By Nathan Hale

Law360 (June 9, 2020, 6:02 PM EDT) -- Miami-Dade County urged a federal appeals court Tuesday to throw out a preliminary injunction that orders it to take certain steps aimed at curbing the spread of COVID-19 at a county jail, challenging the basis of the order and saying it could set a dangerous precedent.

During oral arguments held over the phone due to the pandemic, Assistant County Attorney Ezra S. Greenberg argued that the district court held the county to an unreasonable standard of liability in a proposed class action brought by inmates at the Metro West Detention Center, and wrongly found the county has acted with "deliberate indifference" despite the efforts it has undertaken.

"There is simply no reason to believe that the district court's usurpation of local control will cure the difficulties posed by this pandemic," Greenberg argued to the three-judge appellate panel. "The standard of liability that the district court imposed below will in fact lead to every single jail in this country with dormitory housing being found deliberately indifferent."

In the April 29 preliminary injunction, which closely tracked an earlier temporary restraining order she issued, U.S. District Judge Kathleen M. Williams called for the county to implement social distancing as much as possible and provide inmates with soap and other personal hygiene items. The order also required the county to submit a proposal for additional social distancing safeguards and ongoing reports on the facility's population and testing results.

Greenberg said the injunction order was "especially inappropriate" because it ordered the county to take actions it was already voluntarily taking.

"The district court's balancing of the harms in this case bore absolutely no resemblance to what was actually being done by the county," he said.

U.S. Circuit Judge Beverly B. Martin pressed back on some of Greenberg's assertions, saying she had read declarations filed by inmates in which they claimed there are still many problems with cleanliness and social distancing.

"You acknowledge that there's a dispute over the facts?" she asked Greenberg.

Greenberg responded that Judge Williams made a finding of deliberate indifference without resolving those disputes, and argued that the district judge "completely ignored" an independent expert inspection that did not find the county was disobeying the temporary restraining order.

Judge Martin noted that the expert also had found there was a need for greater social distancing in the jail.

A different Eleventh Circuit panel last month granted the county a stay of the preliminary injunction pending resolution of its appeal, with a 2-1 decision finding the district court likely committed errors in its deliberate indifference analysis by relying in part on the increase in COVID-19 infections at the facility as proof.

U.S. Circuit Judge Kevin C. Newsom raised some of those same issues during Tuesday's hearing, pressing the inmates' counsel, Emma Simson of WilmerHale, on the district court's reasoning for its deliberate indifference finding.

Judge Newsom asked how the panel can reconcile that conclusion with all of the mitigating efforts the county has made, for which the district court basically gave it credit, and the independent report, which said it was doing its best.

"How is doing their best deliberately indifferent or even indifferent for that matter?" he asked.

Simson argued that it was reasonable for the district court to consider the rate of infections "as the backdrop" to the reasonableness of the actions the county has taken.

She said that the question is whether the county knows of ways to reduce the risk of harm and if knowingly or recklessly declined to implement them. There is consensus, she said, that physical distancing is essential to controlling the spread of COVID-19, and the other measures taken by the county, while important, are not going to adequately reduce the risk to inmates at Metro West.

"The defendants are fully aware that social distancing is essential, and yet they have failed to ensure this is happening throughout the jail," Simson said. "And more importantly, they are continuing to confine too large a population to ensure that social distancing is possible.

"This court's precedent is clear that even if you take some measures to abate a risk of harm, if you are not taking the most important and the most effective step, and you are not going to adequately abate the risk when you know of a way to do so, that can be deliberately indifferent," she added.

In their class action complaint, the Metro West inmates claimed the county has violated their rights under the Eighth and Fourteenth Amendments by needlessly exposing them to COVID-19, and they requested the court order the jail to comply with U.S. Centers for Disease and Control & Prevention guidelines as well as to release a subclass of medically vulnerable inmates pursuant to a writ of habeas corpus.

Counsel for the county declined to comment on pending litigation after the hearing, and counsel for the inmates also said they had no comment.

U.S. Circuit Judges Beverly B. Martin and Kevin C. Newsom and U.S. District Judge W. Keith Watkins sat on the panel for the Eleventh Circuit.

The inmates are represented by Emma Simson, Daniel S. Volchok and Emily Barnet of WilmerHale, and Alec Karakatsanis of Civil Rights Corps.

Miami-Dade is represented by Ezra S. Greenberg, Bernard Pastor, Zach Vosseler and Oren Rosenthal of the county's attorney's office.

The case is Swain et al. v. Junior et al., case number 20-11622, in the U.S. Court of Appeals for the Eleventh Circuit.

--Editing by Adam LoBelia.

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