“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Eleventh Circuit Judges Elizabeth Branch and Kevin Newsom joined or wrote decisions that stayed and then reversed a preliminary injunction to reduce the huge risk due to the COVID-19 pandemic at a Florida detention center in light of proof of prison officials’ “deliberate indifference.”  The case is Swain v. Junior; the May 2020 stay decision is here and the June 2020 decision reversing the injunction is here.

In early April, seven individuals who are being detained before trial at the Metro West detention center in South Florida filed a lawsuit contending that prison officials were violating their constitutional rights by being “deliberate indifferent” to the severe risks posed by COVID-19 in light of crowded conditions and lack of sanitation. These individuals are all medically vulnerable, and sued on behalf of themselves and others detained at Metro West.

Among other serious concerns, the lawsuit contended that prison officials did not provide these individuals with “enough soap or towels” to wash their hands properly and denied them “basic hygienic supplies” like laundry detergent. The plaintiffs also claimed that they “waited days for medical attention” and were “forced to sleep only two feet apart.”

Shortly after they filed their complaint in federal district court, the judge entered a temporary restraining order, under which the facility began to screen any new individuals who entered, “enhanced” its cleaning and sanitation measures, provided masks to all staff and detained individuals, “made efforts” to increase social distancing, and quarantined people showing COVID-19 symptoms. The parties submitted numerous affidavits and expert reports, and the district court held an extensive telephone hearing.

After the hearing, on April 29, the district court found that the officials had, in fact, been “deliberately indifferent” to the plaintiffs’ serious medical problems and entered a preliminary injunction, set to last until mid-June. The injunction ordered a series of safety measures based largely on CDC guidance, including:

• Regularly providing soap, towels, and other sanitation and cleaning supplies.
• Ensuring that staff wear PPEs and engage in proper sanitary practices.
• Providing and replacing masks.
• Providing access to testing and responding promptly to requests for emergency medical attention.
• Quarantining and providing medical care to anyone diagnosed with COVID-19. [and]
• Enforcing social distancing “to the maximum extent possible,” including submitting a plan to improve social distancing.

The prison appealed and sought a stay of the preliminary injunction while the appeal was considered. The stay was granted in an unsigned opinion in which Trump judge Branch provided the deciding vote. Despite the stringent requirements that a defendant must meet to obtain a stay of such an injunction, the majority ruled that a stay should be granted, primarily because they felt that the detainees had not offered enough evidence to show that the officials were deliberately indifferent to the detainees’ serious medical needs.

Judge Charles Wilson firmly dissented. He pointed out that the prison had failed to make the required “strong showing” of error by the district court, particularly with respect to the officials’ deliberate indifference to the lack of social distancing in the detention center.

In June, a different group of judges issued a divided ruling on the preliminary injunction itself. Trump judge Newsom wrote a decision reversing the preliminary injunction, again relying on the claim that the plaintiffs had not shown prison officials’ deliberate indifference; they were, he said, doing “their best” about social distancing and related issues.

Judge Beverly Martin strongly dissented. She pointed out that the record contains “nearly two dozen sworn affidavits describing how jail staff and administrators had failed to implement adequate measures to maintain safe conditions even while Metro West remains dangerously crowded.” She explained that the evidence showed that officials “knowingly maintained” conditions that placed detainees at an “impermissibly high risk” both by maintaining a “dangerously high jail population” and by “failing to implement needed safety measures.” For example, she noted, “detainees describe beds placed so close together they can reach out and touch neighboring bunks.” Even assuming officials had no negative underlying intent, Martin concluded, the Constitution forbids the “knowing and willful detention of human beings in circumstances that place them at great risk of death or grave illness.”

An attorney for the detainees made clear that they intend to pursue the case and to demonstrate that officials “have been ignoring grave safety concerns” at Metro West. In the meantime, Trump judges Branch and Newsom’s votes have clearly endangered the lives of all who are incarcerated there and others, and may well make it more difficult to prove “deliberate indifference” by prison officials in this and future cases.