Cisneros v. Elder

• Decision Date: 19 November 2020
• Docket Number: Court of Appeals No. 19CA0546
• Citation: 490 P.3d 985
• Court: Colorado Court of Appeals
• Parties: Saul CISNEROS, Plaintiff-Appellee, v. Bill ELDER, in his official capacity as Sheriff of El Paso County, Colorado, Defendant-Appellant.

490 P.3d 985

Saul CISNEROS, Plaintiff-Appellee,

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

Court of Appeals No. 19CA0546

Colorado Court of Appeals, Division IV.

Announced November 19, 2020

As Modified on Denial of Rehearing December 17, 2020

Holland & Hart LLP, Stephen G. Masciocchi, Peter A. Kurtz, Denver, Colorado; Mark Silverstein, Arielle Herzberg, Denver, Colorado, for Plaintiff-Appellee

Diana K. May, County Attorney, Mary Ritchie, Assistant County Attorney, Colorado Springs, Colorado, for Defendant-Appellant

Opinion by JUDGE TERRY

¶1 Plaintiff, Saul Cisneros, is no longer being held in jail by defendant, Bill Elder, the Sheriff of El Paso County. In this action, Cisneros seeks money damages for having been wrongfully held there.

¶2 State and local governmental entities in Colorado, including jails and the people who run them, are generally immune from being sued. Cisneros chose to sue for false imprisonment, and gave notice of his intent to sue as required by the Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to - 120, C.R.S. 2020, which waives sovereign immunity — in other words, allows suit against governmental entities and public employees — under specified circumstances. If there is not a statute that gives a right to sue a governmental entity or employee, a plaintiff's suit against the entity or employee must be dismissed.

¶3 In this case, Cisneros argued that a statute that allows suit to be brought against Elder for negligence also allowed Elder to be sued for intentional conduct — specifically, the decision to keep Cisneros imprisoned even though his daughter had posted bond to secure his conditional release. The district court read the pertinent provision of the CGIA to permit the suit to go forward against Elder.

¶4 We reverse this decision for a simple reason: "negligence" means negligence; it does not mean intentional conduct. The General Assembly never meant for section 24-10- 106(1.5)(b) of this statute to apply to intentional conduct. Because we are bound by the General Assembly's legislative intent in enacting the pertinent provision, we must reverse the district court's decision.

¶5 While this appeal was pending, Cisneros amended his complaint to allege an additional claim for violation of his civil rights under 42 U.S.C. § 1983 (2018). Our decision of this appeal does not affect the viability of that civil rights claim.

I. Background

¶6 Under federal law, Immigration and Customs Enforcement (ICE) may request that state or local law enforcement continue detaining an inmate after the state's authority to imprison that inmate has expired. Such a request is made when ICE believes that an inmate may be removable from the United States. This continued detainment, often referred to as an "ICE hold," gives ICE officials time to take the inmate into federal custody.

¶7 Elder created a written policy and practice of complying with requests for ICE holds. Upon receipt of either an ICE immigration detainer or administrative warrant, he would continue to detain inmates who had posted bond, completed their sentence, or otherwise resolved their criminal case.

¶8 Cisneros was arrested and detained at El Paso County's Criminal Justice Center. After his daughter posted the $2,000 bond set by the court, Cisneros was not released from custody. Instead, Elder placed an ICE hold on Cisneros and continued to detain him for four additional months.

¶9 Cisneros and another person brought a class action lawsuit in state court against Elder seeking declaratory, mandamus, and injunctive relief. The complaint in that case alleged that by continuing to detain inmates after they had posted bond or completed their sentence, Elder exceeded his authority under state law.

¶10 After a preliminary injunction was granted in that case, Cisneros was released from custody. Cisneros then brought this lawsuit against Elder, alleging that his continued detainment constituted false imprisonment. Elder moved to dismiss Cisneros's complaint under C.R.C.P. 12(b)(1), asserting that he is immune from liability under the CGIA. After concluding that any immunity had been waived because Cisneros's alleged injury occurred during Elder's operation of a jail, the district court denied Elder's motion.

II. CGIA's Waiver of Immunity for the Operation of a Jail Does Not Apply to Intentional Torts

¶11 Elder contends that the district court erred by concluding that the CGIA's waiver of governmental immunity for the operation of a jail applies to injuries caused by intentional torts. We conclude, based on the statute's language and legislative history, that section 24-10-106(1.5)(b), C.R.S. 2020, does not waive immunity for injuries caused by intentional torts.

A. Preservation and Standard of Review

¶12 Elder preserved this issue for appeal.

