Apr. 7—Less than two months after a district judge ruled in favor of Teller County Sheriff Jason Mikesell in a lawsuit protesting his enforcement of federal immigration law, the case is headed back to the Colorado Court of Appeals.

The case has been revived after the American Civil Liberties Union of Colorado on Thursday filed to appeal Teller County District Court Judge Scott Sells' Feb. 22 ruling that Mikesell to hold undocumented inmates after they posted bond.

"We're appealing because we think the lower court got the law here very wrong," said Annie Kurtz, an attorney with the ACLU. "The program is not compatible with the Colorado constitution or Colorado statutes."

According to court documents, the Teller County Sheriff's Office entered into an agreement with the U.S. Immigration and Customs Enforcement in early 2019 that would enable deputies to carry out immigration-related duties while assigned to the jail or correctional facilities. It was known as a 287(g) agreement, based on the provision in federal law allowing individuals to perform the work of an immigration officer.

But that same year, the ACLU filed the lawsuit on behalf of six plaintiffs: Teller County residents Berck Nash, Joanna Nash, Rodney Saunders, Paul Michael Stewart, Janet Gould and Darlene Schmurr-Stewart. Schmurr-Stewart is no longer listed as a plaintiff in the most recent filing.

The lawsuit claimed that Mikesell violated a statute signed into law by Gov. Jared Polis in May 2019, which bars local police agencies from honoring ICE requests to hold inmates beyond their scheduled release dates so that they can be picked up by federal agents. The lawsuit also claimed that the 287(g) agreement uses taxpayer money illegally.

The lawsuit was the first of its kind in the nation alleging that a sheriff violates state law by participating in a 287(g) agreement, according to previous reporting by The Gazette.

In April 2020, Judge Sells dismissed the case on procedural grounds, saying the program doesn't use taxpayer money and therefore the plaintiffs have no basis to sue. In 2022, the Court of Appeals reversed and sent the case back to the district court for trial. The trial was held in January, with Sells again presiding and ultimately ruling in favor of the sheriff.

In the ruling, Sells stated that sheriff's deputies who function under the 287(g) agreement as Designated Immigration Officers do not arrest or detain individuals on a civil immigration detainer request, but rather do so by serving a valid federal arrest warrant issued by an ICE officer.

As a result, he said, the DIOs are de facto federal officers under the supervision of ICE and their actions are lawful and consistent with Colorado law, and that the agreement is a function of the sheriff's duty to preserve the peace.

With the ACLU's appeal filed Thursday, a three-judge panel with the Colorado Court of Appeals will now consider whether Sells erred in that ruling, as asserted by the appeal. If it sides with the plaintiffs, the last 287(g) agreement in the state would end and "no one will have to be harmed by these programs in Colorado anymore," Kurtz, the ACLU attorney, said.

"Although the Teller County Sheriff is the only sheriff in Colorado operating these programs, there are plenty of them causing a great deal of harm around the country," she added. "So, the case is impactful beyond the borders of our state."

Paul Hurcomb, one of the attorneys representing Mikesell, said in a written statement to The Gazette that he is "confident" Sells' ruling will be upheld, saying the judge's 26-page order was "very well-reasoned" and that the ACLU "has distorted the facts of this case and operation of" Mikesell's 287(g) agreement.

"The (agreement) is a Jail Enforcement Model, so the authorized functions all take place in the jail and are designed to enhance public safety by reducing the number of criminal noncitizen offenders released back into the community," Hurcomb said.

"The judge concluded that the Sheriff's program is consistent with his duty to preserve the peace and noted that the Plaintiffs' preferred procedure for making ICE arrests gives no consideration for the safety of the inmate, family, ICE Officers, Sheriff's deputies, or the public," he said.

According to Kurtz, the ACLU will now ensure documents from the lower court's ruling make it to the appellate court and attorneys will submit opening briefs, which could be due by mid- to late summer.