“It’s a stretch,” Club Q victims’ families intend to sue the sheriff’s office, but do they have a case?

COLORADO SPRINGS, Colo. (KRDO) -- Multiple family members of victims of the Club Q tragedy have filed notice of claim, intent to sue documents with the El Paso County Sheriff's Office. They claim that former Sheriff Bill Elder has refused to file red flag orders, legally known as extreme risk protection orders, under any circumstances.

These orders, filed by law enforcement or family members to a judge, are meant to take guns away from someone who may be a threat to themselves or others. These petitions are not criminal, but rather a function of our civil court system.

In the case against Anderson Aldrich, who's accused of murdering five people at the LGBTQ nightclub last November, the El Paso County Sheriff's Office did not ask the courts for a red flag order, but did they need one?

We know that Aldrich has a criminal past and was arrested in June 2021 after guns and bomb-making materials were found at a home in the Lorson Ranch Neighborhood. Aldrich is also accused of saying, "wanted to be the next mass killer" and was willing to "go out in a blaze," according to unsealed arrest records.

However, as soon as Aldrich was arrested and charged, a mandatory protection order was in place that barred Aldrich from legally possessing guns of any kind. That order was in place until the case was dismissed by a judge over a year later on July 5, 2022. The case was dismissed because the named victims in the prior case, Aldrich's mother and grandparents, refused to testify against their family member.

Days after the case was dismissed, all records tied to the case were sealed from public record and former Sheriff Bill Elder claimed his office could not properly present evidence to a judge that would prove that Aldrich was a danger and shouldn't possess guns.

All of these facts considered, Elder has stated that a red flag order wouldn't have had any impact on Aldrich's ability to possess guns in violations of any type of law. Tuesday, 13 Investigates spoke with Colorado Springs defense attorney Jeremy Loew who outlined the potential pitfalls of both sides of this potential lawsuit.

"When I saw the initial claims, I was really surprised. It kind of goes two ways. One, there's a lot of really high profile big firms associated with this potential lawsuit," Loew said. "They must be grounded in some kind of belief that there is a recovery against Sheriff Elder and the sheriff's office, even though Sheriff Elder is no longer there, for not imposing or pursuing a red flag law protection."

Loew says despite any belief that Elder and the sheriff's office have a responsibility to ask for red flag orders, it is virtually impossible to sift through the mass amount of criminal cases that are filed in the 4th Judicial District, and then predict who is a perceived danger.

"It's an unfair burden to place upon the sheriff's office to, in every case, review whether or not an extreme risk protection order is necessary," Loew said.

On the other side, Loew believes each individual family has a greater responsibility to file for red flag orders. He argues they likely know more intimate details of someone's life than a law enforcement agency could ever know. In Aldrich's case, no family members took steps to restrict access to firearms.

"The family should've had an obligation to say, 'we have concerns about this individual,' or we have mental health concerns. He's made threats to us. There's bomb-making material. We believe he's a threat to the community. They also have the power to bring extreme risk protection orders and red flag law protections," Loew said.

He calls the intent to sue documents, which are not a formal lawsuit, but allow the parties to reach a potential settlement before litigation, a "stretch." He says this is largely because of the government's broad immunity protections that make these family members prove Elder and the Sheriff's office acted with negligence.

"The issue is Sheriff Elder insinuated that he didn't want to enforce red flag laws and that he wasn't going to be pursuing the red flag laws in the community. That's where a civil suit could come into effect," Loew said.

The El Paso County Sheriff's Office said they could not comment on the notice of claims.