Mass. Judge Says Virus-Prone Detainees Meet Class Criteria

By Sarah Martinson
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Law360 (April 9, 2020, 2:13 PM EDT) -- A Massachusetts federal judge has certified a class of immigrant detainees seeking to be released from a county jail that allegedly lacks adequate protections against the coronavirus, saying that we are now in "a world brought to its knees by the pandemic."

U.S. District Judge William G. Young said in a Wednesday order that even though there are currently no positive cases of COVID-19 at the Bristol County House of Correction in North Dartmouth, Massachusetts, detainees "inevitably will" catch the novel virus and that jail conditions don't allow them to practice social distancing to stop the virus from spreading.

The detainees who are being held at the jail under the custody of U.S. Immigration and Customs Enforcement have shown that they are large enough in number and that their claims about inadequate protection against COVID-19 are similar enough for them to proceed as a class, Judge Young said.

"The harm of a COVID-19 infection will generally be more serious for some petitioners than for others," he said. "Yet it cannot be denied that the virus is gravely dangerous to all of us."

The future harm to detainees who are kept in the overcrowded jail is real, and not speculative as the government has argued, giving them standing in the court, Judge Young said.

The government had told the court that it is doing everything it can to prevent an outbreak by screening people for symptoms of the virus before they enter the jail and by monitoring detainees who are older or immunocompromised.

However, the prisoners said they lack access to soap and medical supplies to combat the virus and can't practice measures such as social distancing recommended by the Centers for Disease Control and Prevention.

"The question is not so much whether any particular detainee should be released — a matter as to which the various individuals are surely differently situated," Judge Young said. "Rather, the question is whether the government is taking reasonable steps to identify those detainees who may be released in order to protect everyone from the impending threat of mass contagion."

Judge Young previously rejected a request to free nearly 150 ICE detainees at the Bristol County jail, telling attorneys three days after their complaint was filed last month that the pandemic is not a reason to "empty jails."

But last week, he agreed to release a handful of ICE detainees at the jail and review 10 cases per day for the rest of the detainees. Then, on Tuesday, he ordered for eight more detainees to be released.

That same day, Democratic House leaders urged the U.S. Department of Homeland Security to release nonviolent detainees, saying the fact that the department doesn't have a plan for limiting the spread of COVID-19 puts detainees' lives in jeopardy.

Advocacy groups including the Northwest Immigrant Rights Project and the American Civil Liberties Union have expressed similar concerns in recent lawsuits filed in Washington, Louisiana, New York and Pennsylvania.

The lawsuits are seeking the release of detainees who are older or have preexisting medical conditions, and they have had mixed results so far. The Washington and Louisiana courts have refused to grant the request, while the judges in New York and Pennsylvania have ordered the release of 24 detainees who are more vulnerable to having medical complications from catching the virus.

Counsel for the detainees and counsel for the government did not respond to requests for comment Thursday.

The detainees are represented by Ivan Espinoza-Madrigal, Oren N. Nimni and Oren M. Sellstrom of Lawyers for Civil Rights and Reena Parikh and Michael J. Wishnie of Yale Law School.

The government is represented by Thomas E. Kanwit and Michael P. Sady of the U.S. Attorney's Office for the District of Massachusetts.

The case is Savino et al. v. Hodgson et al., case number 1:20-cv-10617, in U.S. District Court for the District of Massachusetts.

--Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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