Colorado Supreme Court on ICE Detainers: Cisneros v. Elder

Cisneros v. Elder

"In this case, the supreme court considers whether section 24-10-106(1.S)(b), C.R.S. (2021), of the Colorado Governmental Immunity Act ("CGIA") waives sovereign immunity for intentional torts that result from the operation of a jail for claimants who are incarcerated [such as per an ICE detainer] but not convicted. The court now concludes that section 24-10-106(1.S)(b) waives immunity both for intentional torts and for acts of negligence resulting from the operation of a jail for claimants who are incarcerated but not convicted. In reaching this determination, the court concludes that the statutory language waiving immunity for claimants who "are incarcerated but not yet convicted" and who "can show injury due to negligence" sets a floor, not a ceiling. Accordingly, the court reverses the judgment of the division below and remands for further proceedings consistent with this opinion. ... Cisneros ... filed the instant action against Sheriff Elder, in his official capacity, alleging that Cisneros’s pretrial detainment [on an ICE detainer] constituted false imprisonment and seeking damages. Sheriff Elder responded by moving to dismiss the complaint under C.R.C.P. 12(b)(1), asserting that the CGIA immunized him from liability. The district court ultimately denied Sheriff Elder’s motion, concluding that Cisneros’s claim of false imprisonment falls within the CGIA’s waiver of immunity for injuries resulting from the operation of a jail under section 24-10-106(1.5)(b), which allows claims asserted by claimants who are “incarcerated but not yet convicted” if such claimants “can show injury due to negligence.” ... In a split, published decision, another division of the court of appeals reversed the district court’s order, agreeing with Sheriff Elder that the waiver of governmental immunity in section 24-10-106(1.5)(b) applies only to negligent conduct that results in injury and does not provide a remedy for intentional misconduct. Cisneros v. Elder, 2020 COA 163M, ¶¶ 4, 39–40, 490 P.3d 985, 986, 990. ... [W]e conclude that section 24-10-106(1.5)(b) waives immunity both for intentional torts and for acts of negligence resulting from the operation of a jail for claimants who are incarcerated but not convicted.  Accordingly, we reverse the judgment of the division below and remand for further proceedings consistent with this opinion."

[Hats off to Mark Silverstein, Arielle Herzberg and my good friend Stephen G. Masciocchi!]