The Seventh Circuit revived a lawsuit alleging Kenosha County forced civil immigrant detainees housed at its jail to do unpaid janitorial work or be punished, ruling Friday the forced labor statute doesn't allow local jails to force detainees to work "on pain of solitary confinement" or loss of phone privileges. 

In a seven-page opinion, the Seventh Circuit vacated a Wisconsin federal court's order dismissing a proposed class action accusing Kenosha County, its county jail and sheriffs' department of violating the Trafficking Victims Protection Act when it forced civil immigrant detainees to perform various janitorial services without pay and against their will. 

Beginning in 2000, the Kenosha County Jail had contracts with the U.S. government through an "Intergovernmental Service Agreement with the U.S. Marshals and Immigration and Naturalization Service to house civil immigration detainees." The appellants say if they refused to do janitorial work, they were either punished or threatened with punishment, which included being locked down in their cells or solitary confinement for multiple days. 

The suit was brought under 18 USC section 1589, a criminal statute that says "whoever" knowingly provides or obtained one's labor through force, threats of force, physical restraint or threats of physical restraint to the individual, will be punished. 

"Putting the prohibitions in [Section] 1589(a) together with the definitions in [Section] 1589(c) leads to the conclusion that a county jail violates [Section] 1589 by threatening civil detainees with solitary confinement to coerce them to work," the Seventh Circuit noted. "Section 15891(a)(1) says that threats of 'physical restraint' are forbidden — and solitary confinement is one form of physical restraint."

Other parts of the statute forbid using "abuse of the law or legal process" to force someone into labor, the panel added. That phrase, as defined in the statute demonstrates that when the law or legal process permits work — as laws might for convicted inmates — there is no abuse in requiring that work, the opinion said. 

"The contracts under which federal agencies have sent detainees to the county jail say, to the contrary, that the jail is authorized to offer paid work to detainees, not that it is authorized to compel unpaid work from detainees," the circuit judges said. 

Friday's opinion comes nearly three years after a trio of Kenosha County civil immigrant detainees brought their lawsuit claiming they had to clean common areas of the jail, including dayrooms, showers, indoor and outdoor recreational areas, hallways, and the gym. 

The county defendants moved to nix the suit in November 2023, arguing the plaintiffs don't get a "free pass" to be excused from rules that apply to everyone else. The TVPA doesn't allow the plaintiffs to circumvent settled legal norms governing confinement conditions, the county says. 

Nor were the plaintiffs trafficked across international lines into forced labor, the dismissal bid says — rather, they were civilly detained by the U.S. government. Kenosha County Jail isn't a labor recruiter of trafficked people, and it doesn't profit form forced labor, the defendants argue. 

They add that the county defendants are protected under the derivative sovereign immunity doctrine as they were acting as an arm of the federal government by implementing cleaning rules and disciplining those who do not follow them. 

In September 2024, U.S. District Judge Brett Ludwig nixed the case after finding that section 1589 only applied to human trafficking, which can't plausibly be applied to discipline during lawful custody, according to Friday's opinion. 

Judge Ludwig ruled that the jail policy at issue was "hardly unique" as prisons, jails and detention facilities have long required inmates to conduct basic cleaning tasks without pay and face discipline if they didn't pitch in. 

The judge added that the plaintiffs sought to "take advantage" of the federal forced labor statute to claim they're entitled to damages as illegal human trafficking victims. However, the challenged conduct doesn't implicate the statute; requiring inmates and detainees to help clean common areas don't constitute obtaining one's labor or services through improper ways, the dismissal ruling stated. 

On Friday, the Seventh Circuit said the Eleventh Circuit in its 2020 ruling in Barrientos v. CoreCivic Inc., the Fifth Circuit in its 2021 ruling in Gonzalez v. CoreCivic Inc., and the Third Circuit in its 2023 decision in Burrell v. Staff all previously concluded the forced labor statute applies to labor services required of civil immigration detainees. 

The Eleventh Circuit in Barrientos held that a Georgia immigration detention center's "voluntary work program" wasn't actually voluntary and ruled that private contractors running those centers are subject to the TVPA. 

In Gonzalez, a divided Fifth Circuit panel upheld a Texas district court's order that said CoreCivic must face a proposed class action claiming the company ran forced labor camps that violated the detainees' human rights. 

In the Burrell matter, the Third Circuit revived a lawsuit by incarcerated individuals who argued they were wrongly denied the minimum wage for work they performed at a Pennsylvania recycling center after finding they adequately argue they were employees who should be afforded federal protections. 

"Adopting the district court's approach would put us in conflict with those three circuits," the Seventh Circuit judges said Friday, adding that the appellants argue that none of them have been convicted of a crime. 

Furthermore, counties lack sovereign immunity that's afforded to their parent states, and they are treated as their citizens, just like any natural person, the opinion noted. That means, a county is a "person" subject to a suit seeking damages, the judges added. 

While states can invoke sovereign immunity, counties and other municipalities cannot, the Seventh Circuit said, and accordingly, the Wisconsin county defendants are bodies that are authorized to file lawsuits and be sued, the opinion added. 

"Whatever may be said about convicted felons and market transactions, nothing in either the text or context of [Section] 1589 permits a local jail to compel civil detainees — persons not subject to punishment — to work on pain of solitary confinement or loss of phone contact with the outside world," the opinion concluded. "The complaint alleges threats that cannot be dismissed as too slight to activate the statute."

Representatives for the appellees did not immediately respond to requests for comment Monday. 

"The court's decision makes clear that civilly detained immigrants are not beyond the TVPA's reach," Margaret E. Truesdale of Hughes Socol Piers Resnick & Dym Ltd. said in a statement to Law360 on Monday afternoon. "This victory brings our clients one step closer to justice and sends an important message about the rights of civilly detained immigrants across the country."

U.S. Circuit Judges Michael B. Brennan, Frank H. Easterbrook and Diane S. Sykes sat on the panel for the Seventh Circuit.

The appellants are represented by Elizabeth N. Mazur and Margaret E. Truesdale of Hughes Socol Piers Resnick & Dym Ltd., Raphael Janove of Janove PLLC, Jacob S. Briskman of Law Office of Jacob S. Briskman, and Jay Kumar of Jay Kumar Law.

The appellees are represented by Remzy D. Bitar and Samantha R. Schmid of Municipal Law & Litigation Group SC.

The case is Aleksey Ruderman et al. v. Kenosha County Wisconsin et al., case number 24-2939, in the U.S. Court of Appeals for the Seventh Circuit.

--Editing by Kristen Becker.

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