple interpretations. It is abundantly clear from a plain reading of the JDF
574 form submitted to the court that Ms. Holmes’s assertion of a “child in common” is
that the shared interested in her son, Jeremey Holmes. Jeremy Holmes is in fact the only
thing that Ms. Holmes and Philip Morris do have in common – he is the only connection
that exists between the parties, because Ms. Holmes is his mother, and Philip Morris
ended his life.

34. In response to other questions within JDF 574, Ms. Holmes makes no claim that Philip
Morris is the father of Jeremyery Holmes. Rather, Ms. Holmes states “Phil Morris used
his firearm to recklessly and violently threaten and killed 19 year old Jeremy Holmes”,
that he is employed by the Colorado State University Police Department, and alleging
that he has engaged in other acts of violence unrelated to Ms. Holmes, both known and
unknown.

5
 35. As such, the assertion that is subject to prosecution in Count 1 and Count 2 is the
statement that “I am a family or household member to the respondent. My relationship is:
I have a child in common with the respondent. (Regardless of marriage or whether you
have lived with the respondent at any time.)” This statement exists within the context of a
short self-help form, completed with brief answers, with no other assertion and no claims
at a later date as to the nature of the “child in common” family or household relationship.

II. FACTUAL BACKGROUND: MS. HOLMES & PHILIP MORRIS

1. Susan Holmes has been subject to extensive media coverage since the fatal shooting of
her son, Jeremy Holmes, by law enforcement officers in 2017. Following the fatal
shooting, which received significant coverage in the media, Ms. Holmes became involved
in protests against police brutality, campaigned for local office on a platform of police
reform, and litigated the release of unredacted body camera footage of her son’s death.
Ms. Holmes actions continued to receive extensive coverage in the media and were the
subject to public comment by numerous public officials involved in the case.

2. On July 1 st, 2017, Jeremy Holmes, son of Susan Holmes, was fatally shot by Colorado
State University and Fort Collins police. 3 The incident was investigated by the 8 th
Judicial District Critical Response Team, and on July 3rd, 2017, Fort Collins Police
officer Erin Mast and Colorado State University Cpl. Philip Morris were identified as the
officers involved. 4

3. On July 17 th, 2017, Larimer County District Attorney Cliff Riedell cleared Morris and
Mast of any wrongdoing in the fatal shooting, writing that “"Officer Morris showed
amazing restraint in not utilizing lawful deadly force earlier in the confrontation with
Jeremy Holmes” and that "Had [Jeremey Holmes] survived, sufficient evidence exists to
have charged Holmes with three counts of Attempted First Degree Murder and two
felony counts of menacing with a deadly weapon." 5 Other public figures, such as Fort
Collins Police Interim Chief Terry Jones, publicly praised the officers’ actions.

4. On November 21 st, 2017, the Colorado State University Police Department released
redacted body camera footage of the fatal shooting. 6

5. In December 2018, Ms. Holmes filed a civil lawsuit demanding the release of unredacted
body camera footage.7

6. In late 2018, Ms. Holmes also ran for Fort Collins City Council on a platform of police
reform, focused on police brutality and use of force policies.8

3
https://www.coloradoan.com/story/news/local/fort-collins/2017/07/02/fort-collins-police-report-officer-involved-shooting-near-csu/446457001/
4
https://www.coloradoan.com/story/news/2017/07/03/law-enforcement-officers-killed-two-men-weekend -what-we-kno w/448241001/
5
https://www.coloradoan.com/story/news/2017/07/19/district-attorney-officer-showed-amazing-restraint-july-shooting/492044001/
6
https://www.coloradoan.com/story/news/2017/11/21/police-body-camera-video-fatal-shooting-jeremy-holmes/884711001/
7
https://www.coloradoan.com/story/news/2018/12/22/mother-man-fatally-shot-fort-collins-csu-police-files-complaint-complete-body-cam-
footage/2391338002/
8
https://www.coloradoan.com/story/news/2019/03/14/fort-collins-city-council-election-district-2-susan-holmes-stances/3086928002/

6
 7. During her run for City Council, Larimer County Sheriff Justin Smith posted public
online social media statements of opposition to Ms. Holmes. 9 Sheriff Smith has
repeatedly posted on social media about Ms. Holmes and her case. Ms. Holmes was not
elected to the City Council. 10

8. On July 30 th, 2019, District Court Judge Michelle Brinegar denied Ms. Holmes’s request
for release of unredacted body camera footage.

