Colorado’s new law preventing people from being held in custody purely on a civil immigration detainer is not expected to change much in the 7th Judicial District’s four county jails.
It is already policy in Montrose, Delta, Gunnison and San Miguel counties’ jails not to hold people just on the basis of Immigration and Customs Enforcement detainers — holding an inmate who has completed his or her sentence on a local charge, or who has posted bond on a local case, has long been seen as unconstitutional.
“For quite some time now, we have not honored the detainers. There have been several court cases where sheriffs have been sued for honoring those detainers,” San Miguel County Sheriff Bill Masters said, adding ICE could rectify the situation by obtaining warrants, rather than trying to rely on orders signed by a hearing officer.
“The Constitution says you can only hold people on warrants signed by a magistrate. Those detainers are not signed by judges. I don’t understand why ICE can’t just take the extra step and get arrest warrants signed by a judge. Then, we would be bounded to detain them if there is an active warrant signed by a judge,” he said.
“I think the new Colorado law just makes it to where we are forced to follow the Constitution, which is probably proper.”
The new law, House Bill 1124, or Protect Colorado Residents from Federal Government Overreach, bars law enforcement officers from arresting or detaining a person solely on the basis of a civil immigration detainer.
It also requires officers who are coordinating a phone or video interview between federal immigration officials and a person being held in their custody to advise the individual of who is seeking the interview; that he or she can decline the interview and invoke the right to remain silent. As well, the person in custody is to be told anything said during such an interview can be used against him or her, including in immigration court.
The new law allows officers to cooperate with and continue to assist immigration authorities in the execution of federal warrants, and to honor any writ by any state or federal judge concerning the transfer of a prisoner to or from federal custody.
Probation officers are barred from providing an individual’s personal information to immigration authorities.
The law solidifies policy at Masters’ jail, as well as similar policy in the Montrose, Delta and Gunnison jails.
For several years, the Montrose County Jail has not held people who have resolved their local cases or bonded out, on basis of ICE detainers.
The issue began cropping up as early as 2009, when the then-sheriff was accused of contempt for handing over an inmate to ICE after a writ of habeas corpus had been issued, compelling the sheriff to deliver the inmate to court. The citation was vacated, in part because the sheriff was “caught between two competing authorities” — the local court and ICE.
By 2014, following a U.S. Court of Appeals ruling that found ICE detainers are non-binding requests, local sheriffs had stopped holding people just on ICE detainers. They required signed warrants.
In 2017, Montrose and Delta counties’ sheriffs, Rick Dunlap and Fred McKee (both since retired), pushed back against being listed in The Department of Homeland Security’s “Declined Detainer Outcome Report.” The issue, Dunlap and McKee said at the time, was that holding an inmate beyond his or her release date is unconstitutional. Dunlap called the federal pressures “madness” and called for something to take liability off of sheriffs.
“We don’t take in a lot of Immigration and Customs Enforcement holds here at the Montrose County Jail. We believe strongly in working with the federal government in regards to different situations,” current Montrose County Sheriff Gene Lillard said.
“If we arrest somebody that has done something illegal, we do not hold them on an ICE detainer. We hold them on criminal charges and they’re allowed to post bond like anyone else.”
The law supersedes any jail policy, Lillard said.
“If we get an undocumented person who has committed a serious crime and ICE does have a hold, we will immediately contact ICE and let them know. We want to see the person brought to justice and have his day in court,” Lillard said. However, he reiterated, an ICE hold in and of itself is not sufficient reason to detain someone in the jail.
Delta County Sheriff Mark Taylor and Gunnison County Sheriff John Gallowich also said the new law doesn’t change existing jail policy at their detention centers.
“If they have criminal charges and we have information they are illegal, we would call ICE and notify them. If ICE wants them, they need to be here before they are released. We don’t hold them strictly for ICE at this point,” Taylor said.
“Our position has long been that, certainly if on a warrant, we would detain, but that’s a warrant signed by a judge. It (HB1124) is not changing our policy, based on what our practice has been in the past,” Gallowich said.
“We followed our policy. It’s pretty much in line with what the law is dictating we do. We have been following the court rulings that we could not hold someone on (only) a detainer.”
Masters and other lawmen reiterated that county sheriffs are not charged with enforcing federal immigration law.
ICE could indeed simply the situation by seeking a warrant, Lillard and the others said, concurring with Masters.
“If they were able to get a warrant and go through the judicial system like we would when we’re arresting somebody, that would solve a lot,” said Lillard.
ICE and the Department of Homeland Security have declined to take the extra step of obtaining a warrant — not just an order issued by a hearing officer — for the individuals they seek, Masters said.
“If we hold somebody, then we were getting sued and the DOJ refused to defend us for doing their job,” he said.
“… It’s really clear, the Fourth Amendment. I don’t understand why ICE can get away with it. It’s pretty clear you’ve got to have a warrant.”
The sheriffs saw little issue in HB1124’s provisions for advising inmates about ICE interviews, although Masters said that burden should fall to the person conducting the interview, not just the facility where an inmate is being held.
The one rub Masters sees in the new law is that it takes away some flexibility. In the past, he could technically choose to keep an inmate in custody until ICE could arrive, if he felt public safety warranted doing so.
“We can’t stop him (a dangerous inmate) from walking out the door if ICE isn’t here. There are two sides to that coin. Sometimes, it’s that local person who has lived here a long time; other times, it might be a real criminal,” Masters said.
“This law will cement our policy. We have to follow the law. Prior, I could have a policy that basically said that, but if public safety required me to do something different, I would have done something different.”
Immigration status alone does not make a person dangerous, Masters stressed.
“There are a lot of people who are very good individuals. I strongly believe they need to come here legally and become documented, and not crash our borders. There are some very good people who are in San Miguel County that are very hardworking and they are trying to better their lives, but they need to be here legally, bottom line,” he said.
Masters also said many people who illegally cross the border do so because they are desperate.
“I’m not sure what the perfect system is, but there has to be reform. Let people come into the country legally and return legally. I hope we get good immigration reform in the country some day,” he said.
Taylor said he can’t speculate on what individual circumstances may arise with inmates in his jail.
“It’s our job to provide public safety, but the law is the law and if we don’t have a reason to hold them, we have to release them,” he said.
“That goes for any crime, for anybody, not just illegal immigrants. People have a right to bond. If we don’t have proper authority to hold them, then we don’t hold them.”
Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.