On Tuesday afternoon, an email sent by Iván Espinoza-Madrigal of Lawyers for Civil Rights (LCR) declared “Victory in Bristol County!” after a court order granted relief to plaintiffs in a lawsuit filed against the Bristol County (Mass.) Sheriff’s Office and U.S. Immigration and Customs Enforcement (ICE).
“Victory in Bristol County!,” Espinoza-Madrigal wrote. “We are excited to share the federal court’s written decision and opinion formalizing the relief we secured in our preliminary injunction hearing in Savino v. Souza, the coronavirus class action against ICE and Bristol County. The decision is a powerful affirmation and validation of the COVID-19 concerns raised by our clients, all immigrants held by Sheriff Thomas Hodgson.”
“Beyond Bristol County, this decision will have national impact during and beyond the pandemic, particularly with respect to immigration detention practices,” Espinoza-Madrigal added.
The Tuesday ruling by district judge William G. Young stated the following:
- As soon as reasonably possible, all immigration detainees at Bristol County House of Correction and staff who come into contact with them must be tested for COVID- 19. The Court shall be satisfied with a polymerase chain reaction (PCR) test approved by the Food and Drug Administration for this purpose. The test shall be provided at no cost to the detainees or BCHOC staff; if there are costs, ICE is to bear them. Anyone covered by this order may decline to be tested, but a declination shall be treated as a positive COVID-19 result and that person shall be presumed to be carrying the COVID-19 virus.
- No new immigration detainees may be admitted to Bristol County House of Correction. Any detainee who was already admitted but has left or will leave the facility, for whatever reason, shall not return.
- The above orders shall automatically dissolve upon the latter of the following two events: (a) the Judicial Conference of the United States rescinds its authorization under the CARES Act for the use of video and teleconferencing during certain proceedings;21 (b) the Supreme Judicial Court rescinds the rebuttable presumption of release for certain inmates it has described in Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 142 N.E.3d 525 (2020).
- At a hearing held on May 11, 2020, the Court modified the preliminary injunction as follows: No immigration detainee shall be transferred from the Bristol County House of Correction to another detention center until the testing required by the preliminary injunction has been performed and the Court has been informed that the test was negative. If the individual declines the test, then that person may be moved upon proper notice to the Court so long as existing ICE protocols having to do with the health of the individual are followed. The order in this paragraph shall dissolve together with the rest of the preliminary injunction.
In the same email, Espinoza-Madrigal also included highlights from Young’s decision:
- “A class of civil immigration detainees held in the Bristol County House of Correction [BCHOC], citing this unparalleled health crisis, press this Court to release them from confinement in tight and allegedly unsanitary quarters. The government refuses to play ball.” (Page 1)
- “As an experienced trial judge at both the state and federal levels, I have been struck by the fact that the great bulk of these 148 detainees —not all but most— would have been admitted to bail on terms were they American citizens facing criminal charges. The fact I did not release more is due solely to the proper respect I owe to the administrative hearing officers within the executive.” (Footnote 4, Page 6)
- “Testing of both staff and detainees has been minimal, so the real infection rate is a mystery. Measures to isolate the carriers and prevent the disease’s spread cannot succeed without testing.” (Page 15)
- “Of particular concern is the contradictory evidence in the record regarding monitoring of those Detainees who are especially vulnerable to COVID-19.” (Page 17-18)
- “The Court does not disagree with the government’s protestation that “[i]rreparable harm cannot be assumed from the fact of the pandemic alone.” Opp’n 12. It is the government’s response to the pandemic that matters. On the evidence in the record, it appears highly likely that serious harm would have followed from the Court’s inaction.” (Page 19)
- “Detainees have demonstrated at least three cavernous holes in the government’s mitigation strategy—holes it has obstinately refused to plug throughout this litigation.” (Page 23)
- “In this case, the authorities have displayed the contrary mindset. Where elasticity is vital, they are rigid; where life hangs upon a carefully drawn line, they opt for near-blanket incarceration. That is evidence of deliberate indifference.” (Page 25)
