El Paso County judge sides with ACLU, rules sheriffs have no legal authority to hold prisoners for ICE

In striking down a Colorado sheriff’s decision to hold people in jail for federal immigration authorities, an El Paso County judge said Sheriff Bill Elder has no evidence that the practice promotes public safety.

“Public debate on immigration enforcement rightly focuses on public safety,” District Court Judge Eric Bentley wrote. “All counties in Colorado, with two or three exceptions, have ceased their practice of honoring ICE hold requests. Had that change in practice created public safety issues, there would no doubt be evidence to show for it, whether in the form of data or, at the least, affidavits from other sheriffs. However, Sheriff Elder has submitted no evidence whatsoever on the subject, and he cannot raise a genuine issue of material fact by mere argument of counsel.”

Bentley ruled Thursday night that Elder has no legal authority to hold prisoners for U.S. Immigration and Customs Enforcement.

The ACLU of Colorado earlier this year filed a class action lawsuit against Elder, saying he had unlawfully imprisoned dozens of individuals for days and weeks without a warrant or probable cause of a crime. The judge already had issued a preliminary injunction, ordering Elder to stop holding people on ICE immigration detainers.

Efforts to reach Elder on Friday were unsuccessful.

The ACLU argues that it is a constitutional rights violation to hold people solely because they are suspected to be living in the country illegally.

The ACLU also has sued Teller County Sheriff Jason Mikesell over the same issue, but a district court judge presiding in that case has sided with Mikesell.

Two federal courts of appeals have ruled that sheriffs do not have authority to hold people on immigration detainers, but the issue has never been argued in the 10th Circuit Court of Appeals, which has jurisdiction over Colorado. Legal observers have predicted the battle between the two sheriffs and the ACLU will make its way to the higher courts.

In his decision, Bentley acknowledged the brewing legal battle, saying similar arguments over whether a national immigration strategy to involve sheriffs in detaining people is a violation of civil rights.

“Clearly, the issues are ones on which reasonable minds may differ. Resolution of one of these cases by a higher court is needed in order to provide certainty in this area to Colorado’s sheriffs and the immigrant population,”: Bentley wrote.

Since 2014, Colorado’s sheriffs have agreed with the ACLU’s position in light of other federal circuit court rulings and have not detained people on behalf of ICE unless there is an outstanding criminal warrant. Elder and Mikesell broke from the other sheriffs.

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