9. On January 9 th, 2020, Ms. Holmes filed a request for an extreme risk protection order
against Colorado State Police Cpl. Philip Morris. 11

10. In response to the request for an ERPO, Sherriff Smith again took to social media. On
January 15 th, 2020, Sheriff Smith posted to his public Facebook account, in relevant part:

“Larimer County has become ground zero for Colorado’s Extreme Risk Protection Order
(aka Red Flag) Law within days of its implementation…On the other extreme, we’ve also
witnessed another scenario that demonstrates the tremendous procedural deficiencies in the
ERPO law- deficiencies I’ve spoken out about many times over the previous year. In that
case, Susan Holmes filed a petition against a CSU police officer who was involved in a
deadly force encounter with Ms. Holmes adult son in 2017. Evidence in that 2017 case
irrefutably supported the actions of both the CSU and another Fort Collins officer.
However, under Colorado’s flawed ERPO law, Ms. Holmes was able to file a petition
against the CSU officer, despite the facts that Ms. Holmes has no legal standing and the
petition on its face has zero merit. That petition was delivered to my office for service. I
have not and will not be serving that petition, not because it’s against a police officer, but
because it is a fraud. We are actively investigating this abuse of the system and we will
determine what charges may be substantiated against the petitioner, Ms. Holmes. Because
this represents an active investigation, I will not be making any additional comments on
this case at this time.”

11. Sherriff Smith’s public post received 694 “likes”, 232 individual comments, and 290
shares. Many of these comments have additional “likes.” These comments 12 include things
such as:

a. KK: “Thank you! I hope you're able to take Mrs Holmes to the proverbial wood
shed to make an example that fraudulent claims shan't be tolerated. It also makes
me think she acted in cahoots with someone to falsely target a peace officer, to have
her claim rejected, thereby allowing her to cry that the "law," favorably applied to
the men and women in blue.”

9
https://www.coloradoan.com/story/news/2019/03/26/2019-fort-collins-election-district-2-susan-holmes-protested-police-brutality/3271923002/
10
https://www.coloradoan.com/story/news/2019/04/02/fort-collins-city-council-election-results-too-close-call/3344401002/
11
https://www.coloradoan.com/story/news/2020/01/14/colorado-red-flag-law-larimer-susan-holmes-files-against-csu -police-o fficer-who-shot-
jeremy-holmes/4472112002/
12
Names of individuals making public comments have been redacted to initials only in an effort to protect the privacy of those making such
comments in a case that has garnered much media attention.

7
 b. A.L.S.: “There need to be SERIOUS repercussions for Ms. Holmes for her
fraudulent claim, otherwise, this law will continue to be abused by many people
seeking revenge.”
c. J.S.: “Ms. Holmes needs to be made an example of. Lock her up for 25 to life.”
d. S.T. “She should go to jail.”

12. Shortly after the above post on January 15 th, 2020, Sheriff Smith posted again in regard to
Ms. Holmes, sharing a photograph of her holding a sign with the following comment:

Credit to the CSU Collegian- this is a photo of Susan Holmes (Holding up the sign
reading Kill All Police They Are Killing US), who filed the ERPO petition against a CSU
PD officer alleging that represents a danger to others.

13. This second post on January 15 th, 2020, received 421 “likes”, 133 comments and 132
shares. Comments include statements such as:

a. D.R.: “I support law enforcement officers. This goes beyond free speech. She is
inciting violence and it should be stopped.”
b. L.P.: “Talk about a studip [sic] woman . I say first police officer killed because of
her, she should be charged with first degree homicide! Just saying!”
c. M.R.: “That woman should be arrested for promoting violence against humans.
Regardless of whether they wear a badge or not, they're still human beings and she
is breaking the law.”
d. R.P.: “She's the one that should be locked up!”
e. E.N.: “The way I see it, she is responsible for her son's death. She raised him to
become the sociopath that he was, she called 911 that night. So is this her guilt
trip?”

14. On January 16 th, 2020, Sherriff Smith posted in regard to Ms. Holmes again:

10 a.m. this morning, the ERPO hearing is scheduled at the Larimer County Justice Center.
Yesterday, my staff formally advised the court that we had not and would not be serving
Susan Holmes’ fraudulent petition on Corporal Morris.
I will be present at the hearing in Courtroom 3A, prepared to answer any questions the
judge might have for me.
I appreciate all of your support.

15. On January 31 st, 2020, Sheriff Smith posted regarding a warrant being issued for Ms.
Holmes:

Yesterday, through our weekly Most Wanted, we publicly announced the filing of
charges against Susan Holmes.
Ms. Holmes is charged with perjury and attempting to influence a public servant for her
fraudulent filing of an ERPO against a CSU police officer earlier this month. Both
charges are felonies and the warrants authorize nationwide extradition

8
 To date, we have been unable to locate and apprehend Ms. Holmes and we are asking for
your help. If you know the whereabouts of Susan Holmes, please call the Larimer County
Sheriff’s Office at 970 416-1985.