- “When this Court forced individual bail applications upon the government, it resisted all of them. Day in and day out, the Court was told that “[i]t is ICE’s position, for the record, that release of none of the listed individuals is required for either their safety or the safety of the remaining civil detainee population at BCHOC.” Opposition was understandable for some of the forty-four whom the Court admitted to bail, but at least twenty-five of those had either no criminal records or minimal or nonviolent ones (e.g., fraud, operating under the influence, larceny, drug possession, or failure to appear) along with mitigating circumstances that indicated little continued threat to the public. Several also had health conditions elevating their risk from the virus. ICE is free to disagree with this Court’s determination regarding this or that individual’s aptness for release. A wholesale blockade on bail, however, cannot be justified when the government proffers no alternative method of reducing the population to a safe number.” (Page 27)
- “The government began this litigation suggesting, contrary to all known expert guidance, that social distancing was unnecessary because the virus could somehow be kept out of BCHOC. Even after the fallacy of this view became apparent, as eleven staff members and one Detainee tested positive, the government continued to argue that “BCHOC is not like the world at large” since it “is able to control who comes into its facility, where they go, and what steps are taken to screen such individuals. Social interaction, the primary focus of the social distancing recommendations, is much more limited at BCHOC than in the outside world.” Opp’n 29. This thinking flies in the face of the CDC’s direct warnings that detention centers are hardly impregnable fortresses and that, in fact, they are more susceptible to outbreaks once the virus penetrates.” (Page 28)
Last week, Espinoza-Madrigal spoke with Latino Rebels Radio about the case and why he felt is was important to pursue, especially since he said that his clients were disputing a May 1 incident in Bristol County, where Hodgson confirmed the use of pepper spray and K-9 units. Espinoza-Madrigal as well as others —including Democratic members of Congress— have been asking for security footage of the incident to be made public.
“A recent altercation at the C. Carlos Carreiro Immigration Detention Center in Bristol County, Massachusetts highlights ongoing tensions in ICE detention and potentially excessive use of force amid the pandemic. We call on you to ensure all footage of this incident at Bristol County detention center is released publicly to help ascertain exactly what transpired,” a letter singned by 48 Democratic House members said.
Earlier before the Tuesday court order, Hodgson wrote a local opinion piece published by The Sun Chronicle, stating that he has nothing to hide:
“Suggesting the Bristol County Sheriff’s Office is hiding something is disrespectful to the more than 600 essential workers on my dedicated staff, and especially disrespectful to the security professionals who did everything right during a disturbance at the ICE facility a few weeks ago,” Hodgson wrote. “I’d love to show everyone the security footage from the incident that night, because it shows my staff did everything right and by the book, and dispels many of the false claims being peddled by the political activist attorneys/publicists. As soon as the Office of the Inspector General is done with the independent investigation, I will release the video, and I will add The Sun Chronicle to the long list of officials/organizations that I’ll be asking to publicly apologize.”
On May 7, Hodgson claimed on Twitter that he was following CDC guidelines after an initial decision by the court found that his office and ICE likely violated constitutional rights:
.@BristolSheriff has followed @CDCgov guidelines from the start of this pandemic. If following CDC guidelines is a violation of detainee rights, then everyone in America following CDC guidelines has had their rights violated.
— Sheriff Thomas Hodgson (@SheriffHodgson) May 7, 2020
He also shared a statement about the May 7 decision:
I absolutely disagree with Judge Young's decision and have serious concerns and questions about the rationale behind his conclusion. We feel he has far exceeded his authority and we have asked the @TheJusticeDept to seek a emergency stay and appeal in 1st Circuit. My thoughts: pic.twitter.com/Gw1NWfQ5Iq
— Sheriff Thomas Hodgson (@SheriffHodgson) May 7, 2020
CDC guidelines regarding detention are here. According to the new ruling on Tuesday Hodgson and the Bristol County Sheriff’s Office did not following the guidelines completely:
“While BCHOC made some efforts at contact tracing for employees who tested positive, there were no follow-up tests ordered for those with whom the employees may have come into contact and no written policy related to contact tracing at all,” the Tuesday decision said on page 16. “Nor is there any evidence that those who came into contact with COVID-19-positive employees or detainees practiced quarantining as if they were symptomatic themselves, as the CDC expressly recommends.”
News of Young’s Tuesday afternoon decision came at a time where Bristol County reported that more corrections officers and inmates had tested positive for COVID-19:
Advisory: Bristol County Staff, Inmates Test Positive for COVID
(Note: This has been updated with up-to-the-minute information and the previous advisory has been deleted. Sorry for the confusion) pic.twitter.com/dx0pKOz1mh
— Bristol County Sheriff's Office (@BristolSheriff) May 12, 2020