By Nathan Hale

Law360 (June 8, 2020, 5:42 PM EDT ) U.S. Immigration and Customs Enforcement must improve conditions at three Florida detention centers and limit transfers to address the COVID-19 pandemic, a Florida federal judge has ordered, while also ruling that detainees can pursue claims over the conditions as a single class.

Miami-based U.S. District Judge Marcia G. Cooke did not order any detainee releases and said such requests must be pursued on an individual basis, but she mostly granted the requests of the 58 named plaintiffs in her ruling Saturday on their motions for a preliminary injunction and class certification.

Under the terms of the preliminary injunction, ICE must immediately comply with the U.S. Centers for Disease Control and Prevention's and its own COVID-19 guidelines by providing detainees unrestricted access to soap, masks, disinfectants and other cleaning supplies. It also must step up cleaning routines, provide more education on the new coronavirus for detainees and staff, and limit transportation of detainees to "immediately necessary" medical appointments and releases. The order also imposes substantial reporting requirements on the populations of the three facilities and agency decisions on releases.

The preliminary injunction, which will remain in effect until a trial or other order from the court, replaces a temporary restraining order that expired Friday night.

"In sum, in this moment of worldwide peril from a highly contagious pathogen, the court is not satisfied that ICE's commitment to detention has meaningfully shifted since the start of the pandemic," Judge Cooke said in her 40-page order. "Even with the TRO in place, detainees report that (1) social distancing is still impossible, (2) education on the use and importance of masks is inconsistent, (3) transfers are conducted haphazardly, and (4) cohorting is conducted in a manner that substantially increases the risk of spread of the contagion."

ICE quickly reported compliance with the April 30 temporary restraining order, which directed it to lower the detainee populations at Krome Detention Center in Miami-Dade County, Broward Transitional Center in Broward County and Glades County Detention Center below 75% of their respective capacities and to provide detainees with masks, soap and other cleaning materials.

But the plaintiffs argued that ICE was merely "shuffling people around" to other facilities through transfers conducted in unsanitary fashion and without sufficient screening for COVID-19.

Detainees also testified that current conditions fall short of the order's requirements and the CDC and ICE guidelines.

When the lawsuit was filed April 13, the three facilities had no confirmed cases of COVID-19, but Krome and BTC have each since reported 20 positive tests, and Glades has counted 60 and is quarantining all 320 detainees in a single group cohort out of concern they may have been exposed to the potentially lethal disease.

The judge ruled that ICE may no longer place detainees in cohort quarantine without confirming the detainee has COVID-19, citing evidence of asymptomatic carriers.

Judge Cooke granted the preliminary injunction after finding the detainees showed they were likely to succeed on claims that ICE violated their rights under the Fifth and Eighth amendments by creating an undue increased risk of severe illness or death, including through "deliberate indifference."

"Credible testimony and sworn declarations filed in this matter after the issuances of the TRO suggest that ICE has only partially complied with its own directives or CDC guidelines despite its submissions to the court and paint a grim picture of an agency steeped in deliberate indifference," she said.

Judge Cooke also rejected ICE's assertion that its decisions about facility management and detainee transfers are not subject to judicial review, saying the agency's authority "is not absolute."

The detainees cautioned that approving class treatment only for their condition of confinement claims but not their demands for release under writs of habeas corpus would prevent meaningful relief, but Judge Cooke found the habeas claims failed to satisfy commonality and typicality requirements because they require individualized assessments.

The judge, however, approved a broad class, covering all civil immigration detainees held at Krome, BTC and Glades since the lawsuit was filed. In another rebuke of ICE's arguments, she also said the class includes detainees transferred to other facilities, even outside of Florida.

"The witness testimony that we presented to the court shined a light on the dangerous conditions that persist at ICE detention facilities," Scott M. Edson of King & Spalding LLP, who is representing the detainees, said Monday. "We are glad that the court has recognized the gravity of those conditions and took action to ameliorate them."

A spokesman for ICE said it is agency policy not to comment on pending litigation.

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

The government is represented by Dexter 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 Orlando Lorenzo.

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