Protests for Jose

Jose Montelongo-Morales's family, friends and supporters protest his detainment in front of the Coconino County Sheriff's Office on Jan. 29.

The second lawsuit against Coconino County Sheriff’s Office policy of honoring ICE detainers has survived where last year's lawsuit on the topic was dismissed.

In early February, Immigration and Customs Enforcement dropped its detainer on Jose Montelongo-Morales, who is the focus of the lawsuit against Coconino County Sheriff Jim Driscoll and Coconino County Jail Commander Matt Figueroa.

The lawsuit concerns Coconino County Sheriff’s Office’s policy on ICE detainers, which are requests to local law enforcement agencies that ask the facility to hold people suspected of being undocumented for up to two days longer than what their local charges require.

John Masterson, an attorney for Driscoll and Figueroa, declined to comment but referred to their court filings. Masterson wrote in a court document that without the detainer, Montelongo lacks standing to continue the lawsuit. But Montelongo’s lawyers disagree, saying they will continue with the suit despite their opponent’s protests.

Billy Peard, a lawyer with the American Civil Liberties Union who joined lawyer Lee Phillips in representing Montelongo, explained that they hope to turn their lawsuit into a class action lawsuit. Class action lawsuits are meant for types of cases when an individual can act on behalf of a larger group, like people who are undocumented.

“This case has never been about just one person. It’s been about principle,” Peard said. “The principle that, from our perspective, someone who makes mistakes and makes nonviolent offenses locally should be dealt with through the traditional justice system like everyone else.”

Montelongo was originally held on charges including extreme DUI and marijuana possession. After the detainer was lifted, Montelongo had his bond paid for and was released from custody in mid-February.

Federal court

The case was moved from Coconino County Superior Court to federal court in late January by Masterson, in similar fashion to the first lawsuit. Moving the first lawsuit to the federal court led to its dismissal last August.

Phillips disagreed with the move in Montelongo's case, saying that the federal agency and federal laws were not the focus of their lawsuit.

“What is at issue is not ICE,” Phillips said. “The issue is the sheriff’s policy of detaining people, and does that violate Arizona state law?”

Driscoll's lawyers argued in federal court that Montelongo “artfully” avoided discussing federal law, according to federal court documents. But unlike the first lawsuit, Judge Roslyn Silver agreed with Montelongo’s stance and ruled that the case should be sent back to Coconino County Superior Court.

“Because the complaint filed in state court ‘was entirely founded on state law claims,’ subject matter jurisdiction does not exist and this case must be remanded,” Silver said.

Tactical allegations

Lawyers on both sides have accused the other of using “tactics” in the judicial system to achieve their goals.

When the lawsuit was originally filed, Montelongo’s lawyers had filed an emergency temporary restraining order that would prevent Montelongo from being deported during the case. They cited concerns from the previous detainer lawsuit.

“In that case the plaintiff was removed from the U.S. by ICE, rendering his claims moot, prior to any decision on the merits of his claims,” Phillips wrote. “Plaintiff urges this court not to allow the same result to occur in this case.”

Peard alleged that Driscoll's lawyers sent the case to federal court without reason and used their legal right to change judges once it returned to Coconino in an effort to stall a decision. The case will be overseen by Judge Mark Moran in Coconino County Superior Court. The hearing for the emergency temporary restraining order still has not occurred.

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Phillips believes Masterson has avoided the order because the agency fears a ruling could halt Coconino County Sheriff’s Office's ability to honor their ICE detainer requests.

“It furthers their goal to maintain the policy, so that for everybody else who goes through the jail like Jose, (they) can continue to be detained for the 48 hours so they can cooperate and collude with ICE,” Phillips said. “It would appear they are trying to find ways to avoid a decision.”

But Masterson wrote in court documents that Driscoll is simply acting in accordance with his job.

“Sheriff Driscoll does not pick and choose which laws he will enforce, but has taken an oath to enforce all laws and to protect the community from those who flaunt their deceptions and violate the law,” Masterson wrote.

Additionally, Masterson alleged in a court filing that Montelongo’s attorneys did not honor a settlement that they allege was agreed upon but not signed. They alleged that Montelongo was released before the settlement could be signed.

Peard confirmed that there were settlement negotiations that he portrayed as “advancing the interest” of their client.

Peard did not feel at liberty to comment further at the time. Masterson wanted to wait until a court hearing later this month to set the record straight.

This article has been modified from its original version.

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Scott Buffon can be reached at sbuffon@azdailysun.com, on Twitter @scottbuffon or by phone at (928) 556-2250.


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