Lawyers must ensure ICE isn’t lying about virus in lockup

SAN FRANCISCO -- A federal judge warned attorneys for U.S. Immigration and Customs Enforcement and Geo Group, a private company that manages a Northern California detention center, Tuesday that they must ensure their clients are not lying to them about virus prevention measures in lockups.

After catching the lawyers in a series of allegedly inadvertent inaccuracies over COVID-19 testing procedures at Mesa Verde, an immigration detention facility, U.S. District Judge Vince Chhabria reminded them they are independently responsible if they make further misrepresentations to him.

"There's an obligation to look behind what your clients are telling you," he said.

The judge oversees the class action filed by more than 400 immigrants detained at Mesa Verde and Yuba County Jail seeking their release. They argue state-mandated social distancing is impossible because of cramped and unsanitary conditions at the facilities. Rivas v. Jennings, 20-cv-02731 (N.D. Cal., filed April 20, 2020).

The judge's warning came after the defendants told Chhabria last week that 29 detainees refused testing amid a COVID-19 outbreak at Mesa Verde.

Plaintiffs' attorneys said they followed up with their clients and most said they were not notified of the test or were skeptical of ICE's request to test a second time since their results from a prior test had not been returned.

The judge said Friday at an emergency hearing, "There's no question that this outbreak could have been avoided," citing the defendants' alleged "deliberate indifference."

ICE was also caught in June misrepresenting in court declarations how new arrivals from other facilities are processed and screened for the virus. The agency said the statements were "inadvertently inaccurate."

Fifty-six of 104 people detained at the facility now have the virus, according to Emilou MacLean of the San Francisco public defender's office.

During the Tuesday Zoom video hearing, plaintiffs' attorneys sought medical records for four detainees sent to hospitals recently for severe coronavirus symptoms.

"We understand they may be changing protocols with respect to concerns about the frequency of daily checks and the threshold someone is taken to the hospital," Deputy San Francisco Public Defender Genna Beier said. "We'd like to understand what's happening."

Geo Group attorney Susan Coleman opposed the request and asked to file an opposition brief. "It sounds like they're gathering experts to critique our perceived policies."

Chhabria balked at the assertion. "They shouldn't have to attack any perceived policies," he said. "There should be no difference between what you say you're doing and what you're actually doing."

Coleman said the differences are a result of plaintiffs' attorneys "hearing things from their clients" that are not true.

"It works both ways," Chhabria replied.

"It's possible that what they're hearing from their clients are more accurate," he reasoned. "The obligation is on the USA's office as much as you to look into what your clients are telling you and what they say is happening at the facility."

Plaintiffs' attorneys also urged the federal judge to require retesting of staff who already tested positive if they wish to return to work.

Twenty-nine of 128 employees at Mesa Verde have or have once had the virus, according to plaintiffs' attorneys. They do not know the total number of those who currently have COVID-19 since a formal testing policy was only ordered last week.

Coleman argued that retesting is unnecessary since there are guidelines requiring a 10-day isolation period for employees to return to work if they display symptoms and because detainees, not staff, are primarily spreading the virus within the facility. The first batch of results from emergency staff testing ordered by Chhabria last Friday showed that two of 21 people tested positive, she said.

MacLean responded, "It's not reaffirming that 10% of the staff tested positive."

Chhabria agreed, saying, "I was startled by the expression of gratitude" from the Geo attorney. "It's not clear to me that defendants can be trusted" to enforce its existing staff screening policies.