Government requests reconsideration of Bristol County injunction.

 
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Byline: Kris Olson

Believing they have undertaken "very serious efforts" to reduce the risk of infection at the Bristol County House of Corrections, the defendants in Savino v. Souza, et al., have asked U.S. District Court Judge William G. Young to take a "second look" at a preliminary injunction he granted back on May 7.

Young's order precludes ICE from admitting any new detainees to the facility and also mandates that COVID-19 testing be offered to all detainees and staff, with a "comprehensive plan" on conducting that testing due by May 28.

In his subsequent written decision, Young decried the government's "near-complete refusal" to take steps to reduce the risk of an outbreak at BCHOC, which ultimately led him to conclude that "deliberate indifference" had been shown to the detainees, a term of art indicating that the detainees' Fifth Amendment rights were being violated and relief was warranted

In his 39-pagemotion, Assistant U.S. Attorney Thomas E. Kanwit suggests Young has unfairly characterized their efforts.

Kanwit points to the lack of evidence of the alleged inadequacy of the steps taken by the defendants, pointing to the single positive COVID-19 test at the facility over the eight-week course of the litigation.

Kanwit notes that Young had set the "roles and procedure" for making social distancing more feasible within the facility by considering the release of detainees in batches of 10 per day but then faulted the government for not having agreed to release detainees of its own accord.

"This is like the Court getting in the driver's seat, picking the destination and blaming the passengers for not driving the car," he writes.

The fact that the defendants agreed with more than half of the releases Young ordered shows they engaged in the process in good faith, Kanwit writes.

Kanwit also argues that, while Young on April 7 raised the issue of how much of a reduction in the Bristol detainee population might be "enough" to ensure social distancing, that issue was never resolved, despite extensive briefing.

While Young wrote that the defendants had set up a "wholesale blockade on bail," Kanwit says this is "not a fair or accurate characterization."

Kanwit says Young also erred in finding that the defendants' failure to conduct wide scale testing of asymptomatic detainees and staff was evidence of "deliberate indifference."

"This was not, however, the standard of care when the lawsuit was filed and it is not the standard now," he...

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