Tuesday, March 20, 2018

ACLU of Colorado wins ICE-related suit against El Paso County Sheriff Bill Elder, county appealing

Posted By on Tue, Mar 20, 2018 at 3:45 PM

El Paso County has announced that it will appeal the district court decision in favor of the ACLU of Colorado. Notably, the county release states that Elder has "has stood steadfastly with ICE to assist in fulfilling ICE’s requests to detain individuals deemed removable from the country under federal law," a claim that seems odd given Elder's past statements.

The county's release is also critical of ICE. Here it is in full:

Commissioners Direct County Attorney to Appeal Ruling in ACLU Complaint Against Sheriff
Unsettled Area of Law Requires Further Judicial Review


El Paso County, CO, March 20, 2018 – The Board of El Paso County Commissioners (BoCC) has directed The El Paso County Attorney’s Office to appeal Judge Bentley’s Temporary Restraining Order and Preliminary Injunction issued today in connection with 18CV30549 Cisneros vs. Sheriff Bill Elder.

This Order granted a preliminary injunction enjoining Sheriff Elder from relying on ICE immigration detainers or ICE administrative warrants as grounds for not releasing Plaintiffs from custody.

The issues considered by the Court are complex; the practice being enjoined requires additional judicial analysis by the Supreme Court of Colorado. Until that process is completed, the County Attorney has counseled Sheriff Elder not to comment on the pending lawsuit. As El Paso County’s chief law enforcement officer, Sheriff Elder respects the rule of law, and will comply accordingly. Sheriff Elder, believes, however, that the issues in this litigation have a tremendous impact pertaining to the safety of El Paso County citizens.

It is important to note that since taking Office, Sheriff Elder has stood steadfastly with ICE to assist in fulfilling ICE’s requests to detain individuals deemed removable from the country under federal law. Notwithstanding his unwavering cooperation with ICE, the federal agency has proven to be a less than reliable partner regarding pursuing its own mission. Indeed, despite the Sheriff entering into a formal written agreement with ICE to house federal detainees, ICE has chosen not to honor its obligations to defend or stand in the place of the Sheriff in the current litigation. This is troubling but not entirely surprising, based on a consistent pattern by ICE to act in this manner.

Additionally, this is an unsettled area of law. As noted by Judge Bentley himself, “…the courts universally acknowledge that it is legitimate for state and local officials to communicate and cooperate with immigration authorities but courts have disagreed about the scope of such permissible cooperation.” His ruling further notes, “that El Paso County is one of only two counties in Colorado that currently honor ICE detainer requests. (The other is apparently Adams County.) 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.”

With that in mind, Sheriff Elder, through the County Attorney’s Office will immediately appeal Judge Bentley’s Temporary Restraining Order and Preliminary Injunction to the Colorado Supreme Court.
——- ORIGINAL POST, MARCH 20, 2:36 P.M. ——-
The American Civil Liberties Union of Colorado won its suit in district court against El Paso County Sheriff Bill Elder, and the judge ordered Elder to refrain from using ICE immigration detainers or ICE administrative warrants as grounds for keeping the ACLU's plaintiffs in jail after they post bind, complete their sentence or otherwise resolve their cases. The ACLU had filed a class action lawsuit on behalf of dozens of plaintiffs who said they were held at the county's jail solely based on suspicion they were in the country illegally.

click to enlarge El Paso County Sheriff Bill Elder - FILE PHOTO
  • File Photo
  • El Paso County Sheriff Bill Elder
The ruling comes after a confusing series of decisions from Elder in regards to the immigration status of inmates at the county's jail. In 2015, Elder claimed that his department had exited a federal program that allowed the jail to hold inmates for ICE. (That was around the time that the ACLU of Colorado had warned counties not to hold inmates only on federal immigration charges, as that was illegal and would invite a lawsuit from the organization. El Paso County was one of a list of Colorado counties that changed its practices in light of the warning.)

Once again, in 2017, Elder told the Indy he didn't have room to house such inmates. But in February, when asked to comment on the ACLU's lawsuit, the Indy was emailed a response from Elder that read, in part:

The Sheriff’s Office will not speak about pending litigation. What I can say is that since 2007, we have not changed any of our practices as it relates to the arrest and housing of inmates to include foreign born nationals. We arrest and house criminals where probable cause exists for a state crime. If the criminal is unlawfully present, EPSO honors the detainer filed by ICE and requires ICE to pick up the inmate within a reasonable period of time.
For the full background, go here.

The Indy has asked the Sheriff's Office to respond to the ruling, and to indicate whether an appeal is planned. We will update this blog when and if we hear back.

This is what the ACLU had to say about the ruling:

Judge Rules El Paso County Sheriff Must Stop Illegally Holding Prisoners for ICE

DENVER – State District Court Judge Eric Bentley has ordered El Paso County Sheriff Bill Elder to immediately stop relying on ICE immigration detainers or ICE administrative warrants as grounds for refusing to release ACLU of Colorado plaintiffs from custody when they post bond, complete their sentences, or otherwise resolve their criminal cases.

ACLU of Colorado filed a class action lawsuit on February 27 alleging that Sheriff Elder had unlawfully imprisoned dozens of individuals for days, weeks, and even months without legal authority, solely on the ground that ICE suspected that they were subject to deportation for civil immigration violations.

At a hearing held yesterday morning, ACLU attorneys requested a preliminary injunction to stop the practice, arguing that the Sheriff’s policy violated Colorado law and that the prisoners held by Sheriff Elder would suffer irreparable harm by continuing to forfeit their liberty while the case proceeded. In a ruling issued late last night, Judge Bentley granted the injunction.

ACLU of Colorado Legal Director Mark Silverstein issued the following statement:

“Judge Bentley’s ruling confirmed that Colorado sheriffs have no legal authority to enforce federal immigration law and that when individuals have posted bond or resolved their criminal case, Colorado law requires that they be released.

“Colorado 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. As the Judge’s ruling confirms, when sheriffs hold an individual for ICE for any amount of time past their release date, they make a new arrest for which they have no legal authority under Colorado law.

“Federal immigration authorities are attempting to co-opt sheriffs’ limited resources for their aggressive deportation agenda, but they cannot do so at the expense of individual liberties or Colorado law. When they do, the ACLU will fight them at every turn.

“Colorado sheriffs swear an oath to the Constitution, not to ICE.” 

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