How the El Paso County District Attorney can keep arrest affidavit for Club Q suspect secret
Nov. 22—The ability to take away a person's freedom is one of the most serious powers held by a government. An arrest affidavit is a key document explaining to a judge — and the public — a law enforcement agency's rationale for doing so.
But an open records law in Colorado allows agencies broad discretion to withhold criminal justice records, and it's not uncommon for them to keep affidavits sealed in high-profile cases by citing an "ongoing investigation," at least until prosecutors charge a suspect.
The practice continued this week in the case of Anderson Lee Aldrich, the 22-year-old arrested on suspicion of killing five people and shooting 17 others in Club Q, a Colorado Springs LGBTQ+ club, late Saturday night.
On Monday, a magistrate in El Paso County District Court granted a request by prosecutors to seal the arrest warrant and related documents, including the affidavit, for Aldrich. Deputy District Attorney Brent Nelson cited the ongoing investigation in the filing.
Key questions remain unanswered about relevant information surrounding the shooting, including the actions of two people who reportedly subdued the suspected gunman, the shooter's motive, and a June 2021 bomb threat by a man also identified as Anderson Aldrich for which he was arrested but not charged.
The district attorney's office may release the arrest affidavit for Aldrich after formal charges. Following the mass shooting at a King Soopers in March 2021, the Boulder County District Attorney's Office released the affidavit for the suspect shortly after filing charges, which revealed among other details he had bought a gun used in the attack just days earlier.
"It's important for society and our criminal justice system for the public to understand why somebody was arrested," said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.
The case of Robert Dear, the man accused of killing three people and injuring nine others in 2015 at a Colorado Springs Planned Parenthood, is another high-profile instance of limiting access to probable cause affidavits.
Affidavits containing information about Dear's arrest, the search of his home and his charges remained sealed for months until a district court judge reversed course. Judge Gilbert Martinez ordered the records unsealed since Dear had given interviews to reporters, admitted guilt in court and another person involved in the case discussed the shooting on TV.
"The posture of the proceedings today is significantly different from the court's previous denial of the motion to unseal," Martinez wrote in his ruling.
The Colorado Criminal Justice Records Act gives agencies broad discretion to withhold criminal justice records if they find their release would be "contrary to the public interest," a determination that requires them to weigh several factors when deciding to whether releasing records would be contrary to the public interest, including the agencies' interest in pursuing ongoing investigations or prosecutors not wanting to taint a potential jury pool. The CCJRA is different from Colorado's Open Records Act, the state's broader law for accessing government records.
The other factors agencies have to weigh are the public interest served in releasing the records in question, the agency's interest in keeping them confidential, privacy interest and any other relevant considerations.
A Colorado Supreme Court case called Harris v. Denver Post Corporation established this balancing test. The case concerned the release of audio and video recordings made by the Columbine High School gunman detailing their plans for their 1999 attack. The Supreme Court ruled the recordings were criminal justice records subject to the CCJRA, and set forth the combination of public and private interests agencies have to consider when choosing to withhold records under the law.
The CCJRA also gives courts limited ability to review a denial of records under the law. A court can only review the decision for "abuse of discretion," meaning it can only look at whether the agency properly applied the balancing test.
A legislative change establishing a time limit on how long agencies can withhold some records such as arrest affidavits could help make sure they aren't keeping them secret indefinitely, Roberts said.
"What I always tell journalists on this is, 'Keep asking,'" Roberts said. "Keep fighting for the public interest."
