It is time for a thorough investigation into the inadequate response by El Paso County Sheriff Bill Elder and the El Paso district attorney to the circumstances of the alleged Club Q murderer during a previous confrontation with law enforcement in El Paso County.

In 2021, the El Paso County Sheriff’s Office arrested the accused mass murderer after he allegedly threatened to detonate a bomb and kill his grandparents and talked about becoming “the next mass killer.” Authorities confiscated guns and bomb-making materials at the time.

On Nov. 19 of this year, the suspect in that incident appears to have followed through on his intention to become “the next mass killer,” allegedly by murdering five individuals and wounding numerous others at Club Q in Colorado Springs.

We now know more about the lack of urgency with which Elder and the DA responded to the seriousness of the threat. Both have tried to minimize the impact of their cavalier attitudes. There is nothing to suggest the killer would not have accomplished the same result had Elder and the DA been more vigilant, but they must be held accountable for their feeble responses.

Elder claims he did all that was necessary because, upon the killer’s arrest, the weapons and bomb materials were confiscated by his office pursuant to a mandatory protection order (MPO). An MPO is issued against every criminal defendant when charged. He asserts requesting an extreme risk protection order (ERPO), which he was authorized to pursue, would have been redundant because it is similar to an ERPO. Elder is wrong. Keep in mind Elder’s resistance to the “red flag” law was because he chose to believe, without legal authority, the law is unconstitutional. The law, in fact, never has been declared unconstitutional.

The ERPO process is a civil matter, as opposed to a criminal matter, that allows law enforcement to petition the court to confiscate firearms from an individual who possesses firearms and presents a serious risk of causing personal injury to others. The order also prohibits the individual from further purchases of firearms. The order can remain in effect for up to one year whereas an MPO expires once the defendant is no longer under the jurisdiction of the court.

Elder did the bare minimum to protect others from the killer when he had additional resources at his disposal to do so. He should not be allowed to mitigate his exposure through his statement that journalists hadn’t waited for the “true” story and that politicians had shared unfounded and ignorant opinions. The facts speak for themselves.

The El Paso County district attorney similarly finds himself attempting to reconcile his failed prosecution by submitting he had no choice but to dismiss the case against the killer because of uncooperative witnesses. Anyone involved in criminal prosecutions is fully aware that prosecutors are often required to proceed with witnesses who are not cooperative. In this case some of the witnesses relocated to another state and were making it difficult for the DA to subpoena them.

This is not an issue that would be new to prosecutors. There is an accepted procedure for enlisting the help of the court in another state to secure the appearance of a witness found in that state including arresting and holding them in custody if they resist. The requesting state is responsible for all the costs associated with returning the witness to the state to testify.

What is extremely alarming is that the record suggests the DA never requested the assistance of the local court in pursuing the issuance of subpoenas. Had the DA made a compelling showing that he was doing everything possible to secure the witnesses, the court may have issued orders providing for the preservation of the witnesses’ testimony. Such did not appear to be the case here and the question must be asked “why not?”

Nothing can undo the tragic events of Nov. 19, 2022, but certain lessons must and should be learned. First, law enforcement officials should respect the rule of law and their oath to support and uphold the laws and constitutions of the state of Colorado and the United States. They should leave to the courts the determination whether a law is unconstitutional.

Next, they should use all the tools available to protect the public by understanding the nuances between criminal and civil proceedings.

Finally, prosecutors must use every available resource and procedure to ensure that justice is delivered with respect to all involved. Plain and simple the El Paso County district attorney was woefully negligent in handling the earlier case of the “next mass killer.”

Dennis Maes served 24 years as a 10th Judicial District judge in Pueblo and was chief judge for 17 of those years. He previously served as director of Pueblo County Legal Services, Inc.; as a public defender and as an attorney in private practice.