16. The January 31 st, 2020 post received 587 likes, 96 comments, and 186 shares. Comments
include:
a. K.S.: “ No sweetheart deferred plea bargains!! Make her plead to a felony or go to
trial and make an example of her to deter further abuses like this.”
b. C.P.: “What a surprise??? Another left wacko that’s lying.”
c. D.A.: “I hope they DON'T let her plea it down to a misdemeanor. The DA needs
to make an example of her and people like her.”

17. Following Ms. Holmes arrest, Sheriff Smith posted on February 7 th 2020 a link to a
media article favorable to Ms. Holmes and critical of the political motivations in her
prosecution and being placed at the top of the “Most Wanted” list, stating “If you care to
witness the dying gasp of yellow journalism, my [sic] I suggest Westword. Despite this
glaring example of an Assault Media, I still defend the 1st Amendment, like the rest of
our Constitution.”

18. Despite having no criminal history, no allegation of ever having committed a violent
crime, and no reasonable grounds to even allege that Ms. Holmes was a threat to the
community, Ms. Holmes was listed as the top fugitive on Larimer County’s “MOST
WANTED” list. Ms. Holmes is listed alongside fugitives wanted for crimes such as
assault with a deadly weapon, 1 st degree burglary, distribution of a controlled substance
with a firearm, and sexual assault.

19. In addition to the comments by Sherriff Smith, Ms. Holmes’ case has been subject to
extensive pre-trial publicity, including articles on Westword 13, The Coloradan 14, 9
News 15 and countless other media sources.

13
https://www.westword.com/news/see-red-flag-user-susan-holmes-arrest-on-live-video-11632256
https://www.westword.com/news/susan-holmes-on-dismissal-of-colorado-red-flag-law-petition-ag ainst-cop-11611954
https://www.westword.com/news/colorado-red-flag-law-and-controversial-susan -holmes-filing-update-11609942
https://www.westword.com/news/colorado-red-flag-law-and-controversial-susan -holmes-filing-update-11609942
https://www.westword.com/news/warrant-target-susan-holmes-denies-red-flag-law-perjury-11626358
https://www.westword.com/news/mom-seeks-justice-for-jeremy-holmes-killed-by-csu-and-fo rt-collins-police-10757082
https://www.westword.com/news/mom-of-police-shooting-victim-jeremy-holmes-sues-csu-for-transparency-not-cash-11056870
https://www.westword.com/news/jeremy-holmes-csu-police-shooting-and-body-camera-footage-fight-11449151
14
https://www.coloradoan.com/story/news/2020/02/04/colorado-red-flag-law-susan-holmes-arrested-suspicion-perju ry/4663056002/
https://www.coloradoan.com/story/news/2020/01/30/arrest-warrant-issued-susan-holmes-perjury-red-fl ag-filing/2858674001/
https://www.coloradoan.com/story/news/2020/01/14/colorado-red-flag-law-larimer-susan-holmes-files-ag ainst-csu-police-officer-who-shot-
jeremy-holmes/4472112002/
https://www.coloradoan.com/story/news/2020/02/13/timeline-fort-collins-woman-susan-holmes-colorado-red-flag-case/4667136002/
https://www.coloradoan.com/story/news/2020/02/14/susan-holmes-appears-court-first-time-perjury-charge-colorado-red-fl ag-law-
case/4723689002/
https://www.coloradoan.com/story/news/2019/02/20/susan-holmes-removed-police-city-hall-during-de-escalation-p rotest/2924077002/
https://www.coloradoan.com/story/opinion/2019/02/26/fort-collins-council-candidate-susan-holmes-focuses-police-oversight/2984940002/
https://www.coloradoan.com/story/news/2020/01/15/sheriff-justin-smith-calls-susan-holmes-red-flag-petition-fraud-colorado-csu -police-s econd-
amendment/4476796002/
https://www.coloradoan.com/story/news/2020/01/16/colorado-judge-rules-red-flag-case-filed-susan -holmes-ag ainst-colorado-state-police-
officer/4483559002/
15
https://www.9news.com/article/news/local/next/red-flag-colorado-susan-holmes-releas ed-jail/73-76b501b3-b a8b-40d3-9452 -5109540e1237
https://www.9news.com/article/news/crime/woman-who-tried-to-use-red-flag-l aw-to-disarm-offi cer-arrested-in-fort -collins/73-55adf445-96 cd-
4599-ab95-e23e3744a6d4

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 III. ARGUMENT

1. The 1 st Amendment to the United States Constitution states: “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.”

2. Article II Section 10 of the Colorado Constitution states: “No law shall be passed impairing
the freedom of speech; every person shall be free to speak, write or publish whatever he will
on any subject, being responsible for all abuse of that liberty; and in all suits and
prosecutions for libel the truth thereof may be given in evidence, and the jury, under the
direction of the court, shall determine the law and the fact.”

