San Diego County is at a crossroads. We are in the midst of an extended period of previously unimaginable suffering disproportionately borne by segments of our community already disadvantaged in terms of health care, housing, and economic opportunity, who are also disproportionately incarcerated. More than six hundred thousand lives have been lost throughout the country over the past year and a half. Moreover, we are starting to learn of ever more virulent and potentially deadly variants of the virus that causes COVID-19—including the Delta variant, which spreads nearly twice as easily as its predecessors—that show some resistance to antibodies generated by COVID-19 vaccines or prior infection and are associated with severe illness and death.
Even as the development of vaccines has provided a glimpse of light at the end of the tunnel, top public health officials and scientists, including Dr. Anthony Fauci, have warned that the United States is moving “in the wrong direction” in the battle against the virus, as infection rates have begun to dramatically rise across the country, including here in San Diego County.
The widespread availability of COVID-19 vaccines and better understandings of how to mitigate the spread of the virus have erased any question that there are reasonable methods of protecting the most vulnerable people in our community from further ravages of the deadly novel coronavirus. The obligation to provide this protection is particularly pronounced when it comes to people who are incarcerated in San Diego County jails, because they are forced to remain behind bars in a congregate setting—living, eating, and sleeping in close proximity to each other, unable to take many of the precautions our elected leaders and public health officials regularly tell us are essential. The need to avoid letting our guard down has become especially stark in recent months with the emergence of the Delta variant. As it was when the pandemic first hit, congregate settings like jails will be the first to absorb the brunt of any new outbreaks, for the precise reason that the people inside are vulnerable, crowded, and prevented from exercising the free choices to protect themselves that people on the outside enjoy.
And yet, San Diego County Sheriff William Gore has failed to implement basic common sense precautions that could protect the lives of the people we have entrusted to his care. On March 10, 2021, the ACLU Foundation of San Diego & Imperial Counties (ACLUF-SDIC); Community Advocates for Just & Moral Governance (MoGo); and Singleton, Schreiber, McKenzie & Scott, LLP (SSMS) filed a class action lawsuit demanding that San Diego County Sheriff Bill Gore take steps to protect people incarcerated in local jails from exposure to COVID-19.
Filed in San Diego County Superior Court, the lawsuit demands that Sheriff Gore take measures to guard against deadly COVID-19 outbreaks, which may include, for example, reducing the population of the jails to levels that allow people to practice and maintain safe social distancing, and providing widespread vaccinations in the jails at levels that can ensure the safety of everyone incarcerated there.
The lawsuit alleges that Sheriff Gore continues to confine people in dormitory style barracks and multiple-person cells with bunk beds stacked three high, with nearly every bunk occupied, where people sleep in close proximity, forced to breathe each other’s air. Some of the individual jail facilities are filled bursting to capacity or beyond. The complaint alleges that, under these conditions, it is impossible for people who are incarcerated in the jails to stay anywhere close to six feet away from other people. The lawsuit further alleges that these problems are compounded by jail practices involving routine transfers of incarcerated people between different jail facilities without adequate testing, widening the circles of potential outbreak and exposure, and that the Sheriff continues to rely on incarcerated people to perform jobs that require frequent movement through the jails. These conditions create an intolerably high risk of COVID-19 transmission and have led to numerous large-scale outbreaks throughout the San Diego County jails.
The Sheriff has not provided any documentation of the percentage of the incarcerated population that has been vaccinated, and has not provided a timeline or plan for achieving widespread vaccination. This is true even though at least one person has died of COVID-19 contracted in the jails, and nearly 1,300 incarcerated people have tested positive for the virus, along with nearly 600 staff members. Most recently, there was a massive outbreak this past Spring, in which over 100 people had to be tested for COVID-19, and 47 contracted the virus, after coming into contact with someone who tested positive for the virus after being transferred into the George Bailey Detention Facility. There is no indication that the Sheriff has taken precautions that could prevent a similar outbreak in the future. This is especially disturbing given the heightened virulence of the Delta variant, which has the potential to spread like wildfire in packed congregate environments like the San Diego County jails.
The lawsuit argues that the Sheriff has violated the California constitution by failing to provide for the reasonable safety and medical needs of people who are incarcerated in the San Diego County jails, acting in a manner that is “deliberately indifferent” to those needs, in violation of the due process rights of people who are in custody awaiting trial, and in violation of the right of people who have been convicted of a crime to be free from cruel and unusual punishment. The suit also alleges the Sheriff failed to meet his duty to provide for the safety of people in the jails under Government Code section 8658, and that he has engaged in disability discrimination in violation of Government Code section 11135 by placing people whose disabilities render them especially vulnerable to the virus at heightened risk of severe illness or death due to COVID-19, and by failing to make reasonable modifications to his policies or practices that would abate that risk.
The Sheriff filed a “demurrer” to the case (basically, a motion to dismiss the case) on June 2, 2021. After briefing and oral argument, the judge overruled the demurrer on July 16, 2021, allowing the case to proceed, and requiring the Sheriff to file an Answer to the Complaint within 20 days.