By Lauren Berg

Law360 (June 10, 2020, 7:52 PM EDT ) A California federal judge on Tuesday said U.S. Immigration and Customs Enforcement "cannot currently be trusted" to stop violating the rights of immigrants detained at two Golden State detention centers and ordered the federal agency to maintain protections to prevent the spread of COVID-19.

In a 12-page order, U.S. District Judge Vince Chhabria granted a preliminary injunction filed by detainees at the Mesa Verde Detention Center and Yuba County Jail seeking more protections from COVID-19, saying newly implemented safety improvements at the facilities came almost entirely from the instant litigation and that ICE acted only because it was ordered to do so.

"Responding to this fast-moving crisis is undoubtedly creating novel challenges for detention facilities across the country, but ICE's conduct and attitude towards its detainees at Mesa Verde and Yuba County Jail since the pandemic began have shown beyond doubt that ICE cannot currently be trusted to prevent constitutional violations at these particular facilities without judicial intervention," Judge Chhabria said.

The judge's injunction ordered ICE to maintain, "at a minimum," the current safety parameters put in place following an earlier temporary restraining order, including staggering meals, dropping the number of detainees in custody, and limiting the number of people sleeping in each dormitory.

The detainees filed suit in April, alleging the Mesa Verde Detention Center and Yuba County Jail were so crowded that any kind of social distancing was impossible. The detainees also said ICE had taken virtually no steps to reduce the risk of an outbreak at either facility, rendering the plaintiffs' detentions unconstitutional.

Later that month, Judge Chhabria conditionally certified a class of all detainees at the two facilities and entered a temporary restraining order. The TRO required ICE to give the court and class counsel information about all of the detainees, including any criminal history and health vulnerabilities putting them at heightened risk from the virus, according to the order. The TRO also established a system for the court to consider whether certain detainees should be temporarily released to help mitigate the dangerous conditions in the facilities.

In his order Tuesday, Judge Chhabria said that when the lawsuit was filed, detainees at the two facilities were still sleeping in barracks-style dorms within arm's reach of each other and only two detainees had been tested for COVID-19.

"It appeared that ICE had not even made the effort to determine which of its detainees suffer from medical conditions that put them in particularly severe danger from the virus," the judge wrote.

Judge Chhabria said significant progress has been made since the TRO was put in place, but that ICE has fought the temporary release of detainees every step of the way. And while the judge has denied release for a number of detainees out of concern they might pose a danger to the public, he said ICE's opposition to bail applications on a blanket basis "has led it to take some positions that are downright irrational, not to mention inhumane."

For example, ICE opposed the release of 78-year-old Jose Luis Lopez-Guevara, who walks with a cane, suffers from numerous chronic health conditions, and underwent heart surgery in March while in ICE custody, according to the order.

Although he found that preliminary injunctive relief is warranted in this case, Judge Chhabria did find that the plaintiffs' proposed judicial intervention into ICE's detention practices to be "more intrusive than necessary."

The plaintiffs wanted the court to order ICE to ensure detainees are at least 10 feet apart from one another while sleeping and that they be able to maintain a six-foot distance at all other times, but the judge said the proposal intrudes too much on ICE's function and decision-making authority. The judge said it appears the detainees assume the government should create conditions of confinement that are the same level of safety achievable for people not in detention, and that if that level of safety can't be achieved, the only answer would be to release more people.

"Of course, people subject to government detention have a constitutional right to safe conditions of confinement," Judge Chhabria said. "But this right guarantees only 'reasonable safety,' with the understanding that detention will almost never be as safe as freedom."

The judge said the federal government has an interest in detaining people who pose a danger to the community or who are a flight risk and that, in this case, many of the people currently detained at Mesa Verde and Yuba County Jail would pose a significant danger to the community if released.

"Against this legal backdrop, it appears possible that the conditions at the facilities have reached, or at least are approaching, the constitutional minimum given the health threat — at least for detainees who pose a significant danger to the community or otherwise should not be released," Judge Chhabria said.

Given the improvements made at the facilities since the TRO, the judge said the primary relief ordered for right now is that ICE must maintain the status quo of safety that currently exists in the facilities.

"The court's order lays bare ICE's utter disregard for both the law and the safety of people in its custody," Bree Bernwanger of the Lawyers' Committee for Civil Rights of the San Francisco Bay Area said in a statement Tuesday. "The need for court intervention is a sign of systemic failure: We cannot trust law enforcement agencies to protect the value of human life."

Martin Schenker of Cooley LLP, an attorney for the plaintiffs, added that the court's order helps protect his clients from COVID-19.

"ICE must not remain indifferent to the health of detainees under its control," Schenker said.

A representative for the government declined to comment Wednesday.

The plaintiffs are represented by William S. Freeman, Sean Riordan and Angelica Salceda of the American Civil Liberties Union Foundation of Northern California; Manohar Raju, Matt Gonzalez, Genna Ellis Beier, Emilou H. MacLean and Francisco Ugarte of the Office of the Public Defender for San Francisco; Bree Bernwanger, Tifanei Ressl-Moyer and Hayden Rodarte of the Lawyer's Committee for Civil Rights of the San Francisco Bay Area; Judah Lakin and Amalia Wille of Lakin & Wille LLP; Jordan Wells and Stephanie Padilla of the ACLU Foundation of Southern California; and Martin S. Schenker, Timothy W. Cook and Francisco M. Unger of Cooley LLP.

The federal defendants are represented by David L. Anderson, Sara Winslow, Wendy M. Garbers, Adrienne Zack and Shiwon Choe of the U.S. Attorney's Office for the Northern District of California.

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.

--Editing by Janice Carter Brown.

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