The city of Durango has filed a lawsuit against La Plata County Sheriff Sean Smith for refusing to house municipal offenders at the La Plata County Jail.
The 29-page lawsuit filed in La Plata Combined Courts said Smith’s refusal to jail municipal inmates lacks legal authority and his actions are “arbitrary and capricious.”
The lawsuit seeks several outcomes, including declaratory judgments about the sheriff’s legal authority to accept and reject prisoners, and a temporary restraining order and preliminary and permanent injunctions prohibiting the sheriff from refusing to jail municipal inmates.
In short, the city of Durango is turning to La Plata County District Court to settle the question of whether the sheriff has the authority to refuse to house inmates sentenced to jail on municipal charges.
City Attorney Mark Morgan is adamant the sheriff does not have legal discretion to pick and choose who is accepted into the jail. He said state statute is clear a jail must accept any inmate duly committed by a judge to serve time in it, whether that judge serves a municipal, state or district court.
“I’m pretty disappointed that it has come to this,” Smith said on Thursday. “I personally led efforts with reaching out to elected officials at the city of Durango to try to bring this down to earth so we wouldn’t get to this point.”
He said refusing to jail municipal inmates poses no threat to public safety and city police officers have the discretion to file municipal or state charges, and people facing state charges will be accepted at the jail.
“I look forward to the court agreeing with our legal interpretation,” he said.
County Manager Chuck Stevens said the county is comfortable in its legal authority to refuse to accept municipal inmates into the jail. As a matter of public safety, he also said if a municipal offender presents a threat to public safety, they can be jailed on an applicable state charge.
“If there’s a threat to public safety, there is a charge and that individual will go to jail,” he said. “At the same time, the city’s got to take some responsibility for overseeing its programs and handling purely municipal court offenses.”
Morgan said the city’s primary goal is to provide services, not to incarcerate people on high-level charges. Although municipal offenses are low-level crimes, they can still have high impacts on others. Jail is a useful early intervention tool to prevent that from happening.
He said an incident last week involving someone breaking into and trashing an emergency warming shelter west of Durango on U.S. Highway 160 is an example of how the sheriff’s refusal to jail municipal inmates is interfering with the city’s ability to deliver social support services.
“We could have delivered those (services) had that person been held over on a municipal charge and brought in front of the municipal court judge,“ he said.
Instead, he said, the center temporarily closed and people who would shelter there were left out in the cold.
Durango Police Department has attempted to deliver two people to the jail since it stopped receiving municipal offenders at midnight on Dec. 31.
One person was a municipal offender who was charged with assault. Another person was arrested on a county charge who also had an outstanding municipal warrant. He was accepted into the jail, but police officers were told when bail on his county charge is paid, he won’t be held on his municipal warrant, Morgan said.
“There was a statutory charge that could have been applied and that person could have been put in jail that day under a statutory charge if there was truly a public safety concern,” Smith said.
Morgan said the municipal offenders were given court summons dressed like parking tickets in yellow envelopes and released from custody.
Stevens said the county and the city have the shared goal of public safety and the county respects the city’s goal to establish an effective program to handle municipal offenses. But the county must also prioritize its statutory obligations and the safety of county inmates and staff.
“They could operate in (the city’s) own jail facility if they want to do that to support its own program,” he said. “Obviously, we’re disappointed that we’ve chosen litigation over negotiations. That said, we stand firm in our legal position and we’re confident in our authority to manage jail operations responsibly.”
DPD has two jail cells in its headquarters at 990 East Second Ave. Police and city officials have long complained about the cramped quarters and outdated facilities. The city will ask voters in an April election to approve a 30-year extension of a 2005 sales tax that would fund construction and renovation of a new city hall and police department.
In response to an ultimatum issued to the county by Durango City Council, which gave the county the options to temporarily extend an intergovernmental jail agreement with the city or settle the jail issue in court and pay 911 administrative fees, Stevens said last week the county would prefer to continue toward an intergovernmental agreement both parties can work with. But he added involvement of the courts might be necessary to work things out.
On Wednesday, he said he stands by that statement.
“It could just be that (the) city and county are (at an) impasse and we need an impartial third party to come in and provide clarification, interpretation of the documents and settle our differences,” he said.
The city of Durango’s lawsuit cites several state statutes it said demonstrates the sheriff does not have the authority to refuse to accept municipal offenders into the jail.
One such statute is Colorado Revised Statute 30-10-515, which said a sheriff “shall serve and execute, according to law, all processes, writs, precepts, and orders issued or made by lawful authority and to him directed, and shall serve the several courts of record held in his county.”
The city’s motion for a restraining order also lists 14 items as grounds for a restraining order that would prohibit the sheriff from refusing inmates into the jail.
Damien Billsie, who died from exposure to the cold in Durango on Dec. 15, 2023, is described in the motion as a known petty offender who never appeared in municipal court for over 40 outstanding municipal cases. The motion said if he’d appeared in municipal court, he would have received services that might have prevented his death.
Kristie Boughan’s name also appears in the motion, which said she stacked up over 100 municipal citations for petty offenses; she was sentenced to 45 days in jail, became sober and received mental health services while in the jail’s custody.
“She is alive today because of the municipal court’s intervention in her self-destructive pattern of behavior,” the motion said.
The motion also describes policies such as 48-hour bench warrants, mental health services and substance abuse services that are not effective without an effective enforcement mechanism – the jail.
An objection to the restraining order filed in La Plata County District Court by Smith said the city took some statutes out of context; failed to cite others; suggested alternative outcomes in cases such as Billsie and Boughan are speculative; some events were characterized and give a “false sense of urgency”; and there is no irreparable injury that jailing municipal inmates would prevent.
The objection also said, according to state statute 31-15-401, municipalities require a board of county commissioner’s consent to house municipal inmates in a county jail.
cburney@durangoherald.com
