Appeals Court Reinstates Lawsuit Against Teller County Sheriff Over ICE Cooperation

A panel of judges from the Colorado Court of Appeals has reinstated an ACLU of Colorado lawsuit against the Teller County sheriff over his cooperation with Immigration and Customs Enforcement.

"It’s good to see," says Mark Silverstein, ACLU of Colorado legal director. "Now we get to go back to the district court and raise the issues that really brought us to the case, which is the sheriff exceeding his state law authority by trying to enforce federal immigration law and violating the state constitution and state statute in the process."

The December 16 reinstatement of the case kicks the lawsuit back down to Teller County Court.

The ACLU of Colorado had sued Teller County Sheriff Jason Mikesell back in June 2019 over Mikesell's signing of what's known as a 287(g) agreement, which authorizes Teller County sheriff deputies to handle some immigration enforcement tasks.

The contract between the sheriff and ICE is the only one of its kind in the state, and calls for training deputies on how to determine if a person is in the country illegally while in state or local custody. The 287(g) agreement does not authorize Teller County sheriff deputies to do immigration enforcement work outside of the confines of the jail, however.

In April 2020, Teller County Court Judge Scott Sells dismissed the lawsuit, agreeing with the attorneys representing Sheriff Mikesell that the plaintiffs, all of whom were taxpayers in Teller County, lacked standing in court.

Attorneys for Mikesell had 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." Teller County, along with other local and federal law enforcement agencies, pays the Teller County Jail Enterprise Fund to house inmates, and no taxpayer money is directly allocated to the enterprise fund, the judge concluded.
But Judge Terry Fox, who crafted the opinion for the panel of Appeals Court judges, rejected the conclusion of the lower court, writing in the December 16 ruling that the jail is "acting as a part of the government, and the money that it relies on to operate should be treated for taxpayer standing purposes accordingly—that is, as taxpayer dollars." Therefore, the plaintiffs do have standing, Fox said.

With the lawsuit reinstated, Silverstein will get to argue about the applicability of legislation approved in 2019 to the case.

"When the legislature prohibited sheriffs from holding people on the basis of immigration detainers and on the basis of requests from ICE, they didn’t include any kind of enforcement mechanism," Silverstein notes, adding that he's now hoping the lawsuit will lead to enforcement.

That 2019 law came out of a bill that proposed to ban 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 of the bill had a specific provision that banned 287(g) agreements, but pressure from the office of Governor Jared Polis led to this section being removed before the governor signed the bill into law.

But Silverstein still believes that the law prohibits Colorado law enforcement agencies from entering into 287(g) agreements "because some of the activities that the sheriff will engage in as part of the 287(g) agreement are activities that are forbidden by the statute, like holding someone after their sentence is completed on the basis of an immigration detainer, an immigration detainer that may be issued by the sheriff’s deputies themselves."

A lawyer representing Mikesell in the case did not respond to a request for comment. An ICE spokesperson declined to comment on the ruling, saying that ICE doesn't comment on litigation proceedings or outcomes. After the lawsuit was dismissed in April 2020, however, the ICE Denver field office sent out a press release on the outcome of the case. It quoted John Fabbricatore, field officer director for ICE Enforcement and Removal Operations: “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." ICE and Sheriff Mikesell re-upped the 287(g) agreement in June 2020.

"Some forms of cooperation are different from others," Silverstein argues. "What the sheriff wants to call cooperation here is depriving people of liberty and locking them up in jail without legal authority. That’s a type of cooperation that’s qualitatively different than, say, letting ICE know when somebody is going to be released from jail...There’s also an argument that immigrant communities are going to be reluctant to call police for help when they fear that doing so might land their loved one not just in the hands of police, but in the immigration deportation pipeline."