California asks Ninth Circuit to toss suits over Covid outbreak at San Quentin

(CN) — The state of California asked a Ninth Circuit panel on Wednesday to overrule a trial court and dismiss three lawsuits over a Covid outbreak at San Quentin State Prison which killed 28 inmates and one staff member.

On May 30, 2020, months after the pandemic lead to widespread shutdowns and public health emergency orders, 122 medically vulnerable inmates at the California Institute for Men in the Southern California city of Chino were transferred by bus more than 400 miles north to San Quentin, ostensibly to protect them from a Covid outbreak. According to a report by the Office of the Inspector General, the vast majority of the prisoners had not been recently tested for the virus. Upon arrival at the 171-year-old prison, at least two of the inmates were found to be experiencing symptoms of Covid.

Before the transfer, San Quentin had had no Covid cases. Within weeks, more than a thousand San Quentin inmates had been infected. One state lawmaker called the incident the "worst prison health screw-up in state history."

At least eight different lawsuits were filed over the outbreak, including one by the surviving wife of Michael Hampton, an inmate who died in the outbreak. California Attorney General Rob Bonta moved to dismiss the lawsuits, arguing, among other things, that the state and public officials should be protected by qualified immunity, and that the state was also protected by the Public Readiness and Emergency Preparedness (or PREP) Act. Passed in 2005, the law was largely aimed at shielding vaccine manufacturers from liability during a public health crisis, but it also applies to drugs and other products deemed by the Health and Human Services Secretary to be a "covered countermeasure."

This past July, a federal judge refused to dismiss the eight federal lawsuits. "Prisons are not countermeasure programs, nor are they locations for the purpose of distributing countermeasures," U.S. District Judge William Orrick III wrote. "While the act may confer immunity for the administration of countermeasures within a prison context, it does not serve to convert all prison operations into countermeasure programs or locations such that any Covid-related conduct or decisions made within that context are immune."

The state appealed that ruling as applied to three of the lawsuits. During oral arguments at the Ninth Circuit on Wednesday, Deputy Attorney General Jeffrey Fisher argued the outbreak was the result of "a series of decisions made in a time of crisis, during a time of national emergency and a period of uncertainty." Tragic as it was, he added, "the outcome cannot form the basis for liability."

The three-judge panel appeared disinclined to overrule the trial court, and skeptical of the idea that the PREP Act could protect state officials from liability.

"It feels to me we’re in a situation of non-administration," said U.S. Circuit Judge Michelle Friedland, a Barack Obama appointee. PREP was meant to cover the administration of countermeasures — not the failure to administer countermeasures.

Fisher argued the inmates had been tested weeks before the transfer, and that other steps taken by prison officials, such as taking the inmates' temperature, counted as a countermeasure.

"The use of a thermometer is a countermeasure," Fisher said.

Friedland pushed back. "No court has ever said that a thermometer is a covered countermeasure," she said.

Michael Haddad, the lead plaintiffs' attorney, said PREP didn't apply as protection from liability in this case, since the fairly new law "has never been applied to a correctional facility."

As to the issue of qualified immunity, he said, "Any state official who can be found to have killed someone by deliberate indifference should have a steep hill to climb before they get qualified immunity."

The three-judge panel was rounded out by U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, and U.S. District Judge Richard Bennett, a George W. Bush appointee sitting by designation from the District of Maryland. The panel took the matter under submission and will issue a ruling at a later date.

If the court does reject the appeal, the case will proceed in Orrick's court.

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