‘Deliberate indifference’ to virus at immigrant lockup, judge says

Eleven new cases of COVID-19 at a Northern California detention center were discovered over the weekend, U.S. Immigrations and Customs Enforcement revealed in court filings Monday in response to urgent testing ordered by a federal judge to address what plaintiffs' attorneys have called a "crisis" at the facility.

Fifty-six of 104 total people detained at Mesa Verde now have the virus, according to a lawyer representing a class of detainees at the center suing for their release.

Bree Bernwanger of the Lawyers' Committee for Civil Rights called the situation "preventable and foreseeable" since ICE had rapid, point-of-care tests it chose not to use, opting to instead utilize lab tests that take days longer to return results.

"Willful ignorance has been their M.O. for the beginning," she said. "Instead of keeping people safe, they didn't test them."

More than 400 immigrants detained at Mesa Verde and Yuba County Jail sued ICE in April for their release, claiming state-mandated social distancing is impossible because of cramped and unsanitary conditions. Rivas v. Jennings, 20-cv-02731 (N.D. Cal., filed April 20, 2020).

On Friday, U.S. District Judge Vince Chhabria held an emergency hearing after it was discovered that 32 detainees tested on Aug. 11 have the virus. He ordered ICE and the GEO Group, a private company that manages the facility, to test everyone who is already not confirmed to have COVID-19 over the weekend to ensure it does not spread further.

Chhabria said "There's no question that this outbreak could have been avoided," citing the defendants' "deliberate indifference."

Testing showed that 11 of 63 people thought not to have COVID-19 and were mixed with the general population are actually positive, according to court file from the Justice Department.

ICE tests detainees weekly using lab tests, which take four to five days to return results, despite having point-of-care tests, which only take minutes. Bernwanger said the situation is a result of ICE mixing those whose tests had still not been returned with the general population.

"They just completely disregarded the danger involved in waiting and commingled people," she said. "They've had enough point-of-care tests to test everyone in the facility at least once for some time."

ICE has maintained it has a limited resources. It did not respond to requests for comment.

Twenty-nine of 128 staff members at Mesa Verde were also confirmed to have the virus, according to plaintiffs' attorney Emilou MacLean.

The deputy San Francisco public defender said there was no protocol to test staff until Chhabria ordered ICE to test all employees on Friday. She lamented the way in which ICE's failure to properly implement a staff testing policy worsened the crisis for detainees at Mesa Verde.

"ICE's disregard for the safety of its own staff doesn't just affect them; it affects the detained population and surrounding community," she said.

Staff must now be tested weekly until further notice under Chhabria's order.

In a scathing critique of the agency's response to the pandemic, Chhabria granted in June a preliminary injunction in favor of the detainees to maintain reduced capacity at Mesa Verde to allow for state-mandated social distancing but declined to order broader changes, such as ordering ICE to stop transferring detainees or capping the number of people who can be housed there.

Although the judge suspended intake at Mesa Verde in a temporary restraining order in August, Bernwanger urged Chhabria to cease presuming that ICE will engage in good faith efforts to protect the safety of detainees.

"These are agencies that aren't entitled to court deference," she said. "When they get it, they abuse it."