District Court, Fort Collins, Colorado

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.

COLORADO STATE UNIVERSITY,

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

COMPLAINT AND APPLICATION FOR ORDER TO SHOW CAUSE

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

and Application for Order to Show Cause.

INTRODUCTION

1. This civil action is brought pursuant to the Colorado Criminal Justice Records Act.

(“CCJRA”). See C.R.S. § 24-72-301, et seq.

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

killed her nineteen (19) year old son, Jeremy Holmes.

3. Since her son was killed, Ms. Holmes has made at least three separate requests to

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

the aforementioned incident.

4. Consistent with the fundamental philosophy of the American constitutional form 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

maintenance, access and dissemination, completeness, accuracy, and sealing of criminal

justice records are matters of statewide concern.

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

authority to arrest and detain persons against their will.

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.

JURISDICTION, VENUE & PARTIES

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,

and Plaintiff resides in Larimer County.

9. Ms. Holmes, an individual, is a resident of the State of Colorado.

10. Ms. Holmes is a “person” as defined by the CCJRA. C.R.S. § 24-72-302(9).

11. Defendant Colorado State University is the “official custodian” of the criminal justice

records at issue in this case. See C.R.S. § 24-72-302(5), (8).

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

permit such inspection.” Id.

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

Son Killed by Police, WESTWORD (Oct. 10, 2018),

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)

miles away and within the confines of Ft. Collins.

16. Concerned for the safety of Jeremy and Alec, Ms. Holmes attempted to call Alec and his

wife, Christie Lutzke, but neither of them answered her calls.

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

being particularly important.

19. After realizing that Alec’s apartment was located on the CSU campus, the FCPS dispatch

officer decided to refer the call to a CSU dispatch officer.

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

was suffering from mental health issues.

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

multiple gun shots.

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,

Campus Police Officer Phillip Morris.

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

Morris and FCPS Police Officer Erin Mast.

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

clearly justified pursuant to C.R.S. section 18-1-704.”

26. The findings released by DA Riedel were four (4) and a half pages in length, and

contained no other documents associated with the underlying investigation conducted by

Critical Incident Response Team (“CIRT”) for the Eighth Judicial District. Accordingly,

no reports, photos, dispatch and communication records, witness interviews, or ballistic

data—all of which was reviewed by DA Riedel before reaching his findings—have been

released to the public or Ms. Holmes.

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

had been obtained from the responding officers’ body cameras.

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

received a response from Melissa Funk, a Victims Service Supervisor employed by

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

were still conducting internal investigations into the incident.

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

Holmes on July 1, 2017.”

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,

2017 at the offices of FCPS.

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

are located at 2221 Timberline Rd., Ft. Collins, Colorado 80521.

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

limited by FCPS, thereby preventing Ms. Holmes from engaging in a comprehensive

review of the video.

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

of Jeremy Holmes shooting, COLORADOAN (Nov. 21, 2017),

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

footage, clearly show officers shooting and killing Jeremy Holmes.

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

Aron. See EXHIBIT 1.

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

interest under C.R.S. § 24-72-305(5).” See EXHIBIT 2.

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

allowing inspection or public disclosure of criminal justice records.” See EXHIBIT 4.

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

Custodian of Records requesting:

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

for denial that had been previously communicated to Ms. Holmes. Id

LAW APPLICABLE TO PLAINTIFF’S CCJRA CLAIM

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,

recordings, or other documentary materials, regardless of form or characteristics, that are

made, maintained, or kept by any criminal justice agency in the state for use in the

exercise of functions required or authorized by law or administrative rule.” Madrigal v.

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

matters of statewide concern.” C.R.S. § 24-72-301(1).

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

discretion in determining whether to release criminal justice records, there is a well-

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

contrary to the public interest.’”).

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

by a decision to allow inspection; (2) the agency’s interest in keeping confidential

information confidential; (3) the agency’s interest in pursuing ongoing investigations

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,

196 P.3d at 898.

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.”

Id. (emphasis added).

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

permit inspection of such record.” C.R.S. § 24-72-305(7).

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)

(“The General Assembly’s ultimate purpose in providing for judicial review of

discretionary inspection determinations and authorizing the courts in appropriate

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

explained, do not withstand examination under an abuse of discretion standard”).

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

decision is so devoid of evidentiary support that it can only be explained as an arbitrary

and capricious exercise of authority”).

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

custodian must properly perform his or her balancing role”).

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

CCJRA. See Harris at 1171.

DEFENDANT’S DECISION TO DENY PLAINTIFF MEANINGFUL ACCESS TO THE REQUESTED

RECORDS CONSTITUTES AN ABUSE OF DISCRETION.

60. An examination of Defendant’s communications with Plaintiff and/or her counsel

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

public interest, Defendant relies on two vague and unsubstantiated assertions.1

1
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

served by releasing such images.” See Exhibit 2.

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

the public interest is wholly without merit.

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

subject to legitimate public scrutiny.”); Fisher Broadcasting-Seattle LLC v. City of

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

process whose main purpose is to inspire public confidence”).

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,

COLORADAN (July 19, 2017),

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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

person has exhibited actual subjective expectation of privacy […]”).

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

records was not reasonably supported by any competent evidence or well-thought-out

rationale, it becomes evident that Defendant’s decision to deny Plaintiff’s record requests

were improper, as well as arbitrary and capricious.

CLAIMS FOR RELIEF

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

Complaint and Application as if fully set forth herein.

72. The records requested by Ms. Holmes and her counsel are “criminal justice records,” as

defined by the CCJRA. C.R.S. § 24-72-304(4).

73. Defendant has refused to provide reasonable access to the criminal justice records

pursuant to Plaintiff’s requests.

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

Plaintiff’s ability to enforce her legal rights.

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;

Colo 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

officers involved in her son’s death is warranted under existing law.

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

Colorado Supreme Court in Harris, and by failing to provide a sufficient explanation

17
 and/or adequate evidence to support its contention that the requested documents should

not be produced.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Susan Holmes, pursuant to C.R.S. § 24-72-305(7), respectfully requests

that this Court enter judgement in her favor and against Defendant, and award her all relief

allowed by law and equity, including but not limited to following:

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

copy of the requested records;

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

of Plaintiff’s record requests;

C. The Court enter an Order directing Defendant to pay Plaintiff’s court costs and

reasonable attorney’s fees, as provided by C.R.S. § 24-72-305(9); and

D. The Court award any other and further relief that it deems just and proper.

Respectfully submitted this 8th day of December, 2018.

LAW OFFICE OF JULIAN G.G. WOLFSON, LLC

s/ Julian G.G. Wolfson

Julian G.G. Wolfson #50603
1630 Welton Street #727
Denver, CO 80202
Phone: (720) 507-5133
Email: jwolfsonlaw@gmail.com

Counsel for Plaintiff

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