Attorneys looking to squeeze a Colorado county out of millions of dollars in a quick settlement over yet another high-profile, threatened and specious lawsuit against a law enforcement agency have shown up in El Paso County. At first blush, the claims appear to be unprecedented, contrary to our statutes and case law, and frivolous.

Let me be clear: the innocent victims of the Club Q massacre deserve justice. These lawsuits are not about justice or affixing accountability on the evil wrongdoer who came to Club Q to murder them.

These lawsuits are about money for lawyers. Their websites boast of the millions of dollars they have recovered suing individuals and entities. Given customary attorney’s fees – one-third to 40% of the ultimate settlement amount (after deducting expenses) – these lawyers’ $20 million claims would net them $7 million or more. That is more than double what I earned over my entire career as a prosecutor. As I re-read that, I suddenly find myself questioning my vocational choices.

The lawsuits against the El Paso County sheriff claim his failure to seek an extreme protection order (ERPO) against the Club Q shooter after a 2021 standoff with deputies allowed the killer to obtain the weapons he used to commit mass murder. It is nonsense. Nonsense.

A lawsuit must fail when it’s predicated on the claim the sheriff’s failure to fulfill a duty caused certain damages. Here, the sheriff had no duty to seek a red flag order, and his decision not to seek one did not allow the killer to arm himself.

Colorado’s red flag law permits the sheriff (and others) to file a petition seeking an ERPO. It does not create an obligation. The very first sentence of the statute states a law enforcement officer “may request” an ERPO. That is the language of discretion, not duty. Moreover, there is crystal-clear language in the red flag law that it “does not impose civil… liability for acts or omissions made in good faith related to obtaining (an ERPO)… including… declining to file a petition (seeking an ERPO).” I am just a simple caveman lawyer who barely reads English, but that statutory language seems super on point.

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Another thing that seems on point is the holding in Castle Rock v. Gonzales (2005), in which the U.S. Supreme Court ruled against a plaintiff who sued the police department for failing to enforce an active protection order against the murderer of her children, despite the language of the order to law enforcement that they “shall enforce” it. Again, simple Rocky Mountain lawyer here, but if law enforcement is not liable for failing to enforce a protection order they are ordered to enforce, what possible argument could succeed in court that they should be liable for failing to seek a protection order they have the discretion not to seek?

Even if the rich lawyers can magic their way out of the statute and the case law, there is the issue of “causation.” Even had an ERPO been sought immediately after the standoff arrest, it would have made no difference to the killer obtaining the weapons he used at Club Q.

Remember, the sheriff seized all the killer’s weapons after the 2021 standoff. Despite the judge’s dismissal of the case against the future murderer on mere procedural grounds, the sheriff refused to return the guns to the evil doer. Additionally, after the killer’s arrest, the judge imposed a bond and a protection order against him – each of which would have been entered into the same database an ERPO would have been. Those orders disappeared when the judge dumped the case.

Also, the murderer’s unserialized firearms were not obtained from someone who ran a background check on him. That is the great weakness of our ERPO law; the existence of an ERPO on that unsearched database is irrelevant.

So, why the lawsuit? Money. Ours.

The out-of-town personal injury lawyers pushing these unprecedented and unsupportable claims include a firm from crime-ridden Chicago. It is unclear from that firm’s Windy/Murder City website if they have pursued similar claims for inaction against the Chicago PD, mayor or any other city officials for inactions leading to 695 murders in 2022 alone.

Here is how you know it is about money.

They will not sue the killer himself, even if he is the one who went outside of the law to obtain weapons in order to put his murderous plan in motion, because he has no money for the attorneys to recover.

They will not sue the murderer’s mother despite her role in failing to seek a red flag order against her killer son. Under our red flag law, she had the same ability to seek an ERPO as the sheriff. But she did not. And yet, no money for the attorneys means no lawsuit.

They will not sue the judge, who – as a matter of discretion, not legal compulsion – dismissed the case against the mass murderer, which resulted in the evaporation of all bond conditions and protection order, because the judge enjoys immunity from civil suits for all of his decisions, good and bad. No money can come from there.

That leaves the sheriff and El Paso County’s coffers. That is where the money is, so that is where the lawsuit is targeted.

If the attorneys are all working pro bono on behalf of the innocent victims, I will return to these pages to make a full apology. My Spidey-sense tells me I will be using that future column space to write about the judge granting a motion for summary judgment against the lawyers.

Do not be surprised if they try to flee to federal court in Denver or some other county where they will not face a jury of El Paso County taxpayers.

This is a lawsuit worth fighting to the end, wherever the fight takes place. The Club Q victims deserve justice. The lawyers deserve nothing.

George Brauchler is the former district attorney for the 18th Judicial District. He also is an?Owens Early Criminal Justice Fellow at the Common Sense Institute and?president of the Advance Colorado Academy, which identifies, trains and connects conservative leaders in Colorado. He hosts The George Brauchler Show on 710KNUS Monday through Friday from 6 a.m. to 10 a.m. Follow him on Twitter: @GeorgeBrauchler.