Perjury is a rare charge in Colorado — and it's rarer still when someone accused of the offense is placed on a most-wanted list. But that's what happened to Larimer County's Susan Holmes — and her early 2020 arrest, captured live on a web cam, was executed by a group of body-armored law enforcement officers packing automatic weapons despite the fact that she had no criminal record. Now she's fighting back with a motion to dismiss the charge, claiming, among other things, that pursuing the perjury beef is a violation of her right to free speech.
According to attorney Jonathan Greenlee, who represents Holmes and filed that motion prior to a July 28 court appearance, "This prosecution comes down to who Ms. Holmes is and what she's been involved in, and not so much that this is truly perjury."
As Greenlee suggests, context is important. In January, Holmes managed to offend both supporters and detractors of Colorado's then-new red flag law, which creates a framework for temporarily taking guns away from those considered a danger to themselves and others, when she used it against Phil Morris, the Colorado State University Police corporal who fatally shot her nineteen-year-old son, Jeremy Holmes, near the university's campus on July 1, 2017.
Two and a half years later, on a form officially known as an Extreme Risk Protection Order, or ERPO, Holmes maintained that she and Morris had a "child in common." That child was Jeremy, whom Holmes bore and raised and the officer killed.
This wasn't the first time since Jeremy's death that Holmes had challenged the powers-that-be. She was very public in her criticism of CSU and other law enforcement agencies over their refusal to release all body-camera footage related to the shooting, even pressing an ultimately unsuccessful lawsuit over the issue. Among the officials to castigate her was Larimer County Sheriff Justin Smith, who dubbed her ERPO a fraud on his Facebook page. Smith's office subsequently issued an arrest warrant for Holmes and executed the bust, during which Holmes says she was treated roughly. In an early February email interview with Westword , she wrote, "I'm in bad shape right now. The sheriff department intentionally withheld proper medical treatment for my injuries for the whole time I was imprisoned."
Her attorney's motion to dismiss the perjury charges argues that "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. 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."
The document continues: "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."
As Greenlee sees it, Holmes's decision to check the "child in common" box on the ERPO form was an example of her being "artful with an ambiguous phrase" in a way common to people without legal training — and judges typically respond by rejecting the petition, as the one in this case did. But instead of letting the matter end there, authorities came after Holmes for perjury, a charge that Greenlee's research shows was last successfully prosecuted by Larimer County in the year 2000 — "and it's exceedingly unusual to see just one conviction per twenty years."
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Greenlee doesn't directly assert that Larimer County is seeking political retribution against Holmes. "I never know another person's heart, and I always want to be very careful about attributing intentions to other people," he says. "But where there's smoke, there's fire...and there's certainly context that could create that mental perception."
The charge "has unquestionably made Ms. Holmes afraid to speak out," he adds. "I think if anybody spends the night in jail, that's going to be a factor into their consideration of how they're going to participate in the political process moving forward."
At a court appearance yesterday, July 28, a status hearing was set for August 25. Between now and then, Larimer County will be able to submit a response to the dismissal motion, and Greenlee hopes cooler heads will prevail. "A perjury prosecution is not really meant to be the primary tool that one would use in these situations," he stresses. "Usually, the petition is denied and the case is closed. But here, I think we have a situation where the response was, in my mind, very disproportionate. And that's where I feel Ms. Holmes's political actions involving her son motivated this stronger reaction against her."