Editor’s note: In a written statement, the El Paso County Board of County Commissioners said it “welcomes” the U.S. 10th Circuit Court of Appeals’ decision, adding that the victims and the community “remain in our hearts and prayers.”

A federal appeals court did not agree that El Paso County officials’ failure to enforce Colorado’s red flag law against the Club Q shooter fostered a “state-created danger” and dismissed a lawsuit filed by some of the victims.

Attorneys from Chicago-based law firm Romanucci & Blandin said there were clear warning signs that Anderson Aldrich would carry out a mass-casualty event, documenting, among other things, a 911 call with Aldrich’s grandmother, who told dispatch of the shooter’s aspiration to be “the next mass killer” in the months leading up to the November 2022 shooting.

The firm was hired in November 2024 to pursue a federal complaint against the county’s commissioners and former Sheriff Bill Elder to argue that local authorities ignored the warning signs, thus creating a danger to the community.

Attorneys made final arguments to the U.S. 10th Circuit Court of Appeals in Denver in May after federal Judge William J. Martínez dismissed the claims in July 2025. Martinez said there was no evidence that county officials created or enhanced a state of danger.

The 10th Circuit upheld the dismissal in a 52-page opinion published Wednesday. It added that law enforcement has the discretion to decide if it will request an Emergency Risk Protection Order (ERPO). The order allows temporary confiscation of firearms from people determined to be an “extreme risk” to themselves or others.

A judge must sign off on the petition. The first order lasts 14 days, but petitioners can request a second hearing to extend it to 364 days.

ERPOs come from a 2019 law that county commissioners unanimously opposed through a resolution that states that “El Paso County is a Second Amendment preservation county” and that the commissioners will not “appropriate funds, resources, employees or agencies” for any ERPO-related proceedings.

At the time, Elder said deputies would not petition for an ERPO unless they could establish probable cause and find that “exigent circumstances” existed. That is a stricter standard than what’s required by the law, which focuses on the possibility of violence instead of whether a crime has been committed.

In a written statement, the county commissioner board said it “welcomes” the circuit’s decision, adding that the victims and the community “remain in our hearts and prayers.”

The board of commissioners declined to answer if it still stands by the 2019 resolution.

The 10th Circuit ruled that the county’s inaction wasn’t affirmative — a requirement needed to pursue the state-created danger theory.

“We agree that the County Defendants’ adopting and maintaining the ERPO policies was more than ‘mere negligence or inaction’ … Still, to satisfy the affirmative-conduct precondition, the state actor’s conduct must ‘impose an immediate threat of harm,’” the court wrote in the appeal. “Not only that, the threat must be ‘directed at a discrete plaintiff (rather than the public at large).’”

The court added that county officials have created an “indefinite risk” of increased gun violence within El Paso County.

“We are deeply disappointed. Our clients are survivors of a massacre and the families of Raymond Green, Kelly Loving and Derrick Rump. They came to court asking a simple question: whether those who had the power to prevent this tragedy bore any responsibility for it. That question will now go unanswered,” a Romanucci & Blandin spokesperson said in a written statement sent to The Gazette.

The statement said the law firm is evaluating “all available options” with its clients regarding next steps.

County officials’ inaction was ‘deeply troubling,’ judge says

Aldrich had given county law enforcement good reason to seek an ERPO, according to the plaintiffs.

Romanucci & Blandin attorneys pointed to a now-dismissed and sealed case pertaining to a June 2021 incident when Aldrich allegedly held their grandparents at gunpoint, threatened to kill them and showed them a homemade bomb. The grandparents escaped, leading to the 911 call where the grandmother states Aldrich was “planning for something.”

Court documents show that Aldrich was stockpiling ammunition, firearms and bulletproof body armor at the time.

Months later, Aldrich opened fire at Club Q, killing five people and injuring 25 others.

While he determined the lawsuit didn’t meet the legal burden necessary for its claims, Martínez in his ruling last year said the county’s inaction to enforce the red flag law was “profoundly and deeply troubling,” adding that county officials knew of Aldrich’s about this information but failed to act upon it.

Last updated in April 2025, the Sheriff’s Office policy on ERPOs states that deputies are “dedicated to protecting the community from potential dangers posed by individuals with severe mental illness who have access to firearms and display behavior that raises public safety concerns.”

It also says deputies will “respect and protect” people’s constitutional rights, including the right to be free from “unreasonable” search and seizure. It does not specify what is considered unreasonable.

The Sheriff’s Office did not respond to The Gazette’s question regarding how many ERPOs it has filed.

Appeals court also dismisses allegations against Club Q owner

Also caught up in the lawsuit was Club Q owner Matthew Haynes.

The lawsuit alleged that Club Q was negligent in its security planning, staffing, training and emergency response despite knowing risks faced by LGBTQ+ venues. Instead, the suit claimed the club “drastically” reduced its security staffing and failed to implement basic safety protocols.

Martínez reluctantly dismissed the plaintiffs’ property owner liability claim, adding that the claim was doomed from the beginning because of a 2022 amendment that slammed the door on holding property owners liable in mass shootings.

The dismissal was upheld by the 10th Circuit, which also dismissed the wrongful death and negligence claims against Haynes, saying the Colorado Premises Liability Act provides “exclusive remedy” for the plaintiffs’ alleged injuries from Club Q’s safety and security conditions.

“Today’s decision confirms what we have said from the beginning: Club Q was not responsible for this horrific, premeditated mass shooting. The shooter was,” Haynes’ attorney Michael Kuhn of Colorado Springs-based KLCS Law said in a written statement.