Colorado Court of Appeals Invalidates 287(g) Agreement between Teller County and ICE

FAIR Take

A three-judge panel on the Colorado Court of Appeals recently ruled that provisions in the Teller County Sheriff’s Office 287(g) agreement, which authorizes deputies to perform certain immigration functions, such as detaining illegal aliens, violates Colorado law.

This lawsuit has been ping-ponging through Colorado’s court system ever since Sheriff Jason Mikesell signed the 287(g) agreement with U.S. Immigration and Customs Enforcement (ICE) in January 2019. The 287(g) agreement (named after a provision in the Immigration and Nationality Act) allowed him to deputize law enforcement officers to perform specific immigration functions – with the supervision of ICE and after officers were appropriately trained.

But shortly after Sheriff Mikesell and ICE signed this 287(g) agreement, the state legislature passed House Bill (HB) 1124 which the governor signed into law. That law prohibits a law enforcement officer from arresting or detaining an individual solely on the basis of a civil immigration detainer and prohibits a probation officer or probation department employee from providing an individual’s personal information to federal immigration authorities.

Shortly after the law went into effect, the ACLU filed a lawsuit on behalf of six Teller County residents alleging that Sheriff Mikesell violates the Colorado constitution and state law by detaining (and, they claim, effectively re-arresting) individuals who otherwise would have been released. The ACLU later amended its original complaint to include a claim that the 287(g) agreement violated the newly enacted Colorado law.

After a three-day bench trial in the District Court, Judge Scott Sells ruled that deputies involved in federal immigration enforcement under the 287(g) agreement were not subject to state law because they functioned as “de facto federal officers.” He also determined that the 287(g) agreement itself didn’t violate state law.

On appeal, the Court disagreed. Analyzing the state law, the Court of Appeals determined that any detention of an individual post-release would constitute a warrantless arrest. In the opinion, Judge Moultrie held that compliance with local law is a prerequisite for local law enforcement’s performance of immigration enforcement functions under a 287(g) agreement.

Because federal law governs 287(g) agreements, the Appeals Court first considered whether Colorado law would be preempted. In her opinion, Judge Pax Moultrie, determined that Colorado’s state law was not preempted by federal law since it would be possible to comply with both the state and federal laws. The panel also found that the Colorado law did not thwart Congressional objectives and that Congress “didn’t intend to preempt the historic police powers of the states.” 

Moreover, the Court held that participation in the 287(g) agreement by either the federal government or a state was voluntary under 8 USC 1357. Since participation was voluntary, the Court concluded that state or local law enforcement officers who are deputized to perform specific immigration functions do so “to the extent consistent with state or local law.”

The Court of Appeals also considered the impact of Colorado’s statutes on Teller County’s 287(g) agreement and concluded that the arrest and detention of individuals under the 287(g) agreement are prohibited by Colorado Revised Statutes (CRS) 24-76.6-101 and 24-76.6-102 which forbid honoring detainer requests without a judicial warrant.

Predictably, the ACLU hailed the Court of Appeals decision. “Today the court made clear that this harmful and anti-immigrant practice violates Colorado law and cannot be tolerated. This is the first case in the country holding that a sheriff violates state law by detaining immigrants pursuant to a 287(g) agreement with ICE,” said Tim Macdonald, ACLU of Colorado Legal Director.

At a press conference responding to the Court of Appeals decision, Teller County Sheriff Mikesell said, “This [287(g)] program was intended to enhance public safety by reducing the number of non-criminal, non-citizen offenders released back into our communities and I’m sorry Colorado, but your state legislator has decided that we shouldn’t be able to protect you.”

Standing with Sheriff Mikesell at the press conference, District 1 Teller County Commissioner Dan Williams said, “We’re going to continue to fight and we’re going to continue to fund it.” He continued, “We’re pretty solvent here in Teller County. We’re a debt-free county, but some things are worth fighting for.”

The Court of Appeals has remanded the case back to the district court to determine if the plaintiffs have met their burden for a permanent injunction.