El Paso County to pay $25,000 to man detained for alleged immigration violations after posting bond

Mar. 17—After five years of litigation and multiple Colorado Court of Appeals and Supreme Court rulings that former El Paso County Sheriff Bill Elder could be sued for the intentional detention of a man after he posted bond, the county will pay $25,000 in damages, the American Civil Liberties Union of Colorado announced in a release Friday.

According to the ACLU, which represented plaintiff Saul Cisneros, El Paso County Attorney Kenny Hodges made the formal offer of judgment sum, which Cisneros accepted. The court formally entered judgment on Thursday, ending a five-year legal battle for compensation.

"Unlike out-of-court settlements in which the defendant admits no liability, an offer of judgment allows a formal court judgment to enter against Sheriff Elder, in his official capacity as Sheriff of El Paso County," ACLU of Colorado Legal Director Mark Silverstein said in the release. "After a five-year wait ... our client was happy to resolve this lawsuit to avoid what could have been a delay of several additional years of litigation."

Saul Cisneros entered the El Paso County jail following his arrest in November 2017. Four days later, his daughter posted a $2,000 bond, according to past Gazette reporting. However, U.S. Immigration and Customs Enforcement had issued an immigration detainer and administrative warrant asking the jail to hold him in order for federal authorities to take him into custody on suspicion of being in the country illegally. Neither document had a judge's signature, and the request was for a 48-hour detention.

Nevertheless, Elder continued to detain Cisneros in custody for four more months. Cisneros sued Elder in 2018 for false imprisonment, and the former sheriff lost a motion to dismiss in El Paso County District Court in 2020.

But Elder appealed to the Court of Appeals, arguing that the Legislature clearly intended to immunize him for keeping Cisneros jailed on an immigration hold far beyond ICE's legal 48-hour window. He prevailed before a panel of appellate judges, who determined the Colorado Governmental Immunity Act only permits pretrial detainees to sue for actions "due to negligence." Because Elder intentionally held Cisneros in jail, the appellate panel's two-member majority believed the sheriff's actions made him immune from liability.

Judge David J. Richman, who dissented at the time, called that interpretation literal but illogical, and argued in favor of allowing the lawsuit to proceed.

Cisneros then appealed to the state Supreme Court, arguing it was nonsensical to think that a sheriff could only be held liable for negligently violating a person's rights, but not if he made the conscious decision to do so.

In March 2021, the Supreme Court ruled in favor of Cisneros on the belief that negligent conduct should be the minimum type of behavior subject to civil liability, reviving the lawsuit.

"As a result, defendants sued for injuries resulting from the operation of a jail could successfully defend against liability by claiming that they did not accidentally cause the plaintiff injury but rather they meant to harm the plaintiff," wrote Judge Richard L. Gabriel. "In our view, such a result would be absurd."

The case returned to the Court of Appeals in September, where Richman again rejected the sheriff's remaining argument left unaddressed in the Supreme Court's decision: whether Cisneros' prolonged detention was due to Elder's operation of the jail. According to Richman, that decision not to release an inmate who has posted bond lies "at the heart" of a sheriff's duties and is directly related to jail operations.

Since Cisneros' detention, Gov. Jared Polis signed a bill in 2019 that now bars state law enforcement officials from detaining people based solely on federal immigration warrants lacking a judge's signature.