By Frank G. Runyeon

Law360, New York (April 1, 2020, 10:10 PM EDT ) The Federal Bureau of Prisons alarmed inmates' counsel when it revealed to a New York federal judge on Wednesday that a Brooklyn federal prison had tested only two additional inmates — out of 1,700 — after five staff members and one prisoner were found to be infected with the coronavirus.

During a three-hour teleconference hearing seeking emergency release of four vulnerable inmates, government counsel admitted under questioning by U.S. Judge Rachel P. Kovner that the Metropolitan Detention Center in Brooklyn had done little testing after finding an inmate was positive for the virus, despite featuring the single infection as evidence that the facility was not unsafe for ailing inmates nearing their release dates.

"You point out that there is one positive test among inmates, but we don't really know what the denominator is," Judge Kovner said. "Do you know how many people have been tested at the facility?"

"I believe there have been two other tests of inmates," said government counsel Seth D. Eichenholtz after a brief pause. BOP counsel Holly Pratesi added that both those tests were negative, but she wasn't "100% sure" if there had been any additional tests.

"How probative is it that there's only been one positive test — if we're talking one out of three?" the judge asked.

"Yeah, I, I, and I don't and it, it's a challenging question," Eichenholtz said, scrambling to respond. But "every inmate who has these concerning symptoms" would be tested, he said. Medical staff, Pratesi clarified, are the ones who evaluate "whether testing is appropriate."

Counsel for the inmates cut in.

"That's extremely alarming, your honor," said Katie Rosenfeld. "Because what that means is that the number of people who likely have the coronavirus there is exponentially higher."

"I don't really understand the representation that — I'm sorry, I'm at a loss for words," Rosenfeld said, before arguing that she and other attorneys have heard reports from inmates that many inside the prison have coronavirus symptoms and are not being tested.

"There are many people in the facility who are sick and have not been tested," Rosenfeld argued.

The judge followed up with the government.

"Are you saying you're testing every person with a fever and a cough? Or when are you testing?" Judge Kovner asked, drilling down on the prison's coronavirus protocol.

Pratesi said the prison's staff first have to verify if the inmates actually have the symptoms they claim to be experiencing, but would assume inmates with verified symptoms would be tested.

"I don't want to speak for the medical staff who actually make that evaluation, but my assumption is that they would then be tested," said Pratesi.

With that, the judge waived off the government's claim that it was testing symptomatic inmates as unreliable.

Rosenfeld cut in again to tie the lack of testing to her bid to appoint a special master with specialized medical knowledge to oversee an expected flood of future applications for others on the MDC's list of 537 inmates most at-risk from coronavirus.

"Of course, the district's counsel are not doctors and neither is Ms. Pratesi," Rosenfeld said, arguing that the government's murky understanding of MDC testing protocols further supports the need for a special master who can help determine what's really going on.

As it stands, the news that only two additional inmates have been tested after an inmate and five staffers have tested positive for COVID-19 in the midst of a pandemic "seems to a layperson very concerning," she said.

The class petition seeking a writ of habeas corpus, filed Friday, argues that keeping Hassan Chunn, Nehemiah McBride, Ayman Raybadi and Justin Rodriguez in custody violates their constitutional rights, as MDC has shown "deliberate indifference" to the petitioners' medical needs, according to court filings.

Their rights are being violated by BOP incarcerating them in conditions that fail to protect them from a disease that "will prove deadly" if they contract it, despite repeated warnings that the prison simply doesn't allow for even basic CDC recommendations like social distancing and basic hygiene, inmates' counsel argued on Wednesday.

Inmates say they are forced to be in close proximity and don't even have access to soap. Two of them have release dates scheduled for later this month anyway, they note, and simply want to be let out earlier to avoid the danger of being exposed to the virus in the interim.

"In this proceeding, the fundamental question is are they being held in violation of the Constitution or not," argued inmates' counsel Alexander A. Reinert of the Benjamin N. Cardozo School of Law.

"We don't have to wait for a tragedy to happen for the Eighth Amendment to kick in," said Reinert, referencing the constitutional safeguard against cruel and unusual punishment. He cited U.S. Supreme Court precedent and argued that this court had the unique opportunity "where we can avert disaster before it strikes."

Reinert said the inmates are seeking immediate injunctive relief because the typical channels of requesting release to home confinement from their sentencing judge or for compassionate release through the BOP's bureaucratic process is taking too long and that in just one week, COVID-19 diagnoses "increased more than 800%" in federal prisons nationally.

The government countered that there was no need for extraordinary remedies to address the prisoners' concerns.

Government counsel argued that the inmates' lawsuit "is an attempt to endrun all those alternatives that these inmates have to pursue release from their sentencing judges," said James Cho of the U.S. Attorney's Office for the Eastern District of New York.

Furthermore, the government was reacting swiftly to a rapidly changing public health crisis and that it was not violating inmates' rights.

"There is nothing indifferent about what the MDC has been doing," said Cho, noting that BOP had even updated its coronavirus protocols the night before and posted them on the docket.

The government also argued that the key consideration surrounding the prisoners' release should be what risk they posed to the community, which is of "paramount concern to the MDC," Cho said, noting that the inmates did not address that issue in their papers.

After the three hours of arguments, the judge reserved judgment on the matter but promised to rule on the issue soon.

"I'm going to turn this around as fast as I can, but it's probably going to be tomorrow," said Judge Kovner.

The inmates are represented by Alexander A. Reinert and Betsy R. Ginsberg of the Benjamin N. Cardozo School of Law and Katherine Ruth Rosenfeld and O. Andrew F. Wilson of Emery Celli Brinckerhoff & Abady LLP.

The government is represented by James R. Cho and Seth D. Eichenholtz of the U.S. Attorney's Office for the Eastern District of New York.

The case is Chunn et al. v. Edge, case number 1:20-cv-01590, in the U.S. District Court for the Eastern District of New York.

--Editing by Michael Watanabe.

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