Immigration Officials Off the Hook for Assaults

     (CN) – Eight women sexually assaulted at a privately run detention center for immigrants cannot sue the U.S. officials who knew of lapses in protocol meant to keep detainees safe, the 5th Circuit ruled.
     The women had filed their suit in October 2011, as their attacker, Donald Dunn, awaited sentencing in Texas after pleading guilty to state and federal charges arising from the assaults. A federal judge in Austin sentenced Dunn the next month to 10 months in prison.
     Dun had worked for Corrections Corporation of America (CCA), a private firm contracted by Williamson County, Texas, to operate the T. Don Hutto immigration detention center in Taylor, Texas.
     Each plaintiff had been released from detention center after presenting a plausible case for asylum. Hutto sexually assaulted the women while transporting them by himself to the bus station or airport.
     But Williamson County’s contract with CCA incorporates the terms of the agreement with U.S. Immigration and Customs Enforcement (ICE) that “at least one (1) transportation officer shall be of the same sex as the residents being transported” during all transportation activities.
     The women presented evidence that at least 22 male officers made 77 transport trips with female detainees without a female officer present, in violation of the terms of the contract.
     They also claimed that ICE contracting officers George Robertson and Jose Rosado failed to monitor and enforce the contract, showing a “deliberate indifference” to the “risk of assault and sexual assault.”
     Though a federal judge refused to dismiss the claims against them on the basis of qualified immunity, a three-judge panel with the 5th Circuit reversed Tuesday, saying the contract violations did not automatically indicate a risk of serious harm.
     “The relevant service agreement provision creates a background legal obligation that, if fulfilled, likely helps minimize the risk of sexual assault during detainee transport,” Judge Emilio Garza wrote for the New Orleans-based panel. “But plaintiffs, in effect, want us to ratify the inverse statement: If an official knows of a contractual violation, then the risk of sexual assault automatically becomes constitutionally ‘substantial.’ This we decline to do.”
     The opinion said the ICE officers had no knowledge of the previous sexual assault of detainees during transports, and one previous assault of a detainee in her cell is insufficient to show the detainees suffered a persistent risk.
     “We hold that no clearly established law provides that an official’s knowledge of contractual breaches and of the breached provision’s aim to prevent sexual assault of detainees, standing alone, amounts to deliberate indifference in violation of a detainee’s Fifth Amendment rights, because no controlling authority provides that such breaches are ‘facts from which the inference could be drawn that a substantial risk of serious harm exists,'” Garza said.

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