By Carolina Bolado

Law360 (June 25, 2020, 5:27 PM EDT) -- A Florida federal judge on Thursday suggested appointing a special master to check the conditions at three immigration detention centers in Florida and ensure that U.S. Immigration and Customs Enforcement is complying with her order requiring appropriate measures to prevent COVID-19 outbreaks.

After hearing testimony from detainees who called in by phone to a Zoom hearing, U.S. District Judge Marcia G. Cooke pitched the idea of having an independent fact-finder visit the ICE facilities to determine exactly what kinds of measures the agency is taking — or not taking — to protect the health of detainees in the pandemic.

She stopped short of ordering a special master and asked the parties for their positions on the matter.

On June 6, Judge Cooke ordered that ICE had to comply with the detainees' emergency motion to require ICE to adhere to the U.S. Centers for Disease Control and Prevention's COVID-19 guidelines by providing detainees unrestricted access to soap, masks, disinfectants and other cleaning supplies. The order also demands stepped-up cleaning routines, education on coronavirus for detainees and staff, and limited transfers of detainees.

But the detainees who testified Thursday said it is impossible to social distance in the ICE facilities, where they sleep in close quarters, share a water cooler and have to stand in line with COVID-19 positive detainees to get food or use the bathroom. They said they've received inadequate cleaning supplies, and the soap in the bathrooms is not refilled frequently enough.

Scott Edson, who represents the detainees, said ICE has put up educational posters in English and Spanish but has not provided information in other languages and has not complied with the judge's order to provide information orally and in a way that would give detainees an opportunity to answer questions. He said ICE has stated it is putting together a video, but that was more than three weeks ago.

"With all due respect, we don't need the new Avengers film, but we do need to get these folks information in their languages," Edson said.

Dexter Lee, who argued on behalf of ICE, said he believes the agency has complied with the court order, defending the transfers that the detainees had mentioned in their testimony. Lee said that since June 8, the agency has been able to test all new arrivals to the ICE facilities, and any who test positive are isolated for two weeks and monitored.

With regard to the mixing of COVID-19-positive and negative detainees, Lee said that by the time the court issued its order, there were so many detainees who had tested positive and been in close contact with others that officials made the decision to essentially quarantine an entire facility.

Fifty-eight detainees at Krome Detention Center in Miami-Dade County, Broward Transitional Center in Broward County and Glades County Detention Center filed suit on April 13 claiming ICE was failing to prevent the spread of COVID-19 and requesting the release of a proposed class of vulnerable prisoners.

At the time the suit was filed, the three facilities had no confirmed cases of COVID-19, but since then all have reported several dozen cases.

On June 6, Judge Cooke granted the detainees' request for a preliminary injunction after finding that the detainees were likely to succeed on claims that ICE violated their rights under the Fifth and Eighth amendments by creating an undue increased risk of severe illness or death, including through "deliberate indifference."

Judge Cooke also rejected ICE's assertion that its decisions about facility management and detainee transfers are not subject to judicial review, saying the agency's authority "is not absolute."

The judge approved a broad class, covering all civil immigration detainees held at Krome, BTC and Glades since the lawsuit was filed. She also said the class includes detainees transferred to other facilities, even outside of Florida.

The detainees are represented by Rebecca Sharpless and Romy Louise Lerner of the University of Miami School of Law Immigration Clinic, Scott M. Edson, Kathryn S. Lehman and Chad A. Peterson of King & Spalding LLP, Gregory P. Copeland and Sarah T. Gillman of the Rapid Defense Network, Mark A. Prada and Anthony Richard Dominguez of Prada Urizar PLLC, Paul R. Chavez and Maia Fleischman of the Southern Poverty Law Center, Andrea Montavon-McKillip of the Legal Aid Service of Broward County Inc. and Lisa M. Berlow-Lehner of Americans for Immigrant Justice.

The government is represented by Dexter Lee and Natalie Diaz of the U.S. Attorney's Office for the Southern District of Florida.

The case is Gayle et al. v. Meade et al., case number 1:20-cv-21553, in the U.S. District Court for the Southern District of Florida.

--Additional reporting by Nathan Hale. Editing by Steven Edelstone.

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