Sotomayor Blasts Court For Again Backing Jail In Virus Case

By Jimmy Hoover
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Law360 (August 6, 2020, 4:02 PM EDT) -- The U.S. Supreme Court on Wednesday lifted an order forcing a jail in Orange County, California, to take several measures to combat the spread of the novel coronavirus in its facility, triggering a dissent from Justice Sonia Sotomayor, who has sounded the alarm on the vulnerability of prisoners during the pandemic.

In a 5-4 vote, the Supreme Court's conservative majority stayed an injunction won by inmates for the jail to ramp up its efforts to contain the virus, which at the time had already infected 369 detainees. The district court's order called for increased social distancing, more protective equipment and hygiene protocols along with daily tests for class members.

Orange County had decried the injunction as overkill, arguing that it went beyond even what the Centers for Disease Control and Prevention recommend in their guidance for correctional facilities and "hamstrings" them from taking an "effective and fluid COVID-19 response."

The Republican appointees on the Supreme Court apparently agreed, temporarily blocking the injunction until the Ninth Circuit rules on the county's appeal in the case. The majority did not explain the reason behind their decision to grant the stay Wednesday.

All four liberal justices recorded dissents. Justice Sonia Sotomayor, however, went further and wrote an opinion spelling out her frustration with the majority's decision to lift the injunction. Only Justice Ruth Bader Ginsburg joined that opinion.

There was no reason for the Supreme Court's "extraordinary intervention" in the case, when the district court and Ninth Circuit applied "well-established law" to the facts of the case, Justice Sotomayor said. Specifically, there is no reason to second-guess the lower court's conclusions that the jail misrepresented its handling of the COVID-19 outbreak.

"The District Court found that, despite knowing the severe threat posed by COVID-19 and contrary to its own apparent policies, the jail exposed its inmates to significant risks from a highly contagious and potentially deadly disease," Justice Sotomayor wrote. "Yet this court now intervenes, leaving to its own devices a jail that has misrepresented its actions to the district court and failed to safeguard the health of the inmates in its care."

Orange County and the inmates painted a starkly different picture of the conditions in their filings to the Supreme Court. The county said that it has gone through extreme lengths to combat the disease, releasing 53% of the inmate population and improving hygiene protocols.

The inmates, however, say the jail is still gripped by the COVID-19 crisis and that they are crammed together in day rooms without social distancing, adequate soap, face masks or testing. The county's representations that it has contained the outbreak are false, and positive cases skyrocketed 1,400% from the end of June to the end of July, they said.

"Precious time will be lost because of the Supreme Court's decision, but we are confident we will be able to restore judicial supervision and require the jail to protect those in its charge," said David Zionts of Covington & Burling LLP, an attorney for the inmates. 

Justice Sotomayor has been sounding the alarm on the vulnerability of prisoners during the pandemic for months. In May, she issued a statement also joined by Justice Ruth Bader Ginsburg saying "the stakes could not be higher" for those who are incarcerated when it comes to protections against the disease.

"It has long been said that a society's worth can be judged by taking stock of its prisons," Sotomayor wrote. "That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country's facilities serve as models rather than cautionary tales."

Counsel for the county could not be reached Thursday for comment.

The prisoners are represented by the American Civil Liberties Union, the University of California Irvine School of Law Civil Rights Litigation Clinic and Covington & Burling LLP.

The Orange County jails are represented by the Office of County Counsel for Orange County, California.

The case is Barnes v. Ahlman, case number 20A19, in the U.S. Supreme Court.

--Additional reporting by Mike LaSusa. Editing by Gemma Horowitz.

Update: This story has been updated with a statement from the inmates' attorney.

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