9th Circuit says city can amend private prison contract, despite state law

A city in Kern County can change a deal with a private prison company in defiance of a state law, a 9th U.S. Circuit Court of Appeals panel ruled this week.

On Monday, the court threw out a preliminary injunction barring the city from modifying conditional use permits with the Geo Group Inc. Pending a remand back to the lower court, the ruling could mean the company could again start accepting new detainees at its two immigration lockups in the city of McFarland. Immigrant Legal Resources Center v. City of McFarland, 1:20-cv-00966-TLN-AC (E.D. Cal., filed July 10, 2020).

In April, the city council voted to allow the company to convert two unused prison annexes to hold detainees. An immigration rights group sued, claiming the city violated open meeting requirements when it made the decision and would be putting detainees at risk of contracting COVID-19.

The city went through the proper public meeting process, said the panel consisting of Judges Andrew J. Kleinfeld, Andrew D. Hurwitz and Patrick J. Bumatay.

They also found that U.S. District Judge Troy L. Nunley abused his discretion when he found allowing the modifications to go through would cause "irreparable harm" to possible future detainees.

"Notably, the district court focused its irreparable harm analysis on the prospect of harm to third parties," the panel wrote. "The standard for preliminary injunctions, however, requires irreparable harm to the plaintiffs themselves." See Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 886 F. 3d 803, 822 (9th Cir. 2018).

The case is part of a larger battle by the state to ban private prisons. In their complaint, the plaintiffs cited SB 29. This 2017 state law bars local governments from signing new agreements with private companies that want to house immigration detainees.

Geo also sued to block SB 29 "as an unconstitutional attempt by the state of California to regulate and discriminate against the federal government and its contractors."

On Aug. 31, Nunley temporarily barred enforcement of the law, citing Geo's appeal of his now-overturned injunction in the case filed by the Immigrant Legal Resources Center. The GEO Group, Inc. v. Newsom, 2:20-cv-00533-TLN-AC (E.D. Cal., filed March 9, 2020).

-- Malcolm Maclachlan