No Immunity for Colleagues in Immigrant-Assault Case

(CN) – Fleeing sexual violence in her home country, a Honduran mother found more of the same at U.S. immigration jail. With her caseworker in prison now for sexual assault, several more officials could be held liable for deliberate indifference.

(ACLU photo)

On Monday, the Third Circuit affirmed a ruling that sets the stage for a civil trial implicating the former colleagues of Daniel Sharkey at the Immigration Family Center in Leesport, Pennsylvania.

“The right to ‘not be sexually assaulted by a state employee while in confinement’ was clearly established at the time of Sharkey’s conduct,” U.S. Circuit Judge Luis Felipe Restrepo wrote for a three-judge panel in Philadelphia.

Berks County, which runs the facility pursuant to a contract with U.S. Immigration and Customs Enforcement, could also be on the hook.

E.D., as the mom is identified in court records, had been at the camp for about a month in spring 2014 when Sharkey began showering her and her 3-year-old son with attention, food and gifts.

Because the jail is small E.D. was one of just 90 women and children there at the time — Sharkey’s attentions did not go unnoticed.

E.D. said other residents spotted two instances of sexual intercourse with Sharkey just a month apart. A 7-year-old girl caught the assault that happened in a bathroom.

Though Berks County still maintains that the incidents were consensual, Restrepo emphasized the lower court’s finding “that E.D. was ‘detained’ and that, under ICE policies and standards, as well as Pennsylvania law, any sexual contact between a staff member and a detainee constitutes sexual abuse regardless of consent.” (Italics in original.)

In this earlier ruling, U.S. District Judge Edward Smith wrote in a footnote about the need for a trial to resolve “disputed facts.”

Supporting  the finding that immigration detainees have due-process protections under the 14th Amendment, U.S. Circuit Judge D. Brooks Smith issued a concurring opinion where he balked at the lack of detail on these controversies.

“In this case, however, the footnote neglects to identify a single undisputed fact, and provides only cursory discussion — without reference to the evidence of record — to support the conclusion that disputes of material fact exist,” the concurring opinion states.

Attorneys for E.D. and the Berks County facility did not immediately respond for emails requesting comment.

In 2017, NBC reported that Berks County Residential Center had been the only immigration detention center in the country to indefinitely hold women and children.

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