A state judge in Colorado ruled late Monday that El Paso County Sheriff Bill Elder’s agreement with federal immigration authorities to hold individuals in his custody beyond their release dates violates state law.
State District Court Judge Eric Bentley in Colorado Springs said holding people past their release dates for immigration officials without an order signed by a federal judge constitutes a “warrantless arrest.”
The judge’s new ruling comes about a month after the ACLU of Colorado sued the El Paso County sheriff, saying he was illegally detaining prisoners for ICE under a new arrangement— and four years after a federal judge ruled that holding someone beyond their release date without a warrant is a violation of the Fourth Amendment.
According to the ACLU suit, plaintiffs Saul Cisneros and Rut Chavez have been held in the El Paso jail awaiting trial since November. Cisneros made bail, set at $2,000, shortly after his arrest, but was held on at the request of ICE. Chavez’s wife and pastor have been told that Chavez will not be released on the $1,000 bond set by the El Paso County District Court, also because of an “ICE hold.”
The ACLU argued Elder was “unlawfully imprisoning dozens of individuals for days, weeks, and even months, without any other valid legal authority, solely on the ground that ICE suspects that they are subject to deportation for civil immigration violations.”
Under this arrangement, ICE signs a contract with a local jail, agreeing to pay a daily rate in exchange for the jail housing federal detainees. When ICE is interested in a prisoner, the suit claims, officials fax or email three forms (none of which are signed by a judge) to the jail. Then, at least as Sheriff Elder saw it, the detainee becomes a federal prisoner in ICE custody.
Last month, the ACLU of Colorado’s legal director, Mark Silverstein, said, “When individuals have posted bond or resolved their criminal case, Colorado law requires that Sheriff Elder release them.”
On Monday, the judge sided with the ACLU of Colorado.
“As Sheriff Elder acknowledged through counsel at oral argument, the ICE forms at issue constitute requests from ICE, not commands, and the Sheriff is making a choice when he decides to honor them,” Judge Bentley wrote in his order. “Sheriff Elder also conceded at oral argument that a decision to keep prisoners in custody, who would otherwise be released, constitutes a new arrest.”
Continued detention of a local inmate “at the request of federal immigration authorities beyond when he or she would otherwise be released, constitutes a warrantless arrest,” the judge wrote.
Silverstein, the ACLU of Colorado legal director, says federal immigration authorities are trying to co-opt the limited resources of local sheriff’s departments for what he calls an aggressive deportation agenda.
“But they cannot do so at the expense of individual liberties or Colorado law,” he said in a statement. “When they do, the ACLU will fight them at every turn.”
Responding to the judge’s ruling, Silverstein said it confirms that sheriffs in Colorado do not have the legal authority to enforce federal immigration law and when suspects have posted bond or resolved their criminal case, a sheriff has to release them.
“Colorado sheriffs swear an oath to the Constitution, not to ICE,” he said, adding that state law authorizes sheriffs to “deprive someone of their liberty only when there is probable cause of a crime, not for suspected civil violations of federal immigration law.”
But the ruling is only a preliminary injunction as the lawsuit continues to play out and while it says the sheriff’s policies exceed his legal authority it only applies to the ACLU’s two clients, Cisneros and Chavez. A question moving forward will be how Sheriff Elder continues to deal with ICE and other indivudals in custody in the meantime.
“This order should send a message to the other sheriffs in Colorado who may be thinking of cooperating with ICE in this manner,” says ACLU of Colorado staff attorney Arash Jahanian.
In his ruling, Judge Bentley wrote El Paso County is an outlier in Colorado.
“Sheriff Elder, through counsel, acknowledged at oral argument that El Paso County is one of only two counties in Colorado that currently honor ICE detainer requests (The other is apparently Adams County),”* Judge Bentley wrote. “The fact that El Paso County is willing to take this stand means that ultimately all counties in Colorado will reap the benefit of having the Colorado courts address this issue.” (UPDATE, March 21: Jim Siedlecki, a spokesperson for Adams County, says the county stopped this practice several years ago. Despite the judge’s statement, “Adams County does not honor ICE detainer requests,” Siedlecki says.)
Should the sheriff’s offce appeal, the judge’s new opinion could set up a legal showdown over immigration and policing in a state where a majority of sheriffs do not honor Immigration and Customs Enforcement requests to hold anyone beyond their release date without an order signed by a federal judge.
El Paso County Sheriff’s Office spokeswoman Natalie Sosa said the sheriff had received the judge’s order.
“The sheriff is meeting with the county attorney and the board of county commissioners to determine the next step,” she said.
Kelsey Ray contributed to this story.