JUDGE: JAIL COVID PROTOCOL IS FAIR

Tentative ruling declines changes to sheriff’s officials’ practices

In an initial ruling that remains subject to change, a San Diego Superior Court judge has denied a request by civil rights attorneys to order the Sheriff ’s Department to do more to prevent the spread of COVID-19 in county jails.

Judge Joel R. Wohlfeil said in a tentative decision issued before a court hearing Friday that sheriff ’s officials are doing what appears to be a reasonable job of shielding inmates from the deadly virus.

“Given the combined evidence submitted by the parties, plaintiffs have not satisfied their burden of demonstrating either a reasonable probability of prevailing or that the balance of harms weighs in favor of preliminary injunctive relief,” the judge wrote.

“The evidence appears to demonstrate that the county has taken reasonable protective measures to address the COVID-19 pandemic,” Wohlfeil added.

The ACLU of San Diego and Imperial Counties joined two other law firms last year in suing San Diego County and then-sheriff Bill Gore over conditions inside the jails, which, like congregate living situations everywhere, are especially vulnerable to infections.

The lawsuit, which is scheduled for trial in July, seeks to order the Sheriff ’s Department to follow federal public health guidelines in handling inmates. Among other things, plaintiffs are requesting more testing, broader vaccinations and stricter social distancing.

Earlier this year, the plaintiffs asked Wohlfeil to order the county to implement stronger COVID-19 practices immediately. Conditions were so dangerous, they argued, that inmates could not wait for the jury trial.

Since the start of the pandemic, 3,726 people in county custody have tested positive for COVID-19 and there are currently 15 active cases, according to the Sheriff’s Department’s website.

In support of their motion, the plaintiffs submitted a host of declarations from inmates and former inmates describing a number of issues, including broad failures to follow protocols during the booking process, scattershot quarantines, a

lack of testing and unsafe inmate transfer practices.

The declarations also described the impact the virus seems to have had on jail operations, such as lockdowns that led to a reduction in maintenance and routine cleanings, causing black mold and insect infestations.

Inmates also described a lack of access to health care.

“I had to sleep on the floor of a holding cell for about three days back during my Booking,” James Neely wrote in his declaration.

Neely, 57, suffers from degenerative bone disease and spinal stenosis that leaves him in constant pain.

“It felt like I was almost going to be paralyzed. I asked for some medical treatment and they said when I got upstairs I could have some Tylenol, but I never got the Tylenol,” he said.

During the hearing Friday, ACLU staff attorney Jonathan Markovitz told the judge that sheriff ’s deputies are not distributing vaccine information to help convince inmates to get immunized.

“The defendants have acknowledged that vaccine hesitancy is an issue,” Markovitz said. “The (U.S. Centers for Disease Control and Prevention) has said it’s really important for detention facilities to encourage vaccine support . ... Outbreak after outbreak after outbreak and they won’t take this step,” he added. “This is the definition of deliberate indifference.”

Deputy County Counsel Steven Inman said the Sheriff’s Department has seen only a handful of deaths and 42 hospitalizations from

COVID-19 since the pandemic erupted.

“We are always looking for ways we can do more, but in a congregate setting, to have deaths limited to three over a two-year period is truly remarkable,” he said. “I am absolutely proud of the men and women of the San Diego Sheriff ’s Department.”

In its opposition to the ACLU’S lawsuit, the county described a new study by Colleen Kelly, a biological statistician and associate professor at San Diego State University.

The study, which examined COVID-19 infection rates among everyone booked into San Diego County jail custody between January 2020 and August 2021, concluded that infections were much lower than might have been expected.

“Based on my analysis,” Kelly wrote, “I found that the observed number of COVID-19 cases in the (county) jail system is a fraction (18.0%) of the expected number in the community, and the observed number of deaths due to COVID-19 is an even lower fraction (8.3%) of the expected number in the community.”

According to court filings, Kelly was paid $450 an hour to produce her report, although it’s not clear how much time it took to complete.

Some researchers took issue with Kelly’s methodology.

Zachary Goodman, a data scientist with Recidiviz, a nonprofit that analyzes incarceration data, said Kelly’s report failed to consider things like testing rates in jail compared to testing rates across the community.

Goodman also said Kelly’s reliance on booking numbers — rather than the jail system’s average daily population — ignores how much time each arrestee actually spends in custody.

Some people are incarcerated for days or hours, making them less likely to contract the virus, Goodman noted, yet Kelly’s analysis looks at all inmates equally.

Goodman said it would be useful to know whether being booked into a San Diego County jail increased a person’s risk of contracting COVID-19, but Kelly’s analysis fails to answer that question.

“Unfortunately, significant data and methodological limitations of (Kelly’s) analysis prevent us from reaching any sound conclusions,” he said.

Kelly is the same statistician who conducted an analysis of suicides in San Diego jails in response to reporting by The San Diego Union-tribune and an investigation by the watchdog group Disability Rights California.

Kelly in her earlier report similarly relied on booking data, rather than daily inmate population data, even though the U.S. Bureau of Justice Statistics recommends looking at a jail’s average daily population to calculate its mortality rates.

Wohlfeil said he is grateful for the arguments presented by both sides at the hearing Friday and would consider all of the information before issuing a final ruling.

“I’ve made lots of notes, much of which you put into your papers,” the judge said. “We will get a minute order out as quickly as possible.”