A federal magistrate judge recommended dismissing the claims against Mesa County’s top judge over his alleged role in a woman’s two-week detention without bail, a right guaranteed in Colorado’s constitution.

At the same time, U.S. Magistrate Judge Nina Y. Wang on Jan. 27 recommended against dismissing one of Michelle Reynolds’ constitutional claims against the sheriffs of Mesa and Boulder counties. Wang determined that Reynolds’ appearance before a judge, for allegedly fewer than two minutes, did not sufficiently protect Reynolds’ right to seek bail.

Arielle Herzberg, a staff attorney with the ACLU of Colorado who is representing Reynolds, declined to comment on the case. However, she noted the governor signed a bill last year requiring sheriffs to create written policies and train their staff on their obligations to bring detainees before a judge for a bond hearing.

Colorado State Patrol pulled Michelle Reynolds over on Aug. 23, 2019. She had a warrant for her arrest from Boulder County that ordered “no bond pending first appearance in court.” Law enforcement booked her into the Mesa County jail and informed the Boulder County Sheriff’s Office.

Four days later, Reynolds appeared briefly before Mesa County Court Judge Craig P. Henderson, who reportedly never told her the nature of the charges against her and never assessed whether her continued detention was necessary. Reynolds also alleged Henderson did not tell her about an administrative order from Chief Judge Brian J. Flynn instructing judges to not modify a defendant’s bond when they have a warrant from another county.

Reynolds and her defense attorney asked repeatedly for transportation to Boulder County during her detention. The Mesa County Sheriff’s Office even reminded their counterparts in Boulder of the need to retrieve her.

It was not until Sept. 5, 2019 – 13 days after her arrest – that Reynolds arrived in Boulder. She appeared before a judge the next day and was released on a personal recognizance bond, meaning she did not have to pay money. Shortly afterward, prosecutors dismissed her case.

“She was physically assaulted multiple times while in jail. She lost her employment as a hospice caregiver. Ms. Reynolds suffered and continues to suffer emotional distress and fear from her lawless incarceration that appeared to be without purpose or end,” the ACLU attorneys wrote in Reynolds’ federal complaint.

Reynolds sued in April 2021, alleging Flynn, Boulder County Sheriff Joe Pelle and then-Mesa County Sheriff Matt Lewis violated her procedural rights under the law – namely by her indefinite detention without the opportunity for bail. Specifically, she claimed the sheriffs maintained a practice of not transporting people in a timely manner and that the chief judge knew his order would lead to a deprivation of liberty for defendants awaiting transport to other jurisdictions.

The Colorado constitution requires bail to be available for everyone who has not been charged with a violent crime, and the U.S. Court of Appeals for the 10th Circuit, whose jurisdiction includes Colorado, has previously found bail to be part of a person’s “liberty interest” that the U.S. Constitution protects.

Pelle, in arguing to dismiss Reynolds’ lawsuit, observed that neither the federal nor state constitutions establish a right to bail “within a specified period of time.” Similarly, attorneys for Lewis claimed that Reynolds was not actually subjected to prolonged detention, given that a Boulder County judge granted her bond shortly after her appearance there.

Wang, however, rejected Lewis’ argument that defendants only gain a legal interest in being released once their bail is set, regardless of how long they were behind bars prior to their court appearance.

“To hold that a detainee does not obtain a liberty interest in being free from detention until bail has been set would permit the government to detain an individual indefinitely, so long as the individual is never brought before a judge,” she observed.

Wang also agreed that Reynolds’ hearing before the Mesa County judge, based on the allegations, did not satisfy the requirements of due process. She recommended against dismissing the claims against Pelle and Lewis that alleged procedural violations.

In evaluating Reynolds’ other claim against the sheriffs, that they deprived her of liberty in a way that was so arbitrary that it “shocks the judicial conscience,” Wang acknowledged that it was difficult to define “conscience-shocking” conduct. Ultimately, she determined that the delay from both sheriffs’ offices in scheduling transportation from Mesa County to Boulder County did not rise to that level.

“To be sure, the court does not suggest that such actions were appropriate or sufficient, nor does the court hold that so long as a defendant takes some inadequate action, their conduct cannot rise to the appropriate level of egregiousness and shock the conscience,” Wang clarified, referencing other cases where jailers, in contrast, did nothing to end indefinite detentions of defendants.

As for Flynn, the chief judge asserted he had judicial immunity for the administrative order he issued prohibiting Mesa County’s judges from altering bonds on other counties’ warrants. Judicial immunity is a shield from civil liability for judges’ official actions, so that judges will not be harassed or intimidated for their decisions through lawsuits.

“The issuance of a court order is quintessentially a judicial act,” argued Senior Assistant Attorney General Andrew M Katarikawe, who represented Flynn. “[T]he function of the order was to create a general process that governed all criminal defendants appearing in the judicial district, and, because only a judicial officer could have issued it, Judge Flynn is entitled to judicial immunity.”

Reynolds contested that interpretation, claiming that Flynn was acting as an administrator, given that the order had nothing to do with any court case.

Wang conceded that the issue was a “close call,” but sided with Flynn. The portion of the administrative order pertaining to whether Mesa County judges could modify bonds was an interpretation of a Colorado Supreme Court case, meaning it fell within Flynn’s judicial duties. Although Reynolds argued that Flynn had interpreted the Supreme Court’s ruling wrongly, Wang declined to weigh in. 

Herzberg, of the ACLU of Colorado, said the latest order from the chief judge, to her knowledge, no longer forbids judges from modifying bonds for out-of-county defendants, but also does not require them to set bond in situations like Reynolds’.

The parties have 14 days to object to Wang’s recommendation, after which U.S. District Court Judge Raymond P. Moore will decide whether to adopt or reject her findings. Reynolds is seeking monetary damages in the case.

Flynn was also the defendant in another recent lawsuit alleging constitutional violations in Mesa County. Elson Foster was arrested seven times because the court had failed to clear his expired protection order from its system. Flynn was aware of the problem, but allegedly did not act to prevent the wrongful arrests, the lawsuit said. The case settled for $100,000.

The case is Reynolds v. Flynn et al.