¶13 Governmental immunity implicates issues of subject matter jurisdiction, which are determined in accordance with C.R.C.P. 12(b)(1). Swieckowski v. City of Fort Collins , 934 P.2d 1380, 1383-84 (Colo. 1997). If 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, 327 P.3d 891. Here, because the relevant facts are undisputed and the district court's holding turns on its interpretation of the CGIA, our review is de novo. See Fogg v. Macaluso , 892 P.2d 271, 273 (Colo. 1995) (the construction of a statute is a question of law subject to de novo review).

B. The CGIA's Partial Waiver of Governmental Immunity for Injuries Resulting from Negligence in the Operation of a Jail

¶14 Under the CGIA, "[a] public entity shall be immune from liability in all claims for injury which" lie or could lie in tort. § 24-10-106(1). Immunity is waived in actions for injuries resulting from a public entity's or employee's operation of a jail or correctional facility. § 24-10-106(1)(b). But that waiver only applies when a claimant "who [is] incarcerated but not yet convicted ... can show injury due to negligence." § 24-10-106(1.5)(b). The issue here — whether the phrase "injury due to negligence" includes injuries that result from intentional torts — is one of first impression.

C. Construction of the Statutory Immunity Waiver

¶15 In construing a statute, our primary purpose is to ascertain and give effect to the legislature's intent. McCoy v. People , 2019 CO 44, ¶ 37, 442 P.3d 379. To do this, we first look to the language of the statute, seeking to give its words and phrases their plain and ordinary meanings. Id. In so doing, we consider "the statute as a whole, construing each provision consistently and in harmony with the overall statutory design." Whitaker v. People , 48 P.3d 555, 558 (Colo. 2002).

¶16 If a statute is clear and unambiguous, we need look no further than the plain language to determine the statute's meaning. McCoy , ¶ 37.

¶17 But if the statute is ambiguous, we may consider other factors, including canons of statutory construction and legislative history. Id. ; Hotsenpiller v. Morris , 2017 COA 95, ¶ 2, 488 P.3d 219 ; § 2-4-203, C.R.S. 2020; see also People v. Butler , 2017 COA 117, ¶¶ 23-25, 431 P.3d 643 (a statute is ambiguous if it is susceptible of more than one reasonable understanding). And "the reasons for and the significant circumstances leading up to the enactment [of a law] may be noticed in confirmation of the meaning conveyed by the words used." United States v. Mo. Pac. R.R. Co. , 278 U.S. 269, 278, 49 S.Ct. 133, 73 L.Ed. 322 (1929).

1. Section 24-10-106(1.5)(b) ’s Plain Language

¶18 Cisneros contends that section 24-10-106(1.5)(b) can be read as encompassing intentional torts because the statute does not say that the CGIA's waiver applies only if the claimant can "show injury due to negligence," and that the statute "sets a floor, not a ceiling," for imposing liability. This argument is refuted by the statutory language.

¶19 Section 24-10-106(1.5)(b) states that, for the operation of a jail, sovereign immunity is waived if a pretrial detainee can show "injury due to negligence ." Id. (emphasis added). This provision makes no reference to intentional actions or intentional torts. Instead, the sole focus is on negligence.

¶20 The inclusion of certain items implies the exclusion of others. Cain v. People , 2014 CO 49, ¶ 13, 327 P.3d 249 (discussing the legislative interpretation canon, expressio unius est exclusio alterius ), as modified (July 2, 2014). Because the plain language of section 24-10-106(1.5)(b) references only negligence, the waiver of sovereign immunity under that provision must be read as applying only to injuries caused by negligence, and not to injuries caused by intentional torts. See Cain , ¶ 13 (holding, based on the canon of expressio unius , that the General Assembly's inclusion of "a single, specific, narrow exception" meant that the General Assembly intended "that there be no other exceptions" to the statute); see also Dubois v. Abrahamson , 214 P.3d 586, 588 (Colo. App. 2009) (appellate courts may not read additional terms into, or modify, a statute's explicit language).

¶21 Governmental immunity can only be waived by express statutory provision. Pack v. Ark. Valley Corr. Facility , 894 P.2d 34, 37 (Colo. App. 1995) (if no express waiver of immunity has been granted, a court may not imply such a waiver). Simply put, unless the legislature has created liability by statute for a given type of governmental conduct, governmental entities are immune from suit.

¶22 Because sovereign immunity for the operation of a jail is waived only when an inmate's injury is the result of negligence, we must conclude that the waiver of immunity under section 24-10-106(1.5)(b) does not apply to injuries caused by intentional torts.

¶23 The only claim at issue in this appeal is Cisneros's claim for false imprisonment, and in that claim, he asserts only intentional conduct — namely, that Elder ...