Colorado Court of Appeals Revives Teller County ICE Suit, Nash v. Mikesell

Prison hallway looking through bars
The state Court of Appeals ordered a district court to reinstate Nash v. Mikesell, a lawsuit that challenges the Teller County sheriff’s use of taxes in state illegal ICE detainments. / Photo by Matthew Ansley on Unsplash

The state Court of Appeals reinstated a lawsuit on Dec. 16 that claims Teller County Sheriff Jason Mikesell broke Colorado law by partnering with Immigration and Customs Enforcement. The group of Teller County residents, represented by ACLU Colorado, have taxpayer standing in the case, the court ruled, overturning a district court’s case dismissal. 

With the lawsuit reinstated, the district court will consider the case’s merits, which include questions about the sheriff’s obligation to enforce conflicting federal and state laws, according to ACLU Colorado Legal Director Mark Silverstein. 

“While this ruling is about taxpayer standing, the lawsuit is really about the sheriff exceeding his authority and enforcing federal immigration law,” explained Silverstein. “In our view he needs to stick to enforcing Colorado law.”

Six Teller County residents, Berck Nash, Joanna Nash, Rodney Saunders, Darlene Schmurr-Stewart, Paul Michael Stewart and Janet Gould, sued Mikesell in 2019 claiming that he entered into an unlawful agreement with ICE that used their taxes. Earlier that year, Sheriff Mikesell entered into a Jail Enforcement Officer model agreement that allows certain ICE-trained officers at the Teller County Jail to perform 48-hour civil immigration detainers past release dates and execute administrative warrants to hold people they suspect could be deported on behalf of the federal immigration office.  

Teller County Jail isn’t compensated by ICE and is responsible for most costs connected to the program including a month-long training program in South Carolina, annual refresher training and the salaries of deputies who perform the holds during their normal course of duties.  

The partnership, known as a 287(g) agreement, is federally legal under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. However, the Teller County residents argued, certain parts of the Jail Enforcement Officer model clash with Colorado law. 

In May 2019, Gov. Jared Polis signed House Bill 19-1124, which barred state personnel from making ICE immigration holds or administrative warrants. The Colorado law considers any detention of an inmate at the request of ICE beyond their normal release a warrantless, unconstitutional arrest. 

The 2019 law codified a Colorado district judge’s decision in another lawsuit represented by ACLU Colorado, Cisneros v. Elder, that ruled the then-El Paso County Sheriff Bill Elder exceeded his authority to execute ICE administrative warrants and detainers under Colorado law and also violated state constitutional rights to bail and due process. ACLU Colorado challenged ICE holds for a number of years before HB 19-1124 and in response to cease-and-desist letters from the organization, every sheriff in Colorado announced in 2014 they would not honor the holds at county jails. 

According to ACLU Colorado, Teller County Jail is the only state detention center with an active 287(g) agreement. Silverstein explained that when the lawsuit was filed, Mikesell had signed the agreement but the program hadn’t started yet. Since the case hasn’t progressed to discovery, Silverstein doesn’t know if Teller County authorities have detained anyone under the agreement. But, he added, without an injunction against the program, “I assume that it’s been operational and the sheriff didn’t say anything different when we had oral argument.”

The latest decision by the Colorado Court of Appeals boiled down technicalities of how the Teller County Jail is funded. “The question was whether the sheriff was spending the taxpayer’s money on the challenged program,” said Silverstein. 

The Teller County Jail is a government owned and operated enterprise. It’s run by deputies who “change hats,” between working for the sheriff’s office and working at the jail. Officers at the jail are paid by the Teller County Jail, which charges Teller County fees for its services that come out of a county jail enterprise fund. Teller County is statutorily obligated to pay the jail for the fees and has complied with the obligation. 

After limited oral arguments, the district court dismissed the lawsuit and held that the Teller County residents didn’t have taxpayer standing to bring the challenge. The court reasoned that since the jail is funded with the enterprise fund, taxpayer dollars were not used to fund the jail and the plaintiffs weren’t harmed. 

Last week, the Colorado Court of Appeals overturned the lower court’s decision. It found that since Teller County has an obligation to fund the jail with taxes and its taxes go into the enterprise fund, the jail is taxpayer funded. 

The case is set to be reinstated in 2022 on orders from the Colorado Court of Appeals, meaning the district court will now consider the case’s merits. 

“One thing that’s unique is the issue that the court never got to,” said Silverstein. “We are challenging a sheriff’s authority under state law to engage in a partnership with ICE, a partnership that is approved and sanctioned by the federal government. And we’re arguing that Colorado law prevents the sheriff from engaging in this partnership.” 

“I don’t know of another case in the country that is arguing that a sheriff violates a state statute and the state constitution by partnering with ICE to enforce federal immigration law,” Silverstein added.  

Silverstein doesn’t know of any other state with a law prohibiting state personnel from executing civil immigration detainers administrative warrants, but a handful of other states have had similar court rulings to Cisneros v. Elder. Courts in New York, Massachusetts and Montana have ruled local sheriffs don’t have authority to perform certain ICE detainers. 

The Teller County Sheriff’s Office did not respond to Law Week’s request for comment. 

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