“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 Sixth Circuit judges John Bush and Joan Larsen effectively reversed a Sixth Circuit ruling of less than a month earlier and stayed a lower court preliminary injunction to help protect people in Oakland County Jail from COVID-19, including people who have not yet been tried for any offense. The June 2020 decision is in Cameron v. Bouchard.
As reported previously in this blog post, Bush dissented from the May 26 ruling that refused to stay a district court’s preliminary injunction. That injunction had found that officials at Oakland County Jail were “deliberately indifferent” to the significant risk of COVID-19 within the facility, and ordered health and safety measures such as providing soap and hand towels to people and requiring staff to wear personal protective equipment.
The jail tried again in June to stop the district court order while its appeal was pending. This time, the panel considering the motion included Joan Larsen, a second Trump judge, whose presence tipped the scales to a 2-1 vote to stop the injunction while the appeal goes forward. In an unsigned opinion issued on June 11 – less than three weeks after the May 26 order – Bush and Larsen claimed that the reversal was justified. They cited a different June Sixth Circuit ruling, which vacated what the majority stated was a similar preliminary injunction against an Ohio federal prison, as their rationale.
Chief Judge Guy Cole, who was also on the May 26 panel, strongly dissented. He explained that the Ohio case was not applicable because the Oakland County case, unlike the Ohio one, included specific factual findings of prison officials’ deliberate indifference, including: that the Oakland County officials “threatened to punish” anyone who complained by “transferring them to areas of the Jail that are infested by COVID-19,” that their medical responses to those who experienced symptoms were “completely inadequate,” and that they “altered their practices for the sole purpose of an inspection of the Jail only to return to unsafe practices when the inspection concluded.”
Cole also noted that since the Oakland County officials were trying to stop the injunction while the appeal was pending, as opposed to litigating the injunction itself as in the Ohio case, they had a particularly “heavy burden” of showing that they were likely to succeed, which they had not met. Cole further pointed out that other factors, such as the risk of irreparable injury to the plaintiffs, also weighed against staying the injunction.
Chief Judge Cole concluded that in addition to harm to the public interest, the stay could result in Oakland County officials abandoning COVID-19 protective measures, and further “serious injury or even death” for those under their purported care who “cannot” themselves take the “government-recommended precautions for avoiding the virus.”
Alas, that is precisely what Trump judges Bush and Larsen voted to do: stop the injunction to help incarcerated people “remain safe” in the jail during the COVID-19 pandemic.
UPDATE: On July 9, Bush and Larsen reversed the district court’s prelimnary injunction on the merits, with another strong dissent by Chief Judge Cole. See 2020 US App Lexis 21480.