Support Weak for Immunity Bid in Immigrant-Assault Case

PHILADELPHIA (CN) — Co-workers of a man who pleaded guilty to sexually assaulting a young detainee at an immigration family center could be on the hook themselves in a civil lawsuit. Wednesday morning, an attorney for the woman lobbied the Third Circuit to deny the staff qualified immunity.

"There was a clearly established right to be free of sexual assault as a detainee," said Sue Yeh, an associate at Charles River. "The defendants, specifically the Berks County defendants, are not entitled to qualified immunity." 

Yeh represents a young Honduran mother identified in the court record as E.D. After entering the United States in May 2014, 19-year-old E.D. and her son spent one month at an immigration facility in Texas only to be transferred to an Immigration Family Center located in Leesport, Pennsylvania, that Berks County operates pursuant to a contract with U.S. Immigration and Customs Enforcement.

With a detainee population of just 90 women and children, the Berks County center is a small one, and E.D. said it quickly became apparent to staff there that caseworker Daniel Sharkey was giving her special attention.

Fearing that speaking out would get her deported, E.D. denied until fall 2014 that Sharkey was sexually assaulting her.

Though Sharkey initially claimed that the relationship was consensual, he pleaded guilty in 2016 to sexual assault and was sentenced to prison.

Sharkey’s former co-workers are appealing to the Third Circuit now after a federal denied them immunity in E.D.’s civil suit.

Arguing before a three-judge panel in Philadelphia this morning, Yeh noted that the staff cannot claim ignorance amid evidence that they joked about E.D. being Sharkey’s girlfriend.

"The evidence shows that all of the individual defendants were on the same shift as Mr. Sharkey," Yeh said.

“I think that there was enough circumstantial evidence to infer that they did in fact know," she added.

U.S. Circuit Judge Thomas Ambro noted at the hearing, however, that this inference may not be enough.

"It's not a question of joking being in and of itself a problem,” Ambro said. “It’s did they know? Did they ignore?" 

Matthew Connell, an attorney for the staffers at MacMain Law, said that there was no evidence of such awareness.

“You must look at the facts, not the allegations in the complaint," Connell said.

Connell pointed specifically a footnote in a 2017 ruling where U.S. District Judge Edward Smith referred to “disputed facts,” without explaining which facts were in dispute. 

“How can we establish what the clearly established right is if he doesn't identify the facts,” Connell asked.

Ambro seemed skeptical of the argument.

"What you’re arguing is there's no clearly established constitutional right to protect [a detainee] from someone acting as a sexual predator in this kind of environment?" Ambro said. "That's a toughie." 

U.S. Circuit Judge Felipe Restrepo noted at the hearing as well that the Pennsylvania Constitution legally prevents case workers like Sharkey from having sex with inmates. 

Chief U.S. Circuit Judge D. Brooks Smith rounded out Wednesday’s panel. 

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