Will the Colorado gay club shooting be prosecuted as a hate crime?

Colorado’s LGBTQ+ communities are waiting with fearful and angry anticipation as evidence against the suspected Club Q shooter accused of killing five people and wounding 17 more is being gathered by local police and reviewed by prosecutors.

Related: Colorado Springs shooting suspect to make first court appearance

Online court records show Anderson Aldrich, who has identified in legal papers as nonbinary, is facing five murder charges and five charges of committing a bias-motivated crime, as investigations into the circumstances of the shooting – and what motivated it – continue.

But advocates for the state’s LGBTQ+ community have little doubt, even though the laws surrounding bias crimes in Colorado are complicated and are the focus of some complaints by the groups they are designed to protect.

“A hate crime is what this is,” said April Owen, director at the Transgender Center of the Rockies, a community center that provides therapy, case management and support to nonbinary and transgender Coloradans. Owen said it would be a disservice if the shooting is not called a hate crime.

Deputy district attorney Bilal Aziz chairs the bias-motivated crime group in the Denver district attorney’s office. The group consults with police on investigatory efforts into possible hate crimes, explains why certain cases don’t qualify for that filing, and accepts or rejects bias cases based on the state’s bias-motivated crime statute.

Colorado’s law changed last year, Aziz said, to include whether a suspect’s bias was the whole reason or part of the reason they committed a crime. “If part of the motivation is a bias motivation, then we still have a viable charge,” he said.

Prior to the law change, prosecutors found that jurors would cite mixed motives on a crime, such as getting into an argument over a parking spot and using a racial slur, and be less willing to convict a bias-motivated crime. “Juries don’t like to believe these things happen,” Aziz said.

When investigating potential bias-motivated crimes, prosecutors actively seek people who know the suspect and ask others to come forward about the suspect’s history of behavior. Prior conduct is the linchpin for whether or not prosecutors can convince a jury that a suspect’s crime was motivated by hate and, in effect, involved targeting a particular group.

When intent is built into statute, Aziz said, it forces prosecutors to prove two crimes: assault and what’s inside someone’s head. But it’s not as straightforward in Colorado as many members of the public might think, as a bias crime is treated separately to the actual crime.

“There’s a common misconception people have that bias motivation is going to enhance a more lenient sentence. It’s actually a separate crime. The current state of Colorado law has not caught up with the notion of a mass casualty event or even really serious assault,” Aziz said.

If a suspect shoots someone and the victim is badly injured, the charge would be first- or second-degree assault, Aziz said. A conviction on that charge is 10 to 32 years with mandatory prison time. However, if there is a bias-motivation enhancement, another class 5 felony is tacked on as well. It’s not enhancing the punishment for more serious misconduct; rather, Aziz clarified: “It’s just a separate crime.”

Despite the law not enhancing a murder charge, prosecutors still use the hate crime statute in Colorado in an effort to facilitate a better relationship between marginalized communities and the police.

“Even with a serious charge like homicide or aggravated assault, the virtue in including a bias-motivated crime is a way to signal to communities that we are taking these charges seriously,” Aziz said.

How police and prosecutors are responding is on the minds of many LGBTQ+ Coloradans, as is their own basic safety. “People are shaken up,” said Owen. “They don’t know where they can go or what they can do if they need to have protection to disarm an active shooter. There’s a lot of fear, there’s a lot of anger, there’s a lot of sadness.”

Owen says the state’s LGBTQ+ community is exhibiting the gamut of fear-based reactions, from hiding and protecting themselves to being outspoken and trying to protect others in the community. Even those who are simply trying to carry on are affected. “It’s in the back of their mind,” she said. “They’re more on edge. It’s a pervasive worry that impacts people more than they know.”

“Our employees that work at the center are largely queer-identified and trans- and nonbinary-identified. There’s fear that something [like] that could happen in the workplace,” Owen added.

Owen moved to Colorado, a state with a progressive reputation, from the consistently red Texas earlier this year. “Coming from Texas, I thought it was going to feel a lot better,” Owen said.

Jeremy Shaver, senior associate director for the Anti-Defamation League’s mountain states region, works with Hate Free Colorado, an organization that surveyed Colorado’s hate crimes in the late spring and early summer. According to the survey, four in 10 LGTBQ+ Coloradans over 18 say they have experienced a hate crime or bias-related incident in the last five years.

Hate Free Colorado also found people with multiple marginalized identities had a significantly greater likelihood of experiencing hate crimes. Six out of 10 LGBTQ+ Coloradans of color reported experiencing a bias-motivated incident or hate crime.

All in all, Shaver said, based on current population estimates and Hate Free Colorado data, hate crimes may have affected approximately 80,000 people in the state. “The real takeaway message is we didn’t feel like we had real reliable data happening in Colorado,” Shaver said. “When we see that 80,000 people have experienced a hate crime or bias-related incident, we know the vast majority [of those crimes] are going unreported.”

The challenge, Shaver explained, is that the communities most targeted with hate crimes are those that have the lowest level of trust in law enforcement for a variety of reasons. As a result, Hate Free Colorado is trying to find ways in which it can build bridges between affected communities and law enforcement.

LGBTQ+ advocates are quick to point out that, while it’s easy to get caught up in statistics about hate crimes in light of the Colorado Springs shooting, it’s necessary to recognize the people who were killed and the communities that were affected by the attack.

Anna Miller, the director of business development and public relations at Mile High Behavioral Healthcare, said: “These are sons and daughters and family members of a much larger community. This community goes a lot farther than Colorado Springs. Now’s the time for change, and if we don’t start something now, this pain is just going to continue.”