The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 15, 2022
2022COA106
No. 19CA0546, Cisneros v. Elder — Government — Immunity
and Partial Waiver — Operation of a Jail or Correctional
Facility
A division of the court of appeals considers whether a county
sheriff who denied a detainee’s release from jail after the detainee
posted bond in order to comply with a hold placed on the detainee
by U.S. Immigration and Customs Enforcement was engaged in the
operation of a jail under section 24-10-106(1)(b), C.R.S. 2021. The
division concludes that he was.
COLORADO COURT OF APPEALS 2022COA106
Court of Appeals No. 19CA0546
El Paso County District Court No. 18CV32870
Honorable Eric Bentley, Judge
Saul Cisneros,
Plaintiff-Appellee,
v.
Bill Elder, in his official capacity as Sheriff of El Paso County, Colorado,
Defendant-Appellant.
ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE RICHMAN
Johnson and Casebolt*, JJ., concur
Prior Opinion Announced November 19, 2020, Reversed in 21SC6
Announced September 15, 2022
Holland & Hart LLP, Stephen G. Masciocchi, Peter A. Kurtz, Alexandria E.
Pierce, Denver, Colorado; Mark Silverstein, Denver, Colorado, for Plaintiff-
Appellee
Diana K. May, County Attorney, Mary Ritchie, Assistant County Attorney,
Colorado Springs, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
¶1 This case has been remanded from the supreme court
pursuant to its opinion in Cisneros v. Elder, 2022 CO 13M. The
supreme court had granted certiorari
to consider whether the division below erred in
concluding that section 24-10-106(1.5)(b),
C.R.S. (2021), of the Colorado Governmental
Immunity Act (“CGIA”) does not waive
sovereign immunity for intentional torts that
result from the operation of a jail for claimants
who are incarcerated but not convicted.
Id. at ¶ 1.
I. Background
¶2 A division of this court had concluded that the defendant,
Sheriff Bill Elder, was immune from the claim of the plaintiff
detainee, Saul Cisneros, for false imprisonment under the CGIA
because the complaint alleged an intentional tort, and the CGIA
only allows a waiver of immunity for negligence.1 Judge Richman
dissented from the majority and concluded that the CGIA waived
immunity for intentional, as well as negligent, torts. Cisneros v.
Elder, 2020 COA 163M, ¶¶ 54-77. In reversing the division’s
1Judge Diana Terry authored the majority opinion. Since issuance
of that opinion and the supreme court’s opinion and remand, Judge
Terry has retired from the court of appeals. Judge Casebolt was
assigned by the Chief Judge to replace Judge Terry on this division.
1
majority opinion, the supreme court agreed with Judge Richman’s
dissent. The supreme court reasoned that the majority had
interpreted the CGIA too narrowly by excluding intentional torts
from the waiver of governmental immunity, which “would lead to an
absurd result.” Cisneros, 2022 CO 13M, ¶¶ 27-28. In his initial
appeal, the sheriff, in addition to arguing that the CGIA waiver of
immunity did not apply to intentional torts, had also argued that
the CGIA waiver of immunity did not apply in this case because
plaintiff had not demonstrated that his injury resulted from the
operation of a jail under section 24-10-106(1)(b).
¶3 Given its interpretation of the CGIA, the division’s majority did
not need to reach the sheriff’s second argument. The dissent,
however, did, and it determined that the district court correctly
concluded that plaintiff’s alleged injury resulted from the sheriff’s
operation of a jail.
¶4 With respect to the second issue, the supreme court said that
it would not reach it because it was not within the grant of
certiorari as set forth above. Cisneros, 2022 CO 13M, ¶ 36.
2
Therefore, the court remanded the case to us to address the
unresolved issue. Id. We do so now.2
II. Standard of Review
¶5 An issue of governmental immunity under the CGIA presents a
question of subject matter jurisdiction to be determined under
C.R.C.P. 12(b)(1). Maphis v. City of Boulder, 2022 CO 10, ¶ 13.
Because the CGIA immunity provisions derogate Colorado’s
common law, “we construe the [C]GIA provisions that withhold
immunity broadly [and] we construe the exceptions to these waivers
strictly.” Tidwell v. City & Cnty. of Denver, 83 P.3d 75, 81 (Colo.
