Colorado Counties and Sheriffs Sue State over Sanctuary Laws

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April 22, 2024

FAIR Staff

FAIR Take | April 2024

The State of Colorado last week was served with a lawsuit by two Colorado counties, Douglas and El Paso, and their respective sheriffs, seeking to strike down two state laws for illegally interfering with federal immigration enforcement laws. Darren Weekly is the elected Sheriff of Douglas County, Colorado Joseph Roybal is the elected Sheriff of El Paso County, Colorado.

The first law being challenged is House Bill (H.B.) 19-1124, which was signed into law by Governor Jared Polis in May 2019. This law prohibits Colorado law enforcement officers from honoring ICE detainers. It also prohibits probation employees from providing personal information about individuals to federal immigration authorities.

The second law being challenged is H.B. 23-1100, which became effective in June 2023. That law bans local governments, including county sheriffs, from contracting with the federal government to detain aliens.

Douglas and El Paso Counties, and their respective sheriffs, Sheriff Darren Weekly and Sheriff Joseph Roybal, claim these laws violate both the state Constitution and the U.S. Constitution.

With respect to the state constitution, they claim that the provisions in H.B. 19-1124 and 23-1100 that ban contracting with government for officials for the detention of aliens and prohibit local law enforcement from honoring detainers violate Article 14, §18 of the Colorado Constitution.

That section states:

(2)(a) Nothing in this constitution shall be construed to prohibit the state or any of its political subdivisions from cooperating or contracting with one another or with the government of the United States to provide any function, service, or facility lawfully authorized to each of the cooperating or contracting units, including the sharing of costs, the imposition of taxes, or the incurring of debt… .

(c) Nothing in this constitution shall be construed to prohibit any political subdivision of the state from contracting with private persons, associations, or corporations for the provision of any legally authorized functions, services, or facilities within or without its boundaries.

In addition, the counties and sheriffs claim the same provisions violate the Supremacy Clause of the U.S. Constitution, found in Article 6 Clause 2, which provides that federal law is “the supreme Law of the Land” and thus it preempts all state laws contrary to it.

Plaintiffs argue that federal law, specifically, 8 U.S.C. 1324, which prohibits anyone from concealing, harboring or shielding illegal aliens from detection trumps the provisions in H.B. 19-1124 and 23-1100 and thus they must be struck down. [Interestingly, the plaintiffs did not, but likely could have also claimed that the two state laws violate 8 U.S.C. 1373, which prohibits states and localities from sharing a person’s immigration information with federal immigration authorities.]

Douglas county has been particularly active in trying to tackle the immigration crisis that has landed at its doorstep. In October 2023, the County passed a resolution declaring it was not a sanctuary jurisdiction. It also passed another ordinance in March 2024 prohibiting commercial buses from making unscheduled drop-offs of illegal aliens in the county. It has also formally asked Denver Mayor Mike Johnston to support a repeal of the two state laws that are the focus of its legal action.

In a news release announcing the lawsuit, Douglas County Commissioner George Teal said it was imperative that counties work with federal immigration officials to address the crisis at the border. “There is an illegal immigration crisis in America,” Teal said. “We have been proactive, taking steps to mitigate the crisis here in Douglas County, Colorado. What has been missing is the ability of our local law enforcement agencies to work with immigration officials. This is what we seek to solve through this legal action.”

Douglas County Commissioner Lora Thomas said the county must start putting citizens first. “The national migrant crisis has forced Denver to continue to cut local services for residents. We have an obligation first to our citizens, and we see what’s happening in Denver as a warning sign to be proactive here in Douglas County,” said Thomas. “Unfortunately, since the federal government has not taken action at the border, this legal action is now necessary for the preservation of public welfare, health and safety of our local community.”

Next, it will be up to the State of Colorado and Governor Jarid Polis to defend the laws. Once a formal response is filed, the case will be headed to court for preliminary hearings. For the moment, however, the Governor’s office has refused to comment on the lawsuit. “The Governor’s Office will not comment on pending litigation,” a spokesperson for Polis said.

Stay tuned to FAIR for developments as they unfold.