During the outbreak of the COVID-19 pandemic, a number of medically vulnerable and disabled individuals held pretrial at the Shelby County Jail filed a class action asserting claims under the 14th Amendment to the U.S. Constitution for unconstitutional punishment and unconstitutional confinement and for disability discrimination under the American with Disabilities Act (“ADA”) on account of the prison’s inability to protect them against the risk of contracting COVID-19.

After extensive discovery, the parties settled the case and entered into a consent decree requiring the jail to: (i) comply with a number of inspection and reporting requirements (i.e., provide a monthly report on COVID-related matters and protocols to an independent inspector until termination of the consent decree); (ii) maintain safe ventilation and air quality; (iii) implement various testing, isolation, and quarantine protocols; (iv) provide hygiene, personal protective equipment and vaccines; and (v) implement social distancing measures. Under the consent decree, the independent inspector could conduct regular and unannounced inspections until the termination of the consent decree and, as a result of such inspections, could issue recommendations to the jail that the latter was obligated to implement. The decree also contained some termination provisions including that it terminated if COVID-19 vaccine was offered to and administered to all detainees housed at the jail for a period of more than 14 days and who accepted vaccination.

After having allegedly complied with the consent decree, the prison authorities asked the district court of Tennessee to terminate it.

By judgment of 14 December 2022, the Court of Appeal for the Sixth Circuit upheld the decision taken in the first instance by the district court of Tennessee, stating that the prison authorities had failed to prove that they had met the condition for terminating the consent decree. Namely, the Court highlighted that respondent, on the one hand, had only provided conclusory, one-sided, and uncorroborated testimony that eligible detainees were offered and received a vaccine, on the other, had confirmed that there had been some gaps in vaccination and had failed to adequately keep vaccination records. Accordingly, it found that the jail’s self-attested compliance was insufficient to negate the possibility that some detainees who requested a vaccine did not receive it and invited the jail to re-file its request once it had gathered sufficient evidence pointing to the actual existence of the conditions for termination of the decree.

Reference: Busby v. Bonner, Court of Appeals for the Sixth Circuit, 14 December 2022.

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