State law provides immunity to the El Paso County sheriff for intentionally detaining an inmate for months upon request from immigration authorities, a Court of Appeals panel decided 2-1 in dismissing the man’s wrongful imprisonment lawsuit.
“We reverse this decision for a simple reason: ‘negligence’ means negligence; it does not mean intentional conduct. The General Assembly never meant for this statute to apply to intentional conduct,” wrote Judge Diana Terry in an opinion issued on Thursday.
Sheriff Bill Elder created a policy to comply with requests from U.S. Immigration and Customs Enforcement to hold inmates longer than state law allowed in order to give federal officials time to take the suspected undocumented immigrant into custody. Even if inmates had posted bond or completed their sentences, Elder would honor ICE detainers or administrative warrants — which are not signed by judges and therefore not mandates.
In 2019, Gov. Jared Polis signed into law a prohibition on local law enforcement agencies honoring ICE requests without a judge’s order. The agency argues that such a refusal “undermines ICE’s ability to protect public safety and carry out its mission.”
Saul Cisneros was a detainee at the El Paso County Criminal Justice Center when his daughter posted a $2,000 bond. Nevertheless, Elder continued to detain him on an ICE hold, ultimately keeping him in custody for four more months.
Judge Sueanna P. Johnson during oral argument observed that ICE could only request a hold up to 48-hours for an individual.
"So, what happened?" she asked.
Assistant county attorney Mary Ritchie responded that it was something "we don't know."
In September, a separate Court of Appeals panel dismissed a previous lawsuit from Cisneros and another inmate against Elder. An El Paso County District Court judge ruled that Elder violated inmates’ constitutional protections and moved to provide relief to all inmates subject to ICE detainers, but the appellate panel decided the issue was moot due to the new state law.
However, Cisneros also sued Elder for false imprisonment. District Judge Eric Bentley denied Elder’s assertion of immunity under the Colorado Governmental Immunity Act. The law, which generally shields government entities from liability, provides an exception to immunity for the operation of a jail. Only injuries that result from negligence qualify under the waiver.
Terry concluded that because Elder intentionally detained Cisneros, the law shielded Elder from lability.
"As originally drafted, [the jail provision] would have reinstated sovereign immunity for all injuries resulting from the operation of a jail,” she wrote. However, the General Assembly amended the provision to only refer to negligence. Legislators were specifically concerned about frivolous claims against jails and correctional facilities, and the sponsor, then-Sen. Sen. Dick Mutzebaugh, R-Highlands Ranch, indicated the bill addressed “negligence and things like that.”
Further, when asked specifically if the jail provision covered intentional actions, Mutzebaugh responded that would constitute a federal civil rights claim.
During oral argument, Ritchie claimed Cisneros’s four-month detention would be applied toward his sentence upon conviction, and therefore was unproblematic.
“Plaintiff’s injury is the detention itself. That is, that he was deprived of personal liberty. Yet shortly after he was released by the court,” she said, “plaintiff pled guilty and was convicted of three Colorado crimes.”
“So what?” interrupted Judge David J. Richman. “What’s the difference if he was convicted later on?”
“If he’s acquitted, yes, then those four months would be illegal detention,” Ritchie replied. “But legally they are now considered incarceration for conviction.”
In an uncommon move, all three members of the appeals panel issued separate opinions. Johnson agreed with Terry’s finding of immunity, but disagreed with her method of looking to the legislative history.
Saying such an analysis “invites confusion,” Johnson simply believed the plain wording of the law prohibited liability claims for intentional acts.
In his dissent, Richman offered a different interpretation of legislative history, in which Mutzebaugh acknowledged that “a mere minimum of negligence” was required under the change, but “if somebody claims that it was more than that, then that doesn’t become a defense for the sovereign immunity to apply.”
Referring also to the legal definition of negligence, which encompasses conscious behavior, Richman argued that “Nothing in this discussion suggests that the legislature intended the waiver of immunity to be limited to cases of negligence.”
Cisneros's attorney, Peter A. Kurtz, agreed with that interpretation. "We don't believe there is a need to get to the legislative history here," he said at oral argument. "The phrase 'due to negligence,' we read as: 'at least due to negligence."
The case is Cisneros v. Elder.