13 Investigates: How alleged Club Q shooters “non-binary” identity will impact judicial process

COLORADO SPRINGS, Colo. (KRDO) -- In several motions filed by suspected Club Q shooter Anderson Aldrich's defense team Tuesday, they declare that Aldrich is "non-binary" and will be referred to as "they/them." Aldrich is accused of entering the LGBTQ nightclub and killing five people and injuring countless others.

"The one former federal prosecutor that I spoke with, he thought that they might have been introducing that statement as a way to sort of scare the feds away," Colorado defense attorney Shawn Conti said.

The U.S. Attorney's Office for the District of Colorado has given no indication that they are intent on pursuing federal charges in this case. However, they are "reviewing all the facts and viewing all the information that we have," according to U.S. Attorney Cole Finegan.

Conti tells 13 Investigates the U.S. Attorney's Office could be looking into federal hate crime charges or even murder under federal law. That would bring the death penalty into the conversation, something that has been outlawed in Colorado.

Under federal law, a hate crime is defined as "certain crimes committed on the basis of race, color, religion, national origin, sexual orientation, gender, gender identity, or disability."

"The feds may feel that this is an issue of national importance and the punishment under state law may be insignificant to what the punishment may be under federal law," Conti said. "On the other side, some people might say the citizens of Colorado, through their elected representatives, have decided that they no longer want the death penalty."

Wednesday, El Paso County District Attorney Michael Allen was asked if Aldrich's "non-binary" declaration would impact the state proceedings.

"To us, his legal definition in this proceeding is the defendant," Allen said. "I'm looking at evidence. Evidence of what occurred here. That's what we look at when we make filing decisions."

"The way for the prosecution to sort of combat that, that would happen in the courtroom. What they're going to do, they're going to put this guy's life before this shooting under a microscope," Conti said. "Every single text, Facebook post, other sorts of social media post, email statements to friends, family members, they're going to get all of that."

Conti said that investigation could provide them a legal argument to defend against the non-binary declaration as Aldrich's arrest warrant charges already include five counts of "bias-motivated crime."

"He would likely tell other people, perhaps you would even associate with people with like-minded beliefs, that is the sort of evidence that they would present to the jury and say it's obvious that he had malice toward these people," Conti said.

The U.S. Attorney's Office could not comment further on whether or not they would be involved in this case. Nonetheless, Aldrich faces five first-degree murder charges, which carry a life in prison sentence without the possibility of parole.