Cisneros v. Elder, 19CA0546

Docket Nº19CA0546
Citation2022 COA 106
Case DateSeptember 15, 2022
CourtCourt of Appeals of Colorado

2022 COA 106

Saul Cisneros, Plaintiff-Appellee,

Bill Elder, in his official capacity as Sheriff of El Paso County, Colorado, Defendant-Appellant.

No. 19CA0546

Court of Appeals of Colorado, Fourth Division

September 15, 2022


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.


Prior Opinion Announced November 19, 2020, Reversed in 21SC6

El Paso County District Court No. 18CV32870 Honorable Eric Bentley, Judge

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




¶ 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


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.


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...

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