Some members of the Colorado Supreme Court on Tuesday appeared unwilling to accept the idea that El Paso County Sheriff Bill Elder could not be held liable for keeping a man jailed for nearly four months after he posted bond.

The lawsuit brought by Saul Cisneros against the top law enforcement official of Colorado’s most populous county hinges on the answer to a narrow question: Does the law that provides immunity for government entities apply to intentional policy decisions? Or only to negligent or careless behavior?

In Elder’s view, the state legislature clearly intended to immunize him for keeping Cisneros jailed on an immigration hold far beyond the 48 hours that U.S. Immigration and Customs Enforcement itself says is the legal window. The sheriff cited the Colorado Governmental Immunity Act’s requirement that pretrial detainees can sue jail operators if they can show they were injured “due to negligence.”

Cisneros, on the other hand, argued it is nonsensical to think that a sheriff could only be held liable for negligently violating a person’s rights, but not if he made the conscious decision to do so. In Cisneros’ interpretation, the General Assembly meant for negligent conduct to be the minimum type of behavior subject to civil liability.

During oral arguments, Justice Carlos A. Samour Jr. appeared most sympathetic to Cisernos’ framing, saying Elder’s reading of the law seems “not only counterintuitive to me, but absurd.”

The sheriff’s argument would allow defendants to say, “Had I acted with negligence, I may have been on the hook. But because I acted intentionally, I get off,” Samour said.

Cisneros entered the El Paso County Jail following his arrest in November 2017. Four days later, his daughter posted bond. However, ICE had issued an immigration detainer and administrative warrant asking the jail to hold him in order for federal authorities to take him into custody on suspicion of being in the country illegally. Neither document had a judge’s signature, and the request was for a 48-hour detention.

Under Elder’s policy, the jail would continue to hold detainees upon ICE’s request, even if they had posted bond or completed their sentence. For reasons not clear in the appeal, the jail held Cisneros until March 2018, far beyond the 48-hour window.

Cisneros initiated two legal actions against Elder: a class action lawsuit claiming the sheriff exceeded his authority under Colorado law, and a false imprisonment claim seeking damages. 

In the first case, District Court Judge Eric Bentley decided that Elder violated the state constitution’s protections against unreasonable seizures and the rights to bail and due process. Although Elder appealed, Gov. Jared Polis signed a bill in 2019 that now bars state law enforcement officials from detaining people based solely on ICE warrants without a judge’s signature. The Court of Appeals decided in late 2020 that the new law made the case moot.

The second lawsuit is the appeal currently before the Supreme Court.

Bentley allowed the case to go forward, but the state’s second highest court, siding with Elder in a 2-1 decision, halted the lawsuit on appeal. In an usual move, all three judges on the Court of Appeals panel issued separate opinions. Then-Judge Diana Terry, in the majority opinion, concluded simply that “‘negligence’ means negligence.”

“It may strike reasonable people the same way as it did the district court, that if liability is waived for negligent conduct, it should also be waived for intentional conduct. But we are bound to apply the law as written,” she added.

In a dissenting opinion, Judge David J. Richman characterized that interpretation as literal but “illogical.”

He pointed to the General Assembly’s original version of the 1994 law, which mentioned pretrial detainees could sue jail operators “only” for negligence. The legislature deleted the word “only” in the final version of the bill.

Richman also noted an exchange between Sen. Jim Rizzuto, D-La Junta, and a sponsor of the law, Sen. Dick Mutzebaugh, R-Highlands Ranch. Rizzuto wanted to know if the law would apply to “anything greater than mere negligence.”

“I’d hate to have some person … in some jail or some Department of Corrections saying, ‘No, it wasn’t negligence. We meant to beat him up’,” he said.

Mutzebaugh responded that he intended to impose “a very minimal standard” for government actors to be able to held liable.

But some justices on the Supreme Court worried about taking their cue solely from that dialogue between lawmakers.

“If there was that exchange at the Senate, why in the world would they not change the language of the statute?” observed Chief Justice Brian D. Boatright. “I just feel like we are being asked to add words to the statute to fix something that they specifically talked about.”

“I can appreciate that this appears to be a poorly-written law,” responded Mary Ritchie, assistant county attorney for El Paso County, who defended Elder. She said she understands how a literal reading of the law would not allow pretrial detainees to sue jail officials when they intentionally inflict injuries.

“While this may seem unwise or unfair, dissatisfaction with the policy choice made by the General Assembly does not entitle this court to overrule the legislature’s decision absent a firm conviction the decision is harmful and irrational,” she added.

Ritchie explained that Cisneros could have sued officials individually for their conduct because the legislature had chosen to shield “financially vulnerable public entities.” She also blamed Cisneros for waiting in jail only to file a civil lawsuit against the sheriff, instead of trying to free himself sooner.

“You don’t sit there for four months,” she said.

“Why is the burden in that scenario on Mr. Cisneros?” retorted Justice Maria E. Berkenkotter.

Justice Richard L. Gabriel also worried that Elder was inventing a hurdle by reading the law as if the legislature had never deleted the reference to liability “only” for negligence.

Samour summed up his thinking on the issue by observing that under Elder’s interpretation of the law, the sheriff was safe from liability if he was not responsible for falsely imprisoning Cisneros, but also if he was intentionally responsible for it. He was only liable if he had committed false imprisonment without sufficient care.

“You kind of have negligence sandwiched between these two areas where it wouldn’t apply. That doesn’t make sense to me,” he said.

The ACLU of Colorado and Holland & Hart are representing Cisneros in the appeal. Last month, the ACLU won a separate appeal against the sheriff of neighboring Teller County after challenging his office’s cooperation agreement with federal immigration authorities. The Court of Appeals reinstated that lawsuit after a lower court judge dismissed it.

The case is Cisneros v. Elder.