3. The purpose of the right to free speech is to protect against the criminalization of unpopular
speech or opinions. All laws that criminalize or penalize forms of speech, be it perjury,
threats, or defamation, must fall within the prosecutions of the 1st Amendment.

4. Ms. Holmes’s charges in the present case seek to criminalize her free speech and her right to
petition the court. Ms. Holmes faces prosecution for perjury because she attempted to use an
unpopular law to take the firearm away from a law enforcement officer who killed her son.

5. Ms. Holmes does not challenge the constitutionality of the statutes charged against her, but
the application to the facts of her case as a violation of her right to free speech. “Where a
statute is not impermissibly overbroad, a challenger must show that the statute
is unconstitutional as applied to his or her conduct.” People v. Baer, 973 P.2d 1225, 1231
(Colo. 1999).

6. “To prevail on an as-applied constitutional challenge, the challenging party must “establish
that the statute is unconstitutional ‘under the circumstances in which the plaintiff has acted or
proposes to act.’” Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1085 (Colo. 2011)
(quoting Developmental Pathways v. Ritter, 178 P.3d 524, 534 (Colo. 2008)).

7. “The practical effect of holding a statute unconstitutional as applied is to prevent its future
application in a similar context, but not to render it utterly inoperative.” People v. Maxwell,
2017 CO 46, ¶ 7, 401 P.3d 523, 524.

8. A statute which places a restraint on freedom of speech must be narrowly and precisely
drawn so that the proscription applies only to speech which the government may

https://www.9news.com/article/news/local/next/warrant-issued-for-woman-who-tried-to -use-red-flag-law-to-disarm-officer/73-6 f2778a2-0105-

43b4-81f2-bb6b457d0fec
https://www.9news.com/article/news/local/next/larimer-county-judge-denies-extreme-prot ection-ord er-csu-cop/73-0ed932d4-d182 -4808-8da3-
0b51472d8ae9
https://www.9news.com/article/news/local/next/colorados-red-flag-law-used-to-target-officer-involved-in -fatal -shooting/73-f52ddaca-893d-493b-
983c-db9ecf250ad3
https://www.9news.com/video/news/local/next/colorados-red-flag-law-used-to-target-o fficer-involved -in-fatal-shooting/73-efd65923-a011-4113 -
bdb3-d294af3b6f01

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 constitutionally prohibit. People ex rel. VanMeveren v. Cty. Court In & For Larimer Cty.,
191 Colo. 201, 203, 551 P.2d 716, 718 (1976)

9. Various state and federal courts have considered perjury prosecutions in light of the right to
free speech and the danger of creating a chilling effect on free speech by using perjury
prosecutions as a way to punish statements.

10. Like “true threats,” perjury falls outside of the protections of free speech. Yet what
constitutes perjury must comport with the protections for free speech.

11. When considering a perjury prosecution, Courts have recognized that “there are two parts of
a dialogue to every perjury charge: the question asked, and the answer given.” United States
v. Strohm, 671 F.3d 1173, 1178 (10th Cir. 2011)

A. “The Answer Given”: Literal Truth

1. A defendant's truthful answer to a reasonable interpretation of an ambiguous question does

not constitute perjury. United States v. Hilliard, 31 F.3d 1509, 1519 (10th Cir. 1994).

2. Furthermore, where a question admits of two reasonable interpretations, some evidence must
show what the question meant to the defendant when she answered. United States v. Farmer,
137 F.3d 1265, 1269 (10th Cir. 1998).

3. A perjury conviction cannot be based on “an impermissible negative implication and

ambiguous circumstances.” United States v. Strohm, 671 F.3d 1173, 1184 (10th Cir. 2011).

4. When looking at the answer given, Courts have considered whether a perjury prosecution is
proper when a statement is literally true, yet unresponsive or misleading in the context of the
question asked. In Bronston¸ the United States Supreme Court considered whether a
defendant “may be convicted of perjury [under U.S.C. 1621] for an answer, under oath, that
is literally true but not responsive to the question asked and arguably misleading by negative
implication.” Bronston v. United States, 409 U.S. 352, 353 (1973). The Court held a witness
may not be convicted of “perjury for an answer, under oath, that is literally true but not
responsive to the question asked and arguably misleading by negative implication. Id.

