El Paso judge sides with ACLU

Sher­iffs have no le­gal au­thor­ity to hold pris­on­ers for ICE

The Denver Post - - DENVER & THE WEST - By Noelle Phillips Noelle Phillips: 303-954-1661, [email protected]­ver­post.com or @Noelle_Phillips

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.

El Paso County plans to ap­peal the de­ci­sion, said Jac­que­line Kirby, a sher­iff’s spokes­woman. The sher­iff has not held any in­mates on ICE de­tain­ers since the in­junc­tion was handed down in March, she said. The sher­iff had no fur­ther com­ment.

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 the 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.

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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