By Jennifer Doherty

Law360 (May 17, 2021, 10:02 PM EDT ) The American Civil Liberties Union has taken aim at private prison contractor CoreCivic in its latest suit challenging conditions in immigration detention facilities during the COVID-19 pandemic, claiming that staff at a New Mexico facility pepper-sprayed peaceful hunger strikers in a filmed confrontation.

According to the complaint filed on the first anniversary of the encounter on Friday by the ACLU and the New Mexico Immigrant Law Center, men who were housed in dormitory 2A of the Torrance County Detention Facility, which is run by CoreCivic under a contract with the county, allegedly stopped eating to protest inadequate health and safety measures at the facility in light of the pandemic.

"CoreCivic failed to comply with guidelines from the Centers for Disease Control and Prevention ... by refusing to provide adequate supplies of masks, cleaning supplies and hand soap at TCDF. CoreCivic failed to give information regarding facility protocols to detainees ... or allow staff and detainees to engage in social distancing," the complaint states, asserting that the men "feared for their lives."

CoreCivic Public Affairs Manager Ryan Gustin denied that characterization in a statement to Law360, saying the company "rigorously followed the guidance of local, state and federal health authorities, as well as our government partners" even before any cases emerged in CoreCivic facilities.

"The health and safety of the individuals entrusted to our care and our staff is the top priority for CoreCivic. This commitment is shared by our government partners and we have worked closely together with them to respond to this unprecedented situation appropriately, thoroughly and with care for the well-being of those entrusted to us and our communities," Gustin said.

Video of the May 2020 encounter obtained by the NMILC through a public records request and reviewed by Law360 shows approximately 12 facility staffers wearing smocks and gas masks over their uniforms and carrying plexiglass shields enter the dormitory ahead of the person filming, who identifies himself as Officer Harrow.

After a brief verbal confrontation with the detained men, most of whom appear undressed from the waist up, five officers fog the room over a low wall that separates the sleeping area — where the men are corralled — from the recreation area. When the men attempt to move away from the yellow fog — which CoreCivic identified as oleoresin capsicum, or OC — into the recreation area through one of the two breaks in the room divider, guards rush over to block them. The staff repeatedly shout, "On the ground."

The camera begins shaking as the person filming starts to cough and sniffle. Someone can be heard retching as the guards move into the sleeping area. After 11 minutes, the person holding the camera leaves the dormitory and the video cuts out.

A second clip shows the decontamination process, in which each man is brought to a shower stall and asked in Spanish if he "wants water." Some of the men appear confused by the question. One man, who is brought to the shower fully clothed, says that he wants to wash but will be too cold afterward. Men can be heard moaning in the background. 

"The individual plaintiffs were left in their OC-drenched clothing for hours before being given a change of clothes," the complaint alleges. "Many of the individual plaintiffs were not allowed to shower until days after the attack, causing rashes and burning sensations on their skin. When they were finally able to shower, they were not given instructions on how to properly rinse. The water reactivated the OC spray, causing intense burning of their skin and eyes."

CoreCivic characterized the incident as a protest whose participants became "disruptive by refusing to comply with verbal directives provided by staff" in a statement following the events.

"No injuries occurred as a result of this incident to detainees or staff. Medical staff reviewed all individuals involved in the protest," the company said.

The nine men listed as plaintiffs in the suit were or still are seeking asylum, according to the ACLU. Two of them attempted suicide following the use of force incident and "several" contracted COVID-19 within days of the confrontation the complaint alleges, going on to assert that most of them have since developed post-traumatic stress or generalized anxiety disorders.

The nine-count complaint, which seeks both compensatory and punitive damages on behalf of the men and immigrant advocacy organization the Santa Fe Dreamers Project, includes claims of assault, battery, false imprisonment and intentional infliction of emotional distress, as well as negligent hiring, training and supervision of the TCDF staff, including Chad Miller, the facility's warden at the time of the incident, and its current head, Michael Sedgwick.

"Our clients, who came to the United States seeking safety from persecution, were peacefully demonstrating against dismal living conditions and treatment," Nadia Cabrera-Mazzeo, staff attorney at ACLU of New Mexico said in a statement Thursday.

"Rather than treating them with dignity and compassion, guards chose to spray them with chemical agents and subject them to further trauma," she continued. "This gross abuse of power represents everything that is wrong with our immigration system and in need of urgent change."

The men and the Santa Fe Dreamers Project are represented by Leon Howard, Zoila Alvarez Hernandez and Nadia Cabrera-Mazzeo of the ACLU of New Mexico and by Jasmine McGee of the New Mexico Immigrant Law Center.

Counsel information for CoreCivic, its employees and the Torrance County Board of Commissioners was not immediately available.

The case is Santa Fe Dreamers Project et al. v. CoreCivic et al. in the U.S. District Court for the District of New Mexico.

--Editing by Rich Mills.

Update: This story has been updated with additional details regarding the source of the video.

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