On April 7, Judge Scott Sells agreed with the attorneys representing Sheriff Jason Mikesell, who argued that the plaintiffs suing Mikesell, all of whom were taxpayers in Teller County, lacked standing in court.
"This court ruling allows us to continue to protect the citizens of Teller County and sustain the way of life this community wants; the freedom to live without fear of those illegal criminal organizations that have prayed [sic] upon them in the recent past,” Mikesell says in a statement.
The lawsuit, which was filed in June 2019, asked a judge to rule that an agreement between Mikesell and ICE that authorized Teller County sheriff's deputies to handle some immigration enforcement tasks was illegal in Colorado. The contract between the sheriff and ICE, known as a 287(g) agreement, is the only one of its kind in the state, and trains deputies on how to identify if a person is in the country illegally while in state or local custody. The agreement does not authorize Teller County sheriff's deputies to do immigration enforcement work outside of the confines of the jail.
The ACLU of Colorado, which plans to appeal the judge's ruling, had filed the lawsuit on behalf of Teller County taxpayers, arguing that 287(g) agreements are illegal in Colorado under legislation approved in 2019, and also that tax money shouldn't be expended on enforcing federal immigration law.
"The statute that was enacted says that Colorado law enforcement cannot detain or arrest people without a warrant signed by a judge," says Mark Silverstein, the ACLU of Colorado attorney who went up against the Teller County Sheriff's lawyers in court.
A 2019 bill proposed banning local law enforcement agencies from holding on to detainees who would normally be released solely on the basis of a request from ICE to hold them on civil immigration charges until ICE could pick them up. The original version had a specific provision that banned 287(g) agreements, but pressure from the office of Governor Jared Polis led to this section being removed from the bill before it became law.
But that shouldn't affect the case, Silverstein says: "The fact that legislation contains some other provisions that were not enacted does not undermine the portions of the statute that were adopted and signed by the governor."
Local ICE officials, who sharply criticized that 2019 bill, welcomed the dismissal of the lawsuit.
“Enforcing our nation’s immigration laws requires cooperation between federal and local law enforcement officials. We’re pleased with the court’s decision to allow ICE and the Teller County Sheriff’s office to work together in the interest of public safety and look forward to the joint cooperation the ruling now allows," John Fabbricatore, the acting Denver field office director for ICE Enforcement and Removal Operations, says in a statement.
In court, Teller County lawyers highlighted the fact that, since 1997, the Teller County Jail has been operated by an enterprise fund, a separate government entity that gets its money from "fees" and not "taxes." The county, along with other local and federal law enforcement agencies, pays the Teller County Jail Enterprise Fund fees for the jail to house inmates, and no taxpayer money is directly allocated to the enterprise fund, the judge concluded, determining that as county taxpayers, the plaintiffs lacked standing.
"We're disappointed in the ruling because essentially [the judge] is saying no one has standing to challenge the sheriff when he’s blatantly violating the Colorado statute passed last year, as well as the Colorado Constitution," says Silverstein, adding that he's confident the decision will be reversed by the Colorado Court of Appeals.
And at that point, the legal battle will return to the other arguments in the original lawsuit.
This isn't the first time that the ACLU of Colorado has sued Sheriff Mikesell. In July 2018, Silverstein sued the sheriff over his practice of holding on to detainees for ICE past the time that they'd normally be released. But after Mikesell signed the 287(g) agreement with ICE, the ACLU of Colorado and lawyers representing the sheriff both agreed to that suit being dismissed.