5. In Bronston, the defendant was asked the following questions during a federal bankruptcy
proceeding:
i. ‘Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?
ii. ‘A. No, sir.
iii. ‘Q. Have you ever?
iv. ‘A. The company had an account there for about six months, in Zurich.
v. ‘Q. Have you any nominees who have bank accounts in Swiss banks?
vi. ‘A. No, sir.
vii. ‘Q. Have you ever?
viii. ‘A. No, sir.’

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6. It was undisputed that Mr. Bronston had a personal bank account in Switzerland for a period
of 5 years, but not at the time the questions was asked, that the company did have an account
in Zurich for a period of six months, and that he did not have and never had any nominees
with Swiss bank accounts. Id. As such, Mr. Bronston’s answers were literally truthful,
despite the answers clearly being intended to mislead as to the question whether Mr.
Bronston had personally had a Swiss bank account, the focus on the inquiry.

7. In assessing the answers to these questions, the Supreme Court noted that “[t]here is, indeed,
an implication in the answer to the second question that there was never a personal bank
account; in casual conversation this interpretation might reasonably be drawn. But we are not
dealing with casual conversation and the statute does not make it a criminal act for a witness
to willfully state any material matter that implies any material matter that he does not believe
to be true.” Id. at 357–58.

8. The Court further held that any decision must be made in “light of our own and the
traditional Anglo-American judgment that a prosecution for perjury is not the sole, or even
the primary, safeguard against errant testimony.” Id. at 360.

9. As such, Bronston’s answers, though misleading and potentially intentionally so, could not
amount to perjury when his answers were still, in response to the questioning, literal truth.

10. Cases applying the rule in Bronston have further stated that a “jury should not be permitted to
engage in conjecture whether an unresponsive answer, true and complete on its face, was
intended to mislead or divert the examiner” and that “the perjury statute was not intended to
cover unresponsive testimony that is untrue only by “negative implication,” despite the
misleading nature of such testimony.” United States v. Eddy, 737 F.2d 564, 566–67 (6th Cir.
1984).

11. In United States v. Eddy, 737 F.2d 564, 567 (6th Cir. 1984), the Sixth Circuit Court of
appeals held that Mr. Eddy could not be convicted for perjury for testimony under oath where
he denied submitting an official Ohio State University diploma and a genuine university
transcript during his meetings with naval recruiters, when all other evidence showed he had
in fact submitted a such documents, but they were fraudulent and neither official or genuine.
The Court found that “Eddy's negative responses to the prosecutor's questions were the literal
truth “in light of the meaning that he, not his interrogator, attributed to the questions and
answers… and therefore, could not support a perjury conviction.” Id. at 569–70 (internal
citations omitted).

12. The Court further rejected the argument that testimony that was unresponsive or even
intentionally misleading could be the basis of a perjury charge: “An “intent to mislead” or
“perjury by implication” is insufficient to support a perjury conviction. Bronston, 409 U.S. at
359, 93 S.Ct. at 600; United States v. Slawik, 548 F.2d 75, 83-84 (3d Cir.1977). “[I]f the
prosecutor never asks the critical question and never presses for an unequivocal answer the
defendant may not be convicted of false swearing.” Slawik, supra, 548 F.2d at 84.” Id. at 56.

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13. In United States v. Good, 326 F.3d 589, 591–92 (4th Cir.2003), the court reversed a false
statement conviction because the defendant's negative response to a question on a security
badge application as to whether she had been convicted of “Burglary, Theft, Armed robbery,
Possession or Distribution of Stolen Property ... [,] Dishonesty, Fraud, or Misrepresentation”
was “literally true.” Although the defendant had been convicted of embezzlement, Virginia
law treated embezzlement as a distinct offense, which “was not one of the crimes listed on
the application” therefore the defendant's answers were “literally true” within the meaning
of Bronston.

14. Similarly, in United States v. Earp, 812 F.2d 917, 918–20 (4th Cir.1987), a federal court
reversed a conviction when the defendant's answer to a question—had he ever burned crosses
at the residences of interracial couples—was literally true, though arguably intended to
mislead given that the defendant had stood watch with a shotgun while others tried and failed
to light the cross.

15. Courts have rejected the argument that when a question is ambiguous, it is for the jury to
decide whether the witness has committed perjury. Bronston discredited this type of jury
conjecture. Bronston, 409 U.S. at 359, 93 S.Ct. at 600. A contrary rule would allow a jury to
infer from a witness' unresponsive answer to a vague question that the witness knew his or
her testimony to be false. Id. at 569–70.

