Sheriff can cooperate with ICE despite state law
A Teller County District judge ruled Wednesday that the county sheriff isn't violating Colorado law by allowing his deputies to conduct immigration enforcement through an agreement with the federal government.
The American Civil Liberties Union of Colorado sued Teller County Sheriff Jason Mikesell, asserting that the sheriff's office participation in what's called a 287(g) agreement violates the state constitution and a law passed in 2019, which limits local law enforcement cooperation with U.S. Immigrations and Customs Enforcement. The law prevents immigrants who are jailed from being held beyond their release dates solely at the request of ICE for civil immigration arrest — a signed judge's warrant would be required.
But Teller County District Court Judge Scott Sells ruled that deputies who were trained by ICE through the 287(g) agreement — four in Teller County — are “de facto federal officers when performing functions as Designated Immigration Officers under the 287(g) agreement.” He stated in his ruling that the sheriff can legally enter into this type of agreement without violating state law.
And, “I find it significant that neither the Sheriff or Jail Commander have authority to enforce immigration law or supervise the TCSO deputy when he or she is acting as a DIO under the 287(g) Jail Enforcement Model,” Sells wrote.
The ACLU disagrees and plans to take the case to the Court of Appeals, continuing the years-long legal case.
“We are disappointed that the trial court upheld the Teller County Sheriff's 287g program,” Mark Silverstein, ACLU of Colorado legal director, said in a written statement. “We remain steadfast in our claim that the Sheriff's program of enforcing federal immigration law violates the Colorado Constitution as well as a Colorado statute.”
Neither the sheriff's office nor an attorney representing Mikesell returned requests for comment Wednesday. Teller County is the only county in the state operating a 287(g) agreement.
The Teller County case is the first in the country concerning the legality of the 287(g) agreement to go to trial, according to the ACLU.
“Under current Colorado law, in all the other counties of the state, an inmate who ICE might be interested in can post bail on their state criminal charges and that person is released from the jail,” Silverstein said in an interview. “And yes, ICE can still apprehend them outside the jail or in the community. That's the situation that's going on all over the state except in Teller County.”
“The state law doesn't give the sheriff the authority to say, ‘I'm not going to release people when they post bail because I signed an agreement with ICE — an agreement that he doesn't have the authority to enter into,” Silverstein said.
The judge saw it differently, writing in his order that three people in Teller County jail who were arrested on immigration violations were served their warrants within six hours of posting bond.
However, they continued being held in the jail until ICE transported them to another facility, one of the people was jailed for 17 days. Mikesell submitted his request to join the 287(g) agreement in 2018, according to the court.
The El Paso County Sheriff's Office previously had a 287(g) agreement but ended it in 2015. However, the sheriff's office continued to hold people in jail after they had posted bond or their cases had been resolved at the request of ICE. A district court ruled the practice unconstitutional in 2018 after an ACLU classaction lawsuit.
In his January testimony in Teller County, Mikesell said he applied for the program because of an increase in crime, including organized criminal activity by out-of-state cartels and illegal grow operations.
“He started the GOT (Get Out of Teller) program to scare or influence drug dealers and illegal immigrants to leave Teller,” the judge's order stated.
One of the former deputies who now works for ICE, Laura Hammond, said in her testimony that if she found out anyone in the jail wasn't a citizen, she would “start an investigative process to determine ‘alienage and deportability,'” according to the order. A person having been born in a foreign country was enough to trigger an investigation. An order to detain any inmate would have to be authorized by someone from ICE, though they were not signed by a judge, before being served.
The judge noted in his ruling that the legislature did not specifically prohibit sheriffs from entering into 287(g) agreements — a point of contention that arose when the law was drafted in 2019. But the ACLU says the agreements contradict state law.
These agreements have long been criticized as harmful to individuals and families and that they are costly to taxpayers at the benefit of ICE. A 2009 University of North Carolina School of Law and the ACLU of North Carolina study found that “287(g) encourages, or at the very least tolerates, racial profiling and baseless stereotyping, resulting in the harassment of local residents and the isolation of an increasingly marginalized community.”