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Social distancing measures remain in place at county jail

Tuesday, June 02, 2020
Chicago Daily Law Bulletin
by Patricia Manson

Measures designed to stem the spread of COVID-19 in the Cook County Jail will remain in place — at least until a federal appeals court takes a look at them.

In a written opinion last week, U.S. District Judge Matthew F. Kennelly declined to stay a preliminary injunction directing Sheriff Thomas J. Dart to impose social distancing and other virus-protection practices in the jail.

Social distancing practices include halting the use of “bullpens” to hold multiple new detainees and operating dormitory-style tiers at less than 50% capacity.

The other virus-protection practices include obtaining face masks for people exposed to infected or quarantined detainees, promptly testing detainees who show signs of the coronavirus disease and enforcing cleaning and sanitation requirements in showers, bathrooms, day rooms and other common areas of the jail.

Kennelly held Dart had not shown he is entitled to a stay while his challenge to the injunction is pending before the 7th U.S. Circuit Court of Appeals.

He does not dispute that Dart has acted in good faith, Kennelly wrote.

“But the [s]heriff’s intent was not and is not the issue,” he wrote. “The law in this [c]ircuit is clear that conditions of confinement cases involving pretrial detainees are judged by a standard of objective reasonableness, not by assessing whether the [s]heriff had good or bad intentions.”

On another matter, Kennelly denied a motion for expedited discovery filed by the plaintiffs who brought the class-action lawsuit against Dart.

Dart concedes that filing an appeal of a preliminary injunction does not halt action in the underlying case, Kennelly wrote.

“It follows that a party who is preliminarily enjoined is not relieved of the obligation to provide discovery in response to appropriate requests,” he wrote.

“In addition, as the [s]heriff likewise conceded at argument, an appeal does not prevent the district court from enforcing a preliminary injunction.”

But Kennelly declined to rule on specific discovery disputes between the parties.

Noting he was acting as emergency judge, Kennelly wrote that “whether and to what extent plaintiffs may engage in discovery” are not emergency matters.

“The only aspect that is urgent is the request for expedited discovery,” Kennelly wrote.

In any event, he continued, the plaintiffs have not properly served their discovery motions.

The suit was filed April 3 by two detainees who allege Dart is violating the due process clause by failing to provide people in the jail with “reasonable protection” against COVID-19.

Six days after the suit was filed, Kennelly entered a temporary restraining order imposing some of the requirements sought by the plaintiffs.

He entered the preliminary injunction on April 27 granting essentially the same relief.

Kennelly in the TRO and preliminary injunction denied the plaintiffs’ request for more sweeping relief.

The relief requested included the relocation of detainees who are especially vulnerable to the coronavirus, the establishment of a three-judge court to consider detainees’ requests for release and the distribution of personal protective equipment to every detainee.

On May 11, Dart filed a motion to strike the plaintiffs’ request for expedited discovery and his notice of appeal from the preliminary injunction. He moved to stay the injunction on May 19.

The case is assigned to U.S. District Judge Robert W. Gettleman. Kennelly ruled on Dart’s motion for a stay and the plaintiffs’ motion for expedited discovery in his role as emergency judge.

In his opinion Friday, Kennelly wrote Dart failed to meet the four elements needed to obtain a stay of the injunction.

Dart did not make “a strong showing that he is likely to succeed on the merits,” Kennelly wrote, quoting Hilton v. Braunskill, 481 U.S. 770 (1987).

Before he issued his TRO and injunction, Kennelly wrote, Dart had taken steps to stop the spread of the coronavirus.

“But the Constitution does not say that so long as a jailer does something, he complies with constitutional obligations,” Kennelly wrote.

“Rather, if jailer does not take objectively reasonable steps to protect detained persons from a known and serious risk, he violates the Fourteenth Amendment.”

And the TRO and preliminary injunction require Dart to take objectively reasonable steps “he was not already taking or was not taking in an effective way,” Kennelly wrote.

He wrote Dart also failed to show he would suffer irreparable harm if he was not granted a stay of the injunction.

The injunction does not impose an undue burden on Dart, Kennelly wrote, noting he denied the plaintiffs’ motions that he appoint outside monitors and allow inspections of the jail.

Kennelly concluded that staying the injunction would pose a risk of substantial injury to class members — detainees in the jail — because Dart could lift the virus-protection measures he is now required to implement.

And Kennelly wrote keeping the injunction in place is in the public interest.

Most detainees have family members outside the jail, Kennelly wrote.

“Their interests are part of the public interest,” he wrote. “And the detained persons’ constitutional rights — and their health and lives — are at stake.”

The case is Anthony Mays, et al., v. Thomas Dart, No. 20 C 2134.

The lead attorneys for the plaintiffs are Sarah C. Grady of Loevy & Loevy and Alexa Van Brunt and Locke E. Bowman III, both of the Roderick and Solange MacArthur Justice Center Clinic at Northwestern University Pritzker School of Law.

Van Brunt said the plaintiffs are pleased with the ruling.

But contending the sheriff is not complying with Kennelly’s order, she said the case is not over.

“Plaintiffs may also seek additional relief to protect detainees from the spread of the virus,” Van Brunt said in an email.

“The COVID outbreak in the [j]ail is unfortunately likely to get worse as arrests go up in the summer (including as the Chicago Police Department continues to arrest many racial justice protesters) and the [j]ail gets more crowded, making social distancing even more difficult.”

The lead attorneys for Dart are James M. Lydon and Robert T. Shannon, both of Hinshaw & Culbertson LLP.

The sheriff’s office said it is disappointed with the ruling, but "will continue to comply fully with the order’s requirements.”

In his opinion, the office said in an email, Kennelly noted he had rejected most of the relief sought by the detainees when he issued the TRO and preliminary injunction.

“This is because we have worked tirelessly and honestly in our response to COVID-19 in the jail,” the office said.

“We maintain, however, that the law does not allow counsel for plaintiff to threaten contempt proceedings, accuse our staff of false reporting to the court and insert themselves and their inexperienced opinions into the complex and multifaceted operation of the jail during this pandemic.”

The office said it will continue with its appeal.



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