denver county jail

A federal judge on Tuesday encouraged the City and County of Denver and lawyers for a group of detainees to hire a mediator, while at the same time indicating he would promptly consider any emergency requests in the proposed class action lawsuit alleging a failure to implement COVID-19 protocols in the Denver jail.

U.S. District Court Senior Judge John L. Kane previously consolidated nearly three dozen inmate complaints into a single case. The plaintiffs, whose pro bono attorneys filed a class action lawsuit earlier this month, assert that their confinement in the Denver County Jail put them at imminent risk of serious illness or death from COVID-19. That treatment, they allege, rose to the level of a constitutional violation. 

"This case involves highly-technical, scientific matter and matters of public health. I think a mediator could be of great assistance in coming up with something that could be satisfactory to everyone," Kane told the parties at a courtroom hearing. He added he would "give prompt consideration to any motions of an emergency or matter of urgency" regarding the spread of COVID-19 in the jail.

The current set of allegations against Denver, the Denver Sheriff Department and Sheriff Elias Diggins revolves around the claim that the jail subjected detainees to an unreasonable risk of contracting the novel coronavirus.  

"The Fourteenth Amendment of the United States Constitution requires Denver to provide for the reasonable health and safety of persons in custody and the Eighth Amendment prohibits Denver from subjecting detainees to cruel and unusual punishment," the lawsuit argues. "Public health guidance put all sheriffs on notice of the dire risk of the spread of COVID-19 through jails without substantial changes to the jail environment."

Allegedly, Denver did not adequately reduce the jail population, institute social distancing or otherwise ensure that symptomatic detainees were not confined with non-infected arrestees. Moreover, jail staff denied replacement masks to detainees who needed them.

Those claims were largely based on the city's alleged conduct from mid-to-late 2020. One of the plaintiffs, Paul Jarman, tested positive for COVID-19 on Dec. 21, 2020. He described deputies ignoring the 14-day quarantine protocol and failing to wear personal protective equipment.

"Mr. Jarman has the impression that deputies had given up on prevention as evidenced by their failure to wear PPE, ensure adequate sanitizing, and isolate detainees," the lawsuit alleges, adding Jarman continues to experience physical symptoms from his diagnosis.

Another detainee, Tahlil Johnson, asserted that deputies put a COVID-19-positive person in a pod with other detainees in August 2020.

"I've been VERY OBSERVANT!" Johnson, who previously caught COVID-19 in the jail, wrote to the court. The jail is "taking this lightly, when it should be taken serious. Their negligence is very disturbing and I am truly offended at their care level for other human lives."

The plaintiffs are seeking at the outset a declaration that Denver is liable, and ask that the their legal class include all detainees who tested positive for COVID-19 while at the Denver County Jail and the Van Cise-Somenet Downtown Detention Center, all detainees who test positive going forward, and any detainee who has died from COVID-19 complications. They also request that Kane establish a procedure for obtaining damages from the city, if Denver is shown to be liable.

Denver has until Feb. 1 to answer the plaintiffs' allegations. The lawsuit comes amid the spread of the Omicron variant in the United States, which preliminary data suggest is more than twice as transmissible as the already-contagious Delta variant. To date, the state reports that 10,214 people have died in Colorado due to COVID-19.

The Colorado Department of Corrections, the El Paso County sheriff and the Weld County sheriff have already entered into agreements with the ACLU of Colorado to improve COVID-19 prevention measures in their facilities.

"We're dealing in this case with very important issues of public importance in this case. There are conflicting values of public interest," Kane said on Tuesday. "On the one hand, we have public health and the people going into confinement and then being released .... On the other hand, we can't just empty the jails of all people because of public safety. Reasonable judgments have to be made."

Kane previously oversaw a lawsuit between Douglas County and the county's public school system over the issue of mask mandates. In late October, he agreed that the county's decision to curtail masking in the schools endangered at-risk students in likely violation of the Americans with Disabilities Act.

Kane encouraged the parties in the Denver jail lawsuit to look at some of the expert witness testimony offered in the Douglas County case.

Data from the city indicate there have been a total of 2,005 COVID-19 positive cases identified in Denver's facilities to date. The COVID Prison Project, run by a group of public health scientists, has catalogued more than 2,600 deaths of inmates and 242 deaths of prison staff nationwide, with infection rates far higher in correctional facilities than among the general population during the first year of the pandemic.

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