Teller County Sheriff Jason Mikesell has submitted a motion to dismiss a lawsuit filed against him by the ACLU on behalf of six residents: Berck and Joanna Nash, Rodney Saunders, Darlene Schmurr-Stewart, Paul Michael Stewart and Janet Gould.

At issue is the plaintiffs’ objection to the 287 (g) agreement Mikesell signed with Immigration and Customs Enforcement. The agreement, extended through June 30, 2020, includes training of three deputies by ICE to function as immigration officers.

According to the sheriff’s motion, the plaintiffs argue they “have a protected legal interest in preventing the expenditure of taxpayer funds for unconstitutional activities and an unconstitutional program.”

In filing the motion, Mikesell argues that there are three reasons the complaint should be dismissed:

1. Plaintiffs lack taxpayer standing because “no taxpayer funds are spent, or will be spent, on deputies who work for the Teller County Jail Enterprise, which includes the three deputies who will be trained and certified under the 287(g) Agreement,” states the sheriff’s motion.

2. Federal law preempts state law in the field of immigration and a state court has no jurisdiction to rule on immigration matters that are federal in nature. “In enforcing immigration laws, the federal government works closely with state and local governments,” the motion states. The agreement is exclusively for immigrants who have been arrested for certain crimes such as DUI, domestic violence, theft or robbery.

3. Mikesell has the authority under state and federal law to enter into a 287 (g) agreement. According to the motion, the agreement is based on a section of the Immigration and Nationality Act that authorizes the formal cooperative agreement between ICE and local law enforcement. The plaintiffs argue that the authority of a Colorado sheriff is limited. Mikesell’s cooperation with ICE under the Jail Enforcement Model is directly tied to his statutory duty and his oath of office to support both the constitution of the United States and Colorado and the laws of Colorado, the motion states.

The crux of the argument is the source of the Jail Enterprise Fund. While plaintiffs argue that the fund includes taxpayer money, the defendant disagrees. The fund is supported entirely by fees paid by various entities for the services it provides, primarily housing inmates, whether local or for outside entities such as the United States Marshal Service, the Colorado Department of Corrections, or ICE, for instance.

An affidavit signed by Sheryl Decker, the county administrator affirms the position that the enterprise fund receives no taxpayer money. The Jail Enterprise Fund is a self-supporting government enterprise fund that sells services to various entities for a fee, Decker states in the affidavit.

The plaintiffs have until Aug. 23 to file a response and the county has two weeks from that date to reply. Teller County Attorney Paul Hurcomb represents the sheriff while Mark Silverstein and Arash Jahanian represent the plaintiffs.

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