2003) (quoting Corsentino v. Cordova, 4 P.3d 1082, 1086 (Colo.
2000)). Where, as here, “the relevant facts underlying a trial court’s
jurisdictional findings are undisputed and the issue presents a
question of law, then appellate review is de novo.” Daniel v. City of
Colorado Springs, 2014 CO 34, ¶ 10. This is because the remaining
question involves a question of statutory interpretation. Maphis,
¶ 15. When interpreting a statute, we must give effect to the
2 After remand, plaintiff filed a motion requesting a ruling on the
issue, and the sheriff filed a response in opposition to the motion.
Because the motion was unnecessary and our opinion resolves the
issues raised, we need not address it further.
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General Assembly’s intent; we do so by looking at the statute as a
whole, to give harmonious and consistent effect to all of its parts.
Id.
III. Analysis
¶6 The CGIA provides that sovereign immunity is waived for
injuries that result from the operation of a jail. The sheriff argues
that the conduct alleged in this case — that he refused to release
plaintiff (after plaintiff posted bond) to comply with a hold placed on
plaintiff by U.S. Immigration and Customs Enforcement — does not
come within the definition of operation of a jail. We disagree.
¶7 In pertinent part, the CGIA provides that
(1) A public entity shall be immune from
liability in all claims for injury which lie in tort
or could lie in tort . . . except as provided
otherwise in this section. Sovereign immunity
is waived by a public entity in an action for
injuries resulting from:
....
(b) The operation of any . . . correctional
facility . . . or jail by such public entity.
§ 24-10-106.
¶8 The statute then says that the waiver set forth in subsection
(1)(b) “does not apply to claimants who have been convicted of a
4
crime and incarcerated in a correctional facility or jail pursuant to
such conviction,” § 24-10-106(1.5)(a), but that it “does apply to
claimants who are incarcerated but not yet convicted of the crime
for which such claimants are being incarcerated,” § 24-10-
106(1.5)(b).
¶9 The statute defines “operation” as “the act or omission of a
public entity or public employee in the exercise and performance of
the powers, duties, and functions vested in them by law with
respect to the purposes of any . . . jail.” § 24-10-103(3)(a), C.R.S.
2021.
¶ 10 As a division of our court has interpreted the CGIA, “sovereign
immunity is waived only if the activity at issue relates to the
facility’s purpose.” Pack v. Ark. Valley Corr. Facility, 894 P.2d 34,
37 (Colo. App. 1995). Thus, in that case, it concluded that
maintenance of the visitors’ parking lot at a jail did not fall within
the “operation” of a correctional facility. Id.
¶ 11 We agree with the district court that the primary purpose of a
jail is to confine, safely and effectively, persons charged with crimes
and awaiting trial, or serving short sentences. Cf. id. (“The primary
purpose of a correctional facility is to confine safely and effectively,
5
for the duration of their sentence, persons convicted of crimes.”).
And there is no dispute that plaintiff was being held pending trial
and had not been convicted of the crime for which he was being
held.
¶ 12 Plaintiff alleges he suffered injury from being detained
unlawfully for almost four months after he had posted bond and
was entitled to be released. The sheriff disagrees, relying on
Howard v. City & County of Denver, 837 P.2d 255, 257 (Colo. App.
1992). There, a division of this court determined that a jail’s
pretrial investigative services to provide information to a court
about setting bail and executing warrants for arrest are not part of
the “operation of a jail.” But here, plaintiff alleges that he should
not have been “kept” in jail after posting bond, which raises a
question of whether the sheriff properly exercised his duty by
“safely detain[ing] every person duly committed thereto.” Id. We
hold that a sheriff’s determination not to release an inmate after the
inmate has properly posted bond lies at the heart of the sheriff’s
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duties and is related to the purpose and operation of a jail.3
Accordingly, we affirm the district court’s ruling that the sheriff in
this case is not immune from suit under section 24-10-106(1)(b).
IV. Conclusion
¶ 13 The order is affirmed, and the case is remanded to the district
court for further proceedings consistent with this opinion.
JUDGE JOHNSON and JUDGE CASEBOLT concur.
3Further, Colorado law now provides that “[a] law enforcement
officer shall not arrest or detain an individual on the basis of a civil
immigration detainer request.” § 24-76.6-102(2), C.R.S. 2021.
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