By Nathan Hale

Law360 (April 27, 2020, 9:37 PM EDT) -- A Florida federal judge extended a temporary restraining order Monday as she weighs further action in a suit seeking release of medically vulnerable Miami-Dade County jail inmates because of the COVID-19 pandemic after new data showed a sharp increase in the number of positive cases.

U.S. District Judge Kathleen Williams said she was extending her April 7 order requiring the county to take certain steps at its Metro West Detention Center, such as implementing social distancing as much as possible and providing inmates with soap and other personal hygiene items, at a hearing on the plaintiffs' motion for a preliminary injunction.

The judge said she needed more time to digest the information before her, including figures filed by the county Saturday that showed 159 inmates and 16 staff members had tested positive at Metro West as of April 22, a significant jump from the 31 inmates and 14 staff reported three days earlier. She also made clear that she wanted the county's reporting to continue as part of the extended order.

"I'd like to see that next report," she said when Assistant County Attorney Erica Zaron asked if that portion of the temporary restraining order was suspended.

Zaron told the court that the jump in the number of positive cases was the result of more test results being completed. She also argued that a release order would be an extreme option that has not been seen before in the United States, especially in light of Metro West's current inmate population of 1,560 representing 70% capacity, a low not reached in recent memory.

"We believe we're there and we're able to maintain it," Zaron said. In filings, the county has said that from March 12 through April 12, more than 640 inmates were released from Metro West to early sentence release, pretrial release or house arrest.

But Zaron was unable to answer Judge Williams' question about whether the county planned to test the full Metro West population in light of the county finding numerous positives among asymptomatic inmates and reporting that another 395 inmates are currently being quarantined due to possible coronavirus exposure.

Plaintiffs' counsel Alexandria Twinem of Civil Rights Corps argued that in light of the risk to medically vulnerable inmates from positive-but-asymptomatic inmates, the 70% capacity figure does not matter.

"The problem is there already is Covid in the jail. Now we know it has potential to become aerosolized, so there is no way to stop it once it gets into the air," Twinem said. "For these [medically vulnerable] individuals, it is important we need release now."

Twinem also rebutted the county's argument that the request for release through a writ of habeas corpus in a claim over jail conditions, arguing that "this is simply not a conditions claim."

"It can't be that the Eleventh Circuit [U.S. Court of Appeals] meant to leave those most at risk and with no recourse in an emergency situation," Twinem said.

But Zaron said the county remains confident the court will not find that the county needlessly exposed inmates to COVID-19 through "deliberate indifference," a necessary element to support their claim in their April 5 complaint that it has violated their rights under the Eighth and Fourteenth Amendments.

Judge Williams expressed doubt about whether it was in federal courts' purview to reassess state courts' rulings on bail, but she said the plaintiffs made some compelling arguments.

"These are pretty extraordinary and exceptional times," she commented, adding, "That's why I have asked again and again about the availability of a state review mechanism that is focused on Covid and [available] on an expedited basis. I'm told it's business as usual."

As Monday's hearing neared an end in the late afternoon, the county offered to address Judge Williams' concerns about the current status of the state's case review process, saying Administrative Judge of the Criminal Courts for the Eleventh Judicial Circuit Nushin Sayfie was available to testify on that topic.

But Judge Williams rejected the proposal, saying she felt "very reluctant" to have Judge Sayfie appear in a last-minute call without any preparation as if the topic had just come up.

"I think it's very troubling that the county would pull her in at the last minute," Judge Williams said, adding that she thought she had been abundantly clear about her desire to learn about the state's process for reviewing inmates' cases throughout the proceedings.

Instead, the court ultimately continued the hearing until 9:30 a.m. Tuesday to hear from Judge Sayfie.

Counsel for both sides did not immediately respond to requests for comment following the hearing.

The inmates are represented by Alexandria Twinem, Katherine Hubbard and Alec Karakatsanis of Civil Rights Corps, Katherine Alena Sanoja and Rodney Quinn Smith II of GST LLP, Meena Jagannath of Community Justice Project Inc., Thomas B. Harvey and Tiffany Yang of Advancement Project and Lida Rodriguez-Taseff of DLA Piper.

Miami-Dade County is represented by Erica Sunny Shultz Zaron, Bernard Pastor and Ezra Saul Greenberg of the Miami-Dade County Attorney's Office.

The case is Swain et al. v. Junior et al., case number 1:20-cv-21457, in the U.S. District Court for the Southern District of Florida.

--Editing by Haylee Pearl.

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