16. As such, “[p]recise questioning is imperative as a predicate for the offense of

perjury.” Bronston, 409 U.S. at 362, 93 S.Ct. at 602. An answer to a question that is
misleading, yet literal truth, cannot be the basis for a perjury prosecution.

17. Where Ms. Holmes to be asked “What do you have in common with Philip Morris?” and her
response was “My child, Jeremy Holmes”, her answer would be literally true.

18. Ms. Holmes’s answer her relationship to Philip Morris from the list of relationships that
constitute a family or household member that “I have a child in common with the respondent.
(Regardless of marriage or whether you have lived with the respondent at any time.)” is
literally true if the word “in common” is read to have a laypersons’ definition of merely a
shared or joint interest in the subject matter, rather than a legally defined parent-child
relationship.

B. “The Question Asked”: Ambiguity and Misleading Answers

1. Courts have also considered and rejected that a perjury prosecution can be sustained when
the testimony subject to the charge is the result of an ambiguous questions: “We also reject
the argument that, when a witness is confronted with ambiguous questions, it is for the jury
to decide whether the witness has committed perjury.” United States v. Eddy, 737 F.2d 564,
570 (6th Cir. 1984).

2. There is limited Colorado authority on these issues. However, in People v. Luke, the Court
cited Bronston when ruling that a negative answer to whether a defendant had a judgement
“rendered against him” reported on a Colorado Limited Gaming application was insufficient

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 when there had been settlements, but not judgments, and therefore “the jury should not be
permitted to conjecture whether defendant read the question broadly and knowingly
misrepresented the circumstances by failing to report the case, or read the question narrowly
and, from his perspective, answered it accurately.” People v. Luke, 948 P.2d 87, 92 (Colo.
App. 1997).

3. Numerous federal courts have also considered and found that “vague and ambiguous”
questions are not acceptable as a basis for a perjury prosecution. See United States v.
Wall, 371 F.2d 398, 399-400 (6th Cir.1967), cited with approval in Bronston, 409 U.S. at
360, 93 S.Ct. at 600; United States v. Finucan, supra, 708 F.2d at 846-48; United States v.
Tonelli, 577 F.2d at 200; United States v. Cook, 497 F.2d 753, 764 (9th Cir.1972) (Ely, J.,
dissenting).1 But cf. United States v. Bell, 623 F.2d 1132, 1136 (5th Cir.1980) (defendant's
understanding of the question is a matter for the jury to decide).

4. A question is arguably ambiguous where more than one reasonable interpretation of a

question exists. United States v. Strohm, 671 F.3d 1173, 1181 (10th Cir. 2011)

5. What constitutes a familiar or household relationship by having a “child in common…

regardless of whether such person has been married to the respondent or has lived together
with the respondent at any time” is an inherently ambiguous question, as it conflates the
“question asker’s” interpretation of “in common” with the potential for the answerer to
interpret “in common” with the general meaning of the phrase to include a host of
commonalities far beyond the scope of what the questioner may have intended.

6. The failure of JDF 574 or Colorado law to specifically define the meaning of a “child in
common” adds to this level of ambiguity.

7. Ms. Holmes’s answer that she has a “child in common” with Philip Morris must be
interpreted in light of the complete JDF 574 form submitted under oath, including both her
failure to endorse any of the other 7 options for question 2, and her additional statements in
the remainder of the form that only describe the relationship between her and Philip Morris to
be his involvement in her son’s death.

8. Courts have found that context is key when a word at issue has multiple meanings. In United
States v. Hairston, 46 F.3d 361, 375–76 (4th Cir.1995), the court reversed a conviction when
context made it “obvious” that the defendant used the word “prepare” in a particular manner
and so her answer was literally true. The word at issue, “prepare”, was susceptible of several
possible meanings, including to “make ready beforehand for some purpose: [to] put into
condition for a particular use, application, or disposition” and to “draw up” or “put into
written form.” The prosecutor apparently had in mind the former definition, while the
defendant had the latter, yet “[f}rom the context of Mack's testimony, it is obvious that she
used the term in a manner consistent with the latter definition.” United States v. Hairston, 46
F.3d 361, 376 (4th Cir. 1995).

9. Here, the meaning of Ms. Holmes’s answer that she has a “child in common” with Philp
Morris is obvious within the context of the complete JDF 574 form, where she refers to

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 “Ofc.” Philip Morris, notes he is a police officer with the Colorado State University Police
Department, and states that he “used his firearm to recklessly and violently threaten and
killed 19 year old Jeremy Holmes.” Just as the meaning of the word “prepare” was clear
within the context of the complete testimony in Hariston, Ms. Holmes’s meaning of “in
common” is clear within the complete context of the rest of the submitted form.

