On May 22, the ACLU of Colorado filed a notice of appeal with the Colorado Court of Appeals regarding Teller County Court Judge Scott Sells's decision to dismiss the lawsuit that the civil-rights organization had originally brought against Sheriff Jason Mikesell in June 2019.
“Under Colorado law, Sheriff Mikesell has no authority to enforce federal immigration law, and the Colorado Legislature has forbidden the sheriff to carry out immigration arrests," says Mark Silverstein, ACLU of Colorado legal director.
The lawsuit challenged Mikesell for allowing his deputies to handle certain immigration enforcement tasks for jail detainees who they think are in the country illegally through what's known as a 287(g) agreement with Immigration and Customs Enforcement. Mikesell is the only sheriff in Colorado to have this type of agreement with ICE.
Judge Sells dismissed the lawsuit on April 7 without getting into the merits of the arguments regarding the legality of the agreement, saying that the plaintiffs in the case, a group of taxpayers in Teller County, lacked standing. The dismissal was based on the fact that the Teller County Jail is operated by an enterprise fund, which is a separate government entity that gets its money from "fees," and not "taxes." No taxpayer money is directly allocated to the enterprise fund, Sells concluded, leading him to determine that the plaintiffs lacked standing.
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Mikesell praised the judge's decision. "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,” he said in a statement. (He has not responded to Westword's request for comment on the appeal.)
But attorneys for the ACLU, who had previously sued Mikesell over his cooperation with ICE, still want a ruling on the merits of this latest lawsuit.
“By dismissing this case on grounds of standing, the district court inappropriately avoids grappling with an important issue of Colorado law: Does Sheriff Mikesell have the authority to defy the Colorado Legislature and the Colorado Constitution?" notes Silverstein. "We believe our clients properly asserted taxpayer standing, and we are confident the Court of Appeals will agree.”
If the Court of Appeals agrees with the ACLU of Colorado regarding standing, then the Teller County Court will have to determine whether Mikesell is violating Colorado law by having a 287(g) agreement with ICE on the books.
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The main thrust of the ACLU of Colorado's argument in that suit is that a law enacted by the Colorado Legislature in 2019 bans local law enforcement agencies from re-arresting a jail detainee who would normally be released, simply because ICE requests that they do so on civil immigration law grounds.
However, the final language of that law does not include an explicit ban on 287(g) agreements in Colorado.
And the language of the 287(g) agreement between ICE and Mikesell does deputize jailers to make arrests solely on the basis of immigration violation.
For Silverstein, the fact that 287(g) agreements aren't explicitly mentioned in the 2019 law doesn't mean they aren't illegal under it. "The courts rely on the statute that’s enacted," he argues. "The statute that was enacted says that Colorado law enforcement cannot detain or arrest people without a warrant signed by a judge."