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Ninth Circuit questions union influence in weighing vaccine mandate for prison guards

The union — and the state of California — claim a mass retirement by prison guards opposed to the Covid vaccine would undermine public safety.

SAN FRANCISCO (CN) — A Ninth Circuit panel on Tuesday questioned whether California is beholden to its politically powerful prison guard’s union on issues of inmate civil rights as it weighs whether to uphold a vaccine mandate that a lower court judge imposed on correctional staff.

This past September, U.S. District Judge Jon Tigar ordered the state to carry out a court-appointed receiver’s recommendation that all prison staff be vaccinated, concluding the prison system’s failure to implement a vaccine mandate for staff constitutes deliberate indifference to inmates’ serious medical needs in violation of the Eighth Amendment.

Tigar is overseeing a two-decade class action over inadequate medical care and prison overcrowding, and issued the vaccination mandate at the request of a receiver appointed to manage the prison health care system. For a while, Tigar took a hands-off approach, allowing the California Department of Corrections and Rehabilitation to manage the Covid-19 threat with little direct intervention from the court. But that changed when an outbreak at San Quentin State Prison, reportedly caused by a prison transfer from a coronavirus hotspot, killed 28 inmates and one guard.

In December, the Ninth Circuit temporarily blocked the mandate from taking effect by Jan. 12 as Tigar had ordered until it could hear oral arguments.

Though his administration had at one time ordered vaccinations or testing for all state employees, including those in the prison system, Governor Gavin Newsom’s office stepped in to oppose the mandate. He was joined by the California Correctional Peace Officers Association, who argued that 700 of its members may choose to resign or retire rather than accept the vaccine, leading to staffing shortages that could undermine safety.

Deputy Attorney General Martha Ehlenbach made the same argument before a panel of Ninth Circuit judges on Tuesday. "If the California Department of Corrections were to lose a similar number of staff members that would cause a significant adverse impact on prison operations. So the operational concerns are real,” she said.

“Are you that saying the correctional officers have a veto power effectively over whether something is an Eighth Amendment violation or not?” asked U.S. District Judge Gary Feinerman, a Barack Obama appointee sitting by designation from the Northern District of Illinois.

“Individual officers are free to choose to leave their positions at any point in time,” Ehlenbach answered. “But it is certainly within the executive’s prerogative to consider any operational concerns and to weigh those concerns as matter of public policy and public safety.”

U.S. Circuit Judge Morgan Christen, also an Obama appointee, expanded on Feinerman’s line of questioning. “This is a really important point, because the timeline strikes me that the state was moving along and agreeing to an implementation plan and then when the union became involved everything came to a screeching halt. How hard did the state push? What kind of record do we have to show whether or not the state had the ability to simply hire other workers who are being trained anyway to the extent some of these 700 folks did choose to retire?"

Ehlenbach said that while it is easier to hire contract medical workers, there are no contracts in place for correctional officers, and fewer recently graduated cadets to fill those spots.

Attorney Gregg McLean Adam for the Correctional Peace Officer Association said he doesn’t know where the panel got the idea that the union has a “veto” on policy.

“It isn't a subtle point,” Christen interjected. “That is how the record reads, as though the state was cooperating and then your constituency didn't want to go along, so what am I missing?”

Adam said the union has been “out front” supporting vaccines, but losing 700 people would be devastating for a system already very overstretched.

“We support voluntary vaccination. We opposed the mandate because we can't afford to lose people,” he added. “In public safety, people are leaving in droves all over the place. We have a responsibility. We can't just keep working people to death here.”

Adam said the state “acted reasonably” by requiring regular Covid-19 testing and requiring staff to wear masks. “It’s hard to show deliberate indifference given everything the state did,” he said.

Brad Brian, an attorney with Munger, Tolles & Olson who represents the inmates, said voluntary vaccinations for prison staff were ineffective. “We know that because the vaccination rates for custody staff were below 50% and some were in the teens before the judge issued his order,” he said.

“It seems the hardest part for your side is the state has taken a large number of different measures,” said U.S. Circuit Judge Daniel Bress, a Donald Trump appointee. "We can debate whether something would have been better but the legal standard creates your biggest obstacle.”

Brian answered: “Except the law is clear that you look at what’s currently available. You look at the measures they’re taking now. The state doesn’t get a pass because it tried to do the right thing with available measures. We now know that those measures didn’t work. There were an unacceptable number of infections, an unacceptable number of deaths, and an unacceptable number of long term illnesses as a result.”

The panel took arguments under submission.

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