In 2017, sheriffs in Colorado’s El Paso and Teller counties broke with the practice followed by more than 500 state and local law enforcement agencies around the country of declining requests from Immigration and Customs Enforcement (ICE) to hold prisoners solely on the basis of ICE immigration detainers and ICE administrative warrants. ICE detainers and administrative warrants are requests by ICE for sheriffs to continue to hold prisoners after they post bond, complete their sentence, or resolve their criminal case, because ICE believes they might be subject to civil removal proceedings.
ACLU of Colorado had convinced Colorado Sheriffs to stop the “ICE hold” practice in 2014. When El Paso and Teller county Sheriffs began honoring ICE detainer requests again, the ACLU filed a class action lawsuit against El Paso County Sherriff Bill Elder in February of 2018, asserting he had unlawfully imprisoned dozens of individuals solely on the basis of ICE requests. The ACLU later filed a separate lawsuit against Teller County Sheriff Jason Mikesell.
In March of 2018, El Paso County District Court Judge Bentley issued a preliminary injunction against Sherriff Elder, finding that the prisoners would suffer irreparable harm by continuing to forfeit their liberty while the lawsuit proceeded. The court later certified the case as a class action. The parties then agreed to have the case determined on stipulated facts rather than by trial.
On December 7, Judge Bentley issued his summary judgment ruling, in which he permanently enjoined Sheriff Elder from the illegal practice of continuing to hold prisoners for ICE after state law requires their release. The judge also declared that Sheriff Elder’s practices violated three separate provisions of the Colorado Constitution. According to ACLU Staff Attorney Arash Jahanian, “the court also noted a complete lack of evidence to support Sheriff Elder’s claim that the practice promotes public safety.”
Commenting on the victory, ACLU of Colorado Legal Director Mark Silverstein stated, “In issuing a very thorough final ruling that concludes the proceedings in state district court, Judge Bentley explained that Colorado sheriffs have no legal authority to enforce federal immigration law by holding individuals at the request of ICE.” He added, “The court ruled that when individuals have posted bond or resolved their criminal case, sheriffs have a clear legal duty to release them.”
The lawsuit against Teller County is pending, with trial set for June 2019.
Holland & Hart’s Steve Masciocchi, serving as an ACLU Cooperating Attorney, and Silverstein and Jahanian were co-counsel for the Plaintiffs. Masciocchi is an experienced class action and appellate lawyer who agreed to serve as counsel on a pro bono basis. Masciocchi was assisted by Holland & Hart associate Kyriaki Council.
Holland & Hart has a longstanding tradition and national reputation as a law firm committed to providing legal pro bono services to those would otherwise go without legal help, particularly in issues of constitutional import. Our lawyers provide legal representation to organizations and individuals in the eight states and the District of Columbia where the firm has offices and beyond.