By Chris Villani

Law360 (April 2, 2020, 6:00 PM EDT ) A federal judge signaled that due to the COVID-19 pandemic, he is open to releasing at least some of the 148 U.S. Immigration and Customs Enforcement detainees being held at a Massachusetts jail, telling lawyers Thursday that reducing the inmate population should protect the facility in case of an outbreak.

Hearing a pair of cases, one a class action aimed at removing ICE detainees from the Bristol County House of Correction, U.S. District Judge William G. Young seemed sympathetic to the concerns raised in the suit and said action should be taken before an inmate tests positive for the coronavirus.

"The medical evidence indicates that, to the extent we could reduce the population of the detainee facility at Bristol House of Correction, in any material respect, that would improve the chances of continued health and hence the continued healthy environment in the facility," Judge Young said during the hearing, conducted via video conference. "I don't think that there is any medical evidence that cuts the other way."

The judge said the proposed class of nearly 150 detainees is too broad, instead carving it up into five categories: those with no criminal record or pending charges; those with underlying medical issues and minor, nonviolent records; those who have minor criminal pasts but are not immunocompromised; those who have serious pending criminal charges; and those with serious criminal convictions.

He proposed initially focusing on the first group, made up of 11 people. Judge Young did not make a bench ruling Thursday and continued the matter for further arguments Friday afternoon.

But he said time is of the essence, pushing back against a government lawyer's suggestion to reconvene early next week.

"Given the projections, despite the sheriff's best efforts, if we wait until we have someone within that facility testing positive, we've waited too long," Judge Young said.

Earlier in the day Thursday, it was revealed that a nurse working in the southern Massachusetts jail had tested positive for coronavirus. Assistant U.S. Attorney Thomas Kanwit said the nurse had limited contact with detainees, and that those who did come into contact with the nurse have been quarantined and are not showing any symptoms of the disease.

Reducing the detainee population by 10 or 20 would not make much of a difference, Kanwit said.

"I don't say it does," Judge Young replied. "I am probably looking at more than that. Those beds are three feet apart. We hear incessantly that six feet apart is the bare minimum."

But Kanwit said the argument being made in the class action filed last week by Lawyers for Civil Rights and an emergency petition filed Wednesday by the American Civil Liberties Union wrongly assumes detainees are safer in the community during the pandemic than they are in the facility.

"There is no evidence, zero evidence, that COVID-19 is present among the detainee population," Kanwit said. "I don't agree that it's an absolute necessity to conclude the virus will eventually be there in the population and, at that point, that it is too late to do anything. All of the steps taken by Bristol County House of Correction are intended and designed to keep COVID-19 from entering the facility, and, if it's there, deal with it effectively and rapidly."

Lawyers for Civil Rights' Oren Sellstrom said he was surprised and "alarmed" at the lack of urgency on the part of the federal government, saying the pandemic is worsening. He pressed Judge Young, unsuccessfully, to negotiate the release of the lower-risk detainees Thursday and set a slightly longer timetable to discuss the rest.

"The situation is critical," Sellstrom said.

As the global number of coronavirus cases passed 1 million on Thursday and Massachusetts Republican Gov. Charlie Baker said the state is bracing for a surge between April 10 and 20, the detainees who filed suit argued the conditions in Bristol prevent them from practicing the federally advised social distancing guidelines.

In considering the claims, Judge Young requested information on all the 148 detainees and the facility, including photographs. He has recommended that ICE not transfer any more detainees to Bristol.

ICE has declined to comment on the claims, other than to say it has faith in the Bristol County House of Correction to safely house detainees. If someone is released, Judge Young said Thursday that the person would have to be symptom-free, be picked up by a legal custodian, self-quarantine for 14 days and then be subject to house arrest. Sellstrom signaled Lawyers for Civil Rights is fine with those conditions.

Before adjourning for the day, the judge also urged the two sides to continue to negotiate, saying he is very likely to sign off on any compromise they are able to reach.

The petitioners are represented by Ivan Espinoza-Madrigal, Oren N. Nimni and Oren M. Sellstrom of Lawyers for Civil Rights, Reena Parikh and Michael J. Wishnie of Yale Law School and Anand Balakrishnan, Eunice H. Cho, Adriana Lafaille, Daniel L. McFadden and Matthew Segal of the ACLU.

ICE and the sheriff's office are represented by Thomas E. Kanwit, Michael P. Sady and Rayford A. Farquhar of the U.S. attorney's office.

The cases are Savino et al. v. Hodgson et al., case number 1:20-cv-10617, and McMenamin et al. v. Souza et al., case number 1:20-cv-10644, in U.S. District Court for the District of Massachusetts.

--Editing by Stephen Berg.

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