Pikes Peak rises above downtown Colorado Springs. Access to the mountains makes Colorado a desirable place to live. (Mark Reis, Special to The Colorado Sun)

By Kathleen Foody, The Associated Press

A Colorado sheriff’s practice of continuing to jail people suspected of being in the country illegally on behalf of federal authorities is unconstitutional, a judge said as he barred the office from honoring the so-called “detainer” requests.

District Court Judge Eric Bentley ruled late Thursday that El Paso County Sheriff Bill Elder has no authority under state law to hold people once they have posted bond, completed a sentence or otherwise resolved their state case.

Courts in several states have ruled that sheriffs cannot hold people on behalf of U.S. Immigration and Customs Enforcement without violating the 4th Amendment protection against unreasonable search and seizure.

The Colorado American Civil Liberties Union filed the lawsuit in February on behalf of two people who attempted to post bond but were told they would not be released because of a request from federal immigration authorities. The ACLU later expanded the El Paso County lawsuit to cover all current and future jail inmates.

“Federal immigration authorities cannot order, and are not ordering, Sheriff Elder to hold inmates beyond the term of their release,” Bentley wrote. “They are merely requesting that he do so. Whether he does so is his choice, and it is he who is legally responsible for the decision.”

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Elder argued that the 48-hour holds should not be considered a new arrest, but the judge disagreed. Bentley also rejected Elder’s claim that complying with ICE’s requests makes El Paso County safer.

He noted all but two Colorado counties stopped honoring the requests in 2015 at the ACLU’s urging.

“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,” he wrote.

Elder’s spokeswoman, Jacqueline Kirby, said he plans to appeal the ruling. She declined further comment about ongoing litigation.

The sheriff’s office has said it stopped honoring immigration authorities’ requests in March, when Bentley ordered a temporary halt during the lawsuit.

Court records say the sheriff’s office still notifies immigration authorities when someone who may be in the country illegally is about to leave the jail. The judge said Elder can continue those notifications.

Courts across the country are facing similar questions, prompting the Trump administration to begin a test program in Florida this year in hopes of shielding law enforcement agencies from lawsuits. The program contracts local jails to hold immigrants for up to 48 hours on behalf of U.S. Immigration and Customs Enforcement.

One of the 17 agencies participating in Florida was sued this week by a U.S. citizen, detained on behalf of federal agents who reported the man may be eligible for deportation to Jamaica. The lawsuit accused the Monroe County Sheriff’s Office of violating the man’s constitutional rights.

In Colorado, the ACLU is suing a second sheriff’s agency for its compliance with immigration authorities’ requests. A Teller County judge in August declined to order a temporary halt to the sheriff’s practice; the lawsuit is pending.

“Clearly, the issues are ones on which reasonable minds may differ,” Bentley wrote in his decision. “Resolution of one of these cases by a higher court is needed in order to provide certainty in this area to Colorado’s sheriffs and the immigrant population.”

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