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Law360 (August 6, 2020, 8:28 PM EDT ) A California federal judge on Thursday ordered U.S. Immigration and Customs Enforcement to conduct weekly, rapid-result coronavirus tests on immigrants in a detention center facing an outbreak, saying the agency approached inmate health in a "cavalier fashion" and no longer had credibility to avoid the measure.
U.S. District Judge Vince Chhabria also directed ICE to give the court daily updates on its efforts to protect the Mesa Verde Processing Facility from coronavirus, a briefing that must include the names and locations of every detainee, as well as results from the weekly testing. The first report is due Aug. 10, according to the order.
Advocates for the 121 immigrants housed at the GEO Group Inc.-run facility pressed for regular, wide-scale coronavirus testing. In response, the private prison operator and ICE called the measures burdensome, saying they didn't have enough supplies for that kind of testing, according to court filings.
But Judge Chhabria rejected those arguments, saying that ICE and GEO Group had sufficient testing supplies. Furthermore, the court record showed they avoided widespread testing, fearing that positive test results would require them to enact extra virus safeguards, he said.
"The defendants, having responded to the health crisis in such a cavalier fashion (even in the face of litigation and a string of court orders), have lost the credibility to complain that the relief requested by the plaintiffs is too rigid or burdensome," Judge Chhabria said.
At least five detainees tested positive for coronavirus over the last week, one of whom was released to his family after hospitalization, according to American Civil Liberties Union attorney Sean Riordan, who represents the immigrant detainees.
In a separate order, Judge Chhabria directed any individuals who have been or will be released from Mesa Verde to report if they test positive for the virus after leaving the facility.
The orders follow up on a June preliminary injunction requiring ICE to maintain "at a minimum" its safety measures in Mesa Verde as well as those in the Yuba County Jail. At the time, the agency was staggering meals, lowering the number of people in custody and reducing the detainees housed in each of its four dormitories.
However, Judge Chhabria appeared to second-guess not calling for stronger measures at the time.
"In hindsight, perhaps the court should not have erred on the side of deference when issuing the original temporary restraining order and preliminary injunction," he said Thursday.
Representatives for the U.S. Department of Justice and GEO Group did not immediately respond to requests for comment.
Riordan told Law360 that the order forces the defendants to turn away from their current testing system, which produced results with enough of a lag time to hamper efforts to contain the virus.
He explained that detainees who were tested for coronavirus over the past week were housed with other inmates while they awaited results.
"We're very concerned that additional people were infected," Riordan said.
Though Thursday's order was a "positive step" to safeguarding the Mesa Verde detainees' health, Riordan said the team would continue to press for more guardrails.
The detainees are represented by William S. Freeman, Sean Riordan, and Angelica Salceda of the ACLU Foundation of Northern California; Jordan Wells and Stephanie Padilla of the ACLU Foundation of Southern California; Manohar Raju, Matt Gonzalez, Genna Ellis Beier, Emilou H. Maclean and Francisco Ugarte of the Office of the Public Defender of San Francisco; Judah Lakin and Amalia Wille of Lakin & Wille LLP; Bree Bernwanger and Hayden Rodarte of the Lawyers' Committee for Civil Rights of San Francisco Bay Area; and Martin S. Schenker, Timothy W. Cook and Francisco M. Unger of Cooley LLP.
ICE is represented by David L. Anderson, Wendy M. Garbers, Adrienne Zack and Shiwon Choe of the U.S. Attorney's Office of the Northern District of California and Sara Winslow of the U.S. Department of Justice's Civil Division.
GEO Group Inc. is represented by Susan E. Coleman of Burke Williams & Sorensen LLP.
The suit is Angel de Jesus Zepeda Rivas et al. v. David Jennings et al., case number 3:20-cv-02731, in the U.S. District Court for the Northern District of California.
---Additional reporting by Lauren Berg. Editing by Abbie Sarfo.
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