Judge Calls ICE's Bid To Drop Injunction 'Revisionist History'

By Asher Stockler
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Law360 (March 24, 2021, 7:27 PM EDT) -- A Miami federal judge on Wednesday rejected the government's attempt to dissolve a previously imposed injunction that has been forcing immigration officials in South Florida to comply with federal COVID-19 guidance at three detention facilities.

Southern District of Florida Judge Marcia G. Cooke said that an intervening case cited by the government in its July 2020 motion to reconsider her preliminary injunction did not, as officials had argued, change the standard for deliberate indifference claims.

"The court finds that there is no basis for it to conclude that there was an intervening change in controlling law or a need to correct clear error or prevent manifest injustice to warrant reconsideration of its preliminary injunction," she said.

The case was brought by a collection of immigrants detained inside the Krome Detention Center in Miami, the Broward Transitional Center in Pompano Beach and the Glades County Detention Center in Moore Haven. They accused the government of failing to take necessary precautions to protect against the spread of COVID-19.

Judge Cooke's injunction required U.S. Immigration and Customs Enforcement officials to "immediately comply" with guidelines developed by the U.S. Centers for Disease Control and Prevention, including the regular provision of hand soap, sanitizer and masks. She also ordered the officials to more thoroughly screen detainees and limit contact between them.

ICE argued in its July motion that the Eleventh Circuit's decision the prior month in Swain v. Junior modified the standard for deliberate indifference claims, a basis for the detainees' lawsuit.

"The intervening decision in Swain compels reconsideration of this court's grant of preliminary injunctive relief here because defendants have taken reasonable steps to quell the spread of COVID-19 that do not amount to a showing of deliberate indifference," the government said. "Under Swain, the Eleventh Circuit's intervening change in the standard for deliberate indifference affects the basis on which this court entered its preliminary injunction."

But Judge Cooke disagreed, finding that the Swain court had only reiterated the standard for such claims. In doing so, she said, the Eleventh Circuit cited years-old case law, indicating that there was no rift with the previous standard.

She also said that the underlying facts in Swain were markedly different from the case before her. In Swain, there was a finding that COVID-19 cases had been increasing and that it was impractical to increase social distancing efforts.

Whereas in the present case, there was "far more egregious" conduct than the spread of COVID-19 and lax social distancing, Judge Cooke said. She noted that her court had previously found that immigration officials failed to perform COVID-19 tests before transferring out detainees, provide masks and distribute hygiene products.

"The court's subjective deliberate indifference analysis rested on far more than just the increase in cases at the detention centers and the impossibility of social distancing. Respondents' argument to the contrary is disingenuous and rests upon a blatant perversion of the record in this case," she said. "Unfortunately for respondents, this court cannot countenance revisionist history. As such, the court finds that respondents' Swain arguments lack merit."

Scott Edson, an attorney for the detainees, told Law360 on Wednesday that the ruling was "an important next step in this case."

"The Court recognized the extensive factual record in this case that demonstrated ICE's deliberate indifference, and which is based on the very sort of concrete, factual evidence that the Eleventh Circuit has said is needed to show deliberate indifference," he said. "We look forward to vindicating our clients' rights as we proceed to trial."

Attorneys for the detainees and the federal government did not return requests for comment.

The detainees are represented by Gregory P. Copeland and Sarah T. Gillman of Rapid Defense Network; Scott M. Edson, Kathryn S. Lehman and Chad A. Peterson of King & Spalding LLP; Rebecca Sharpless and Romy Lerner of the University of Miami School of Law Immigration Clinic; Paul R. Chavez of the Southern Poverty Law Center; Mark Andrew Prada and Anthony Richard Dominguez of Prada Urizar PLLC; Lisa Lehner of Americans for Immigrant Justice and Andrea Montavon-McKillip of the Legal Aid Service of Broward County Inc.

ICE is represented by Dexter A. Lee and Natalie Diaz of the U.S. Attorney's Office for the Southern District of Florida.

The case is Gayle et al. v. Meade et al., case number 1:20-cv-21553, in the U.S. District Court for the Southern District of Florida.

--Editing by Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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