December 14, 2020
DENVER – As COVID-19 raged throughout Colorado jails and prisons, and more than 800 detainees at the El Paso County Jail tested positive for the virus, jail staff told incarcerated people begging for help: “we’re just going to let the virus run its course.”
On Sunday, ACLU of Colorado and three private attorneys filed a class action lawsuit against the sheriff in federal court. The lawsuit, based on hundreds of letters and dozens of interviews, seeks an expedited hearing and a court order to require Sheriff Elder to comply with COVID-19 public health guidelines, provide adequate protection from the virus and implement proper monitoring and treatment for persons who test positive.
“While publicly on Facebook Sheriff Elder was imploring citizens to ‘wear a mask,’ privately he and his staff prohibited people from wearing masks in their housing units,” said Mark Silverstein, ACLU of Colorado Legal Director. “The result of the sheriff’s multiple failures was the largest COVID-19 outbreak of any jail or prison in the state, with two-thirds of the jail population testing positive. Only then, a few weeks ago, did the sheriff finally begin providing incarcerated people with masks.”
The class action complaint, filed by six detained people on behalf of the entire jail population, asserts that Sheriff Elder has failed in multiple ways to protect people in his custody from the substantial risk of serious harm and even death posed by the highly contagious virus. Several of the plaintiffs provided gut-wrenching personal accounts about their experiences inside the El Paso jail. One woman who is three months pregnant and being held for a non-violent offense wrote, “I was sleeping within a few feet of COVID positive inmates. Even though I had tested negative and even though I am high risk because I am pregnant and have asthma, the jail still did nothing to move me away from the people who tested positive.”
In addition to failing for months to provide masks, the jail mixes people who are COVID-19 positive with others, fails to quarantine new admissions, fails to identify and protect incarcerated people whom the CDC deems to be especially medically vulnerable if they contract the virus, and fails to properly monitor and treat those who develop symptoms.
According to the lawsuit, Sheriff Elder failed to provide masks despite receiving $15.6 million in federal funding under the CARES Act for the specific purpose of COVID-19 protection — funds he chose to spend on a variety of expensive projects. While the sheriff broke ground on multi-million-dollar construction — such as renovating the staff locker room and remodeling offices — people in his jail sat helpless and without any defense against the deadly virus.
“Hundreds of people contracted COVID-19 in the jail and suffered unnecessarily because of the sheriff’s deliberately indifferent failure to protect them from an obvious risk of infection and harm to their health,” said Dan Williams, an attorney on the legal team. “Meanwhile, those who have yet to contract the virus live in constant fear, as they look around at sick bunkmates, coughing jail staff and a general disregard for safety. In the time it took to prepare to file this case, people who tested negative multiple times have now tested positive and begun to get sick. Urgent is an understatement.”
Attorneys in this case also represent incarcerated people in the Weld County Jail in a class action raising similar issues against Weld County Sheriff Steve Reams. After a day-long hearing last April, a federal judge issued a preliminary injunction ordering the Weld sheriff to implement protective measures, including providing masks to people in custody.
The plaintiffs’ attorneys in this case include Dan Williams of Hutchinson, Black and Cook, LLC, David Maxted of Maxted Law, Jamie Hubbard of Stimson Stancil LaBranche Hubbard and the ACLU of Colorado legal team.
Read first-person accounts of people in El Paso County Jail:

Preliminary injunction in Weld County:

ACLU class action against Governor Polis:


The ACLU of Colorado is the state’s oldest civil rights organization, protecting and defending the civil rights of all Coloradans through litigation, education and advocacy.