10. The intention behind asking if there a “child in common” in irrelevant; what matters is only
the ambiguity of the question, and the literal truth of the answer.

11. The proper remedy for a wily or unresponsive answer to an ambiguous question is not a
perjury prosecution, but rather for the questioner to pursue the desired answer. Bronston, 409
U.S. at 362, 93 S.Ct. at 602; see also United States v. Cook, 497 F.2d at 765. United States v.
Eddy, 737 F.2d 564, 571 (6th Cir. 1984).

C. C.R.S. 18-8-306 and C.R.S. 18-8-502 are Unconstitutional as Applied to Ms.

Holmes.

1. In context, it is clear from form JDF 574 that Ms. Holmes answered that her relationship to
Philip Morris is a child “in common” and that this commonality was that Ofc. Morris had
shot and killed her son, Jeremy Holmes on July 1 st, 2017. Ms. Holmes made no statements,
either in form JDF 574 or during her EPRO hearing claiming that Philip Morris was the
“father” of Jeremy Holmes. Furthermore, is it abundantly clear from the Larimer County
Sheriff’s Office public statements regarding Ms. Holmes, including refusal to even serve the
petition as required by law, that all parties involved were aware of the exact nature of the
relationship between Ms. Holmes and Mr. Morris.

2. Since Jeremy Holmes’s death, Ms. Holmes has engaged in litigation and political action that
has been directed against both law enforcement and the District Attorney’s office.

3. Despite numerous temporary orders being filed in the 8 th Judicial District that resulted in a
person being deprived of their firearms and yet later failed to produce sufficient evidence for
the order to become permanent, Ms. Holmes faces being the only person convicted of perjury
in the 8 th Judicial District since the year 2000.

4. Ms. Holmes is being prosecuted for a answering an ambiguous question that failed to define
the meaning of a “child in common” with a literally true answer that within its complete
context clearly intended to communicate that the sole nature of the relationship between her
and Philip Morris is their connection through Jeremey Holmes.

5. To the extent that Ms. Holmes’s attempt may have stretched the purpose of the ERPO statute,
her prosecution in the present case is an attempt to “make an example” out of her and to
discourage her from continuing in her actions against law enforcement in Larimer County,
both in general and in connection to Jeremy Holmes’s death.

6. For a violation of C.R.S. 18-8-306, the prosecution must prove that Ms. Holmes “attempted to
influence Stephen E. Howard, a public servant, by means of deceit, with the intent thereby to
alter or affect the public servants decision, vote, opinion, or action concerning a matter which

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 was to be considered or performed by the public servant or the agency or body of which the
public servant was a member.”

7. For a violation of C.R.S. 18-8-306, the prosecution must prove that Ms. Holmes “knowingly
made a materially false statement, alleging that she had legal standing and that Larimer County
had venue over an application for an Extreme Risk Protection Order ,, which she did not believe
to be true, under an oath required or authorized by law.”

8. The crux of both charges is the allegation that Ms. Holmes made a false statement in
checking that she has a “child in common” with Philip Morris on form JDF 574 submitted to
the court.

9. Criminalization of a literally true answer to an ambiguous question risks a chilling effect on

free speech. Considering that “child in common” is not defined by Colorado law, by the
standard applied to Ms. Holmes a person could face both Perjury-1 st Degree and Attempt to
Influence a Public Servant charges for any such petition where there is disagreement as to
whether the petitioner’s interpretation of what a “child in common” fits with the
prosecution’s understanding of the phrase, or any other phrase that does not have a specific
legal definition where there is debate as to its meaning.

10. The ability to test the parameters of a new law or regulation through litigation is inherent to
the very nature of free speech. When new legislation is passed, the Court is then tasked with
determining the precise meaning and implication of the language within such legislation as
applied to real cases. Litigation over the precise meaning of words and phrases within new
legislation is commonplace and well accepted within the legal community.

11. At the heart of caselaw that balances prosecutions for false statements with free speech
protections is the fundamental principal that it is the due process of law that is the primary
protection against falsity: “prosecution for perjury is not the sole, or even the primary,
safeguard against errant testimony” as the “burden is on the questioner to pin the witness
down to the specific object of the questioner's inquiry.” Bronston v. United States, 409 U.S.
352, 360, 93 S. Ct. 595, 601, 34 L. Ed. 2d 568 (1973).

