A federal judge vented his frustration on Monday with El Paso County leaders, criticizing their lackluster approach to a key gun safety law while acknowledging he was obligated to dismiss the claims against them brought by survivors of an LGBTQ nightclub shooting.

“Plaintiffs can take some slim solace in the fact that, while the individual county commissioners and Sheriff (Bill) Elder are via this Order escaping legal liability for their inaction and omissions,” wrote Senior Judge William J. Martínez, “their collective role in refusing to at least try to thwart what most likely was a horrific but preventable tragedy should weigh heavily on their individual consciences, and most certainly will not be forgotten by the people of Colorado.”

Martínez’s July 7 order dismissing the constitutional rights claims against Elder and the board of county commissioners followed his related decision earlier this month to also dismiss claims against the property owners for Club Q in Colorado Springs. The club was the site of a November 2022 massacre, in which Anderson Aldrich murdered five people and injured more than two dozen others. As a result, Aldrich is serving multiple life sentences in prison.

Several plaintiffs — including surviving representatives of the deceased and those who suffered injuries — sued the county, the then-sheriff, and those responsible for Club Q. In his recent orders, Martínez displayed unusual angst in explaining his inability under the law to hold certain defendants liable for their roles in increasing the danger to Club Q patrons.

Previously, in his decision addressing the property owners, Martínez blasted legislators for changing the law months before the shooting to make it harder for victims to hold land owners responsible for alleged security deficiencies on their premises.

“The Court shares Plaintiffs’ concerns and bristles at the idea that utterly foreseeable mass shootings can continue to occur with little to no civil recourse for victims. By closing the courthouse doors to mass shooting victims,” he wrote on July 1, “the General Assembly has essentially given landowners carte blanche to implement zero safety precautions against obvious — or even known — threats of violence by deranged individuals.”

In the latest order, Martínez addressed a motion to dismiss by Elder and the county board. The plaintiffs’ allegations revolved around those defendants’ response to Colorado’s 2019 “red flag” law. The Democratic-backed measure permitted certain parties, including law enforcement, to petition in state court to temporarily remove firearms from someone who is a danger to themselves or others.

County commissioners adopted a resolution committing to “actively resist the bill” and Elder issued guidance saying his office would only petition for a red flag order under “exigent circumstances” and where “probable cause can be established.”

The plaintiffs in the Club Q lawsuit alleged those actions violated their constitutional right to due process by creating the danger that Aldrich would commit the shooting. Specifically, the defendants failed to seek a red flag order even though Aldrich previously created a bomb, threatened to kill his grandparents with a firearm and caused a SWAT standoff at his home. The criminal case wound up being dismissed and sealed after prosecutors had difficulty moving it forward.

“You clearly have been planning for something else,” said District Court Judge Robin Chittum to Aldrich at a 2021 hearing.

“In effect, through their affirmative acts, El Paso County officials created a closed circuit of inaction — refusing to act themselves while simultaneously ensuring that others lacked the information necessary to do so — functionally insulating Aldrich from the very protective mechanisms the State had enacted to prevent precisely this kind of tragedy,” argued the plaintiffs’ lawyers.

The county defendants countered that holding them liable under the theory that they created a danger required there to be “affirmative action.” They pointed to the U.S. Supreme Court’s 1989 decision of DeShaney v. Winnebago County Department of Social Services, which held that the government’s “failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”

“Aldrich is directly responsible for creating the harm that befell Plaintiff, not the El Paso County Defendants,” wrote the El Paso County Attorney’s Office.

It noted the defendants’ reaction to the red flag law occurred long before the Club Q shooting and, moreover, fell “squarely within the purview of the BoCC and Elder and should not be second guessed by this Court.”

Martínez agreed the plaintiffs had argued the defendants failed to act. They did not undertake “affirmative conduct” to create a danger of a mass shooting — the risk of which “existed all along.” He further noted the red flag law itself only permits law enforcement to petition for the removal of firearms, but does not require it.

However, he directly criticized the defendants for allegedly knowing Aldrich was a danger and ignoring the state-sanctioned path to stop Aldrich from re-acquiring firearms.

“Defendants defiantly did nothing, contemptuously ignoring the will of the people, and refused to avail themselves of the critical tool the legislature had just equipped them with — the tool that might have prevented the monstrous and bloody act,” Martínez wrote. “To be sure, these allegations amount to much more than mere negligence — they represent a conscious and intentional disregard of a known and unjustifiable risk, something which in the Court’s view amounts to an abdication of local officials’ moral responsibility to protect the public.”

The case is Vance et al. v. El Paso County Board of County Commissioners et al.