ACLU, Broward sheriff brawl in court over COVID safeguards for inmates

Gergory Tony’s office accuses advocates of ‘padding their war chest’

By: - September 30, 2021 3:30 pm

Barbed wire. Credit: Alex Potemkin, Getty Images.

The Broward Sheriff’s Office in South Florida has filed a sharply worded response to the ACLU’s complaint that it is violating a settlement agreement mandating COVID-19 protections for inmates at the Broward County Jail.

In a 24-page pleading filed this week in the U.S. District Court for the Southern District of Florida, attorneys for the office, or the BSO, argued that it is complying with the agreement and that the ACLU Foundation of Florida brought its complaint solely to attract publicity and raise money.

“’No good deed goes unpunished’ is an overworn cliché. But it certainly is an apt one, here,” the office’s pleading says.

“Despite BSO’s best efforts to do the right thing, plaintiffs are determined to remain before this court. It matters not whether plaintiffs’ motive is self-aggrandizement or publicity or fear of irrelevance or padding their war chest. It only matters that both procedurally and substantively, plaintiffs are not entitled to the relief they seek.”

The ACLU and the Sullivan & Cromwell law firm, representing Disability Rights Florida on behalf of detainees, filed a motion on Sept. 21 asking U.S. District Judge William Dimitrouleas to enforce a consent decree — a court order enforcing the settlement agreement — approved in May and requiring Sheriff Gregory Tony and his office to implement COVID protocols.

It pointed to a surge in infections at the facility, rising from a single positive case among inmates as of July 18 to 129 by Sept. 20 — evidence, the ACLU organization argued, of insufficient testing, social distancing, and vaccinations.

The ACLU motion accuses Tony’s office of various infractions, including failure to test every new inmate upon arrival.

It alleges the jail doesn’t always test inmates showing COVID symptoms; is not segregating infected inmates away from noninfected ones; provides insufficient protective gear; fails to enforce social distancing; fails to provide COVID education to inmates; and fails to adequately monitor medically vulnerable inmates for COVID symptoms.

The sheriff’s office has acknowledged it began testing all new arrivals only in August, the ACLU motion says.

“And perhaps more troubling, BSO’s representation is patently false, according to their own data. For example, BSO reported that for the week ending Aug. 25, 2021, it had tested 173 detainees, but had admitted 499 new people to the jail during that same period, making it impossible that every newly admitted person was tested.”

Although officials did mount a vaccine drive in May, they don’t provide “prompt or repeated” access to vaccines, the ACLU motion says. It asks the judge to rectify the problem through steps including requiring provision of vaccines within 72 hours of a request; monthly vaccination drives with incentives for taking the shots; and mandatory education programs to encourage corrections officers to become vaccinated.

The ACLU motion places the vaccination rate among detainees at 28.2 percent. By contrast, the vaccine refusal and acceptance rates among inmates within the state prison system both are 45 percent, according to a Florida Department of Corrections survey cited by the inmates’ lawyers.

“Across the country, correctional facility staff have also exhibited an alarming degree of vaccine hesitancy,” the motion says. “Vaccine hesitancy among correctional facility staff makes it harder to prevent transmission from community spread and to protect detainees from infection.”

The document suggests requiring jail staff to be vaccinated and submit to regular testing.

The sheriff’s office opened its reply brief by complaining that the ACLU was attempting to rush the dispute to the courthouse by filing an emergency motion notwithstanding that the jail was complying with the consent decree.

That document required the ACLU to negotiate disputes with the office under strict timetables. Instead, the sheriff’s office argued, the organization ran to the judge.

“Plaintiffs somehow managed to cobble together and file their 43-page motion … less than a day after declaring an impasse. Sure they did. Plaintiffs had teed up their improper motion and were filing it irrespective of any conferral, because the ACLU was starved for publicity,” the rely brief says.

“Plaintiffs made no good faith effort to resolve their dispute with BSO before seeking this court’s intervention. And plaintiffs never intended any such effort, because resolution was not their end game. Self-aggrandizement/self-promotion, publicity, and maintaining the ACLU’s relevance post-settlement were. So here we are.”

The brief details areas in which the sheriff’s office insists it is complying with the consent decree, including testing of all incoming detainees and appropriate medical isolation for those testing positive for the coronavirus. The office offers commissary bags worth $25 as an inducement for detainees to take their shots. It put the number of those vaccinated at 1,700.

“Plaintiffs should be required to establish that BSO’s vaccination policy is deliberately indifferent to a serious risk of harm to plaintiffs,” the office argues.

“But plaintiffs are well-aware that BSO’s policy of free COVID vaccinations for all detainees who want them, together with the educational and vaccine encouragement efforts already unilaterally established by BSO … are not deliberately indifferent as a matter of law,” the motion says.

“So plaintiffs are left with creating the fiction that their demand for new terms really is nothing more than a modification. It is much more than that, and plaintiffs should be held to their required proof to get what they want,” the office concluded.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.