In a rare legal maneuver, attorneys for a Colorado State University football player held at gunpoint by a Loveland resident are asking a judge to force prosecutors to file hate crime charges in the case.
The Loveland man, Scott Gudmundsen, faces charges of felony menacing, impersonating a police officer, prohibited use of a firearm and false imprisonment. He is accused of holding the CSU student, Barry Wesley, and another man at gunpoint while the duo were canvassing a neighborhood for a roofing company. Gudmundsen knelt on Wesley’s neck and pushed the gun into the student’s back, according to Gudmundsen’s arrest affidavit.
The motion filed Wednesday argues that the Eighth Judicial District Attorney’s Office should file a bias-motivated crime charge against Gudmundsen, who is white, because of comments he made and his connections to a group called Soldiers of Valhalla Shooting Club. The attorneys also point out that Gudmundsen physically attacked the Black student but not the other roofing company employee, who is white.
“The District Attorney’s refusal to acknowledge and prosecute Gudmundsen’s racial animus is unconscionable,” attorney Qusair Mohamedbhai of law firm Rathod Mohamedbhai wrote in the motion.
The district attorney’s office, which covers Larimer and Jackson counties, declined a request for an interview from The Denver Post but suggested in a written statement there was not enough evidence to support a hate crime charge.
“Ethically, our office cannot file and prosecute criminal charges for which insufficient admissible evidence exists to prove those charges beyond a reasonable doubt in a court of law,” Jodi Lacey, spokeswoman for the Eighth Judicial District Attorney’s Office, said in the statement.
Colorado is one of 46 states with hate crime-statutes, though data show that convictions under the state’s bias motivated crime law are rare.
Wesley’s attorneys are invoking a Colorado law that allows a petitioner to ask a judge to call a prosecutor to court and force them to explain their reasoning for not filing charges if the petitioner believes the prosecutor is not acting fairly. If the judge finds the prosecutor’s reasons “arbitrary or capricious and without reasonable excuse,” the judge can force the prosecutor to file charges or appoint a special prosecutor to do so.
Wesley and the other Premier Roofing Co. employee first encountered Gudmundsen on June 10, when they knocked on his door to see if he was interested in roofing repairs, according to Gudmundsen’s arrest affidavit. Gudmundsen answered the door and screamed at the pair, telling them to get off his property. Gudmundsen followed the two while wearing a gun on his hip and stating “antifa” had been in the neighborhood.
The next morning, Gudmundsen called the company and told a manager that he “did not want antifa or Mexicans or Blacks in my neighborhood,” according to the motion filed Wednesday. Supervisors at the company did not tell Wesley about Gudmundsen’s racist statements but told Wesley that he should avoid Gudmundsen’s street, the motion states.
When the two men returned to the neighborhood for more canvassing, Gudmundsen approached them armed with several guns and wearing protective gear and told them to get on the ground or he would shoot them, the arrest affidavit states.
Gudmundsen then placed his knee on Wesley’s neck and pushed the barrel of his gun into the Wesley’s back and said, “I’m not going to kill you. The police are going to do that for me,” according to the motion.
The June 11 incident happened weeks after a Minneapolis police officer killed George Floyd by placing his knee on Floyd’s neck. The killing of Floyd prompted widespread protests across the country, including in Colorado, and reignited conversations nationwide about racist discrimination against Black people by police.
Wesley’s lawyers have asked prosecutors several times to bring hate crimes in the case, according to the motion. The prosecutors offered several explanations for declining, including that Gudmundsen may have targeted Wesley because of his size, but Wesley’s attorneys said the explanations were insufficient.
“But such an explanation does not account for Gudmundsen’s statement to Mr. Wesley’s employer earlier that morning that he did not want Blacks in his neighborhood; for Gudmundsen’s kneeling on Mr. Wesley’s neck in the same manner by which a Minneapolis police officer had killed George Floyd two weeks prior; for Gudmundsen’s telling Mr. Wesley that the police would kill him at a time when the eyes of the nation were focused on the killing of Black Americans by law enforcement; or for Gudmundsen’s participation in an organization that espouses racial hatred and employs white supremacist language and symbols,” the motion states.
In one video posted to the Soldiers of Valhalla Shooting Club Facebook group, Gudmundsen wore a shirt with a Norse symbol that has been used by white supremacists, the motion states.
The Anti-Defamation League says the symbol, called a Valknot, has been appropriated by white supremacists, though nonracist pagans also use the symbol without a hateful connotation. Ancient Nordic religions and symbols have been widely adopted by white supremacist groups, according to the Southern Poverty Law Center.
Gudmundsen’s family has said Gudmundsen’s actions weren’t racist but instead the result of mental illness. His next scheduled court appearance is on Nov. 5.
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