12. Here, all legal procedures worked as intended. Ms. Holmes submitted form JDF 574. Upon
review, the Larimer Sheriff was immediately aware of the nature of the ERPO petition and,
knowing that the sole commonality between Ms. Holmes and Mr. Morris was the death of
her son, Jeremy Holmes, refused service of the petition. Upon being granted a hearing in
accordance with the statute, Ms. Holmes refused to make any further statements, and her
petition was denied. Officer Philip Morris was never deprived of his right to a firearm.

13. By the standard applied to Ms. Holmes, the District Attorney could prosecute other
individuals with the same charges in numerous circumstances, many of which commonly
occur. For example, form JDF 402 “Verified Complaint/Motion for Civil Protection Order”,
a commonly used self-help form similar in nature to JDF 574, request in Question 1 that a
person selected, answered under oath and penalty of perjury, that they are seeking a
protection order as the victim of “Domestic Abuse (§13-14-101(2), C.R.S.), Stalking (§18-3-
602, C.R.S.), Sexual Assault (§18-3-402(1), C.R.S.), Unlawful Sexual Contact (§18-3-404,

16
 C.R.S.), Abuse of the Elderly or an At-Risk Adult (§26-3.1-101(1) and (7), C.R.S.), Physical
Assault, Threat or other situation.” While unlike JDF 574 these options largely cite to
specific legal statutes that define their meaning, a layperson who selects, for example,
“Sexual Assault” and then describes or proves circumstances that only constitute sexual
harassment or generally improper behavior could be criminal charged, even if the petition
was denied at the initial ex parte hearing without service upon the would-be protected party.

14. Ms. Holmes is not the only Coloradoan to test the limits of the ERPO statute. For example,
an inmate at the Weld County Jail filed an ERPO against Weld County Sheriff Reams and his
deputies based on a claim that he has standing as “he regularly resides with Reams and the jail
deputies.”16 The Court denied his petition.

15. The inmate, Leo Crespin, has since refiled similar ERPO petitions two more times on the
same grounds and alleging standing based on his broad interpretation of whether he “resides”
with Sheriff Reams and other jail deputies. 17 Opponents of the ERPO law have cited this as
an example of the how the statute itself is defective due to poor wording that leaves the scope
of the law open to interpretation, burdening the courts with the task of sorting through
potentially frivolous lawsuits that do not fit the original intent of the statute.

16. What constitutes a proper basis for an EPRO to be granted is properly determined by the
courts when considering the petition as provided for in the statute. Within the protections of
free speech, citizens are free to tests the limits of the law to determine the precise parameters
of how it applies, including whether having a “child in common” encompasses a situation
where a mother files a petition against the individual who killed her child.

17. Ms. Holmes’s prosecution in the present case is political. It is intended to make an example
out of her, to discourage filing of ERPO petitions, and to discourage attempts to file ERPO
petitions in a manner that would broadly interpret the law and expand the scope of the law.

18. The statement at the heart of Ms. Holmes’s prosecution is one that is the result of a poorly
crafted law, failing to define the precise meaning of an answer, and resulting in a conflict
between a layperson’s possible understandings of what it means to have a thing “in common”
and a legal term of art used on a self-help form that is purportedly intended to be completed
by a person without legal training or knowledge. As such, Ms. Holmes provided an answer
that is literally true in the manner that in context she clearly intended it to mean and was in
response to an ambiguous question. The 1 st Amendment to the United States Constitution and
Article II Section 10 of the Colorado Constitution do not permit prosecution in such
circumstances.

WHEFORE, Ms. Holmes, by and through counsel, hereby moves this Court to dismiss the
charges against her as a violation of her right to free speech under the 1 st Amendment to the
United States Constitution and Article II Section 10 of the Colorado Constitution as applied to
the facts of her case.

16
https://www.greeleytribune.com/2020/03/02/sheriff-inmates-filing-of-red-flag-petition-shows-issues-with-law/
17
https://pagetwo.completecolorado.com/2020/05/04/weld-sheriffs-vocal-opposition-to-governor-lands-him-third-red-flag-filing-and -aclu -suit/

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 Respectfully submitted this 27 th day of July 2020.

S/ Jonathan Greenlee
Jonathan Greenlee, No. 46591

CERTIFICATE OF SERVICE

I hereby certify that I have delivered a true and correct copy of the foregoing was served
electronically via ICCES and/or by depositing same in the U.S. Mail, postage prepaid, this 27 th
day of July 2020, addressed to the following:

Office of the District Attorney

201 Laporte Ave #200
Fort Collins, CO 80521 s/ Jonathan Greenlee
JURDEM, LLC

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