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A judge is ordering Orange County Sheriff Don Barnes to transfer 50 percent of jail inmates out of group living areas, after finding the sheriff failed in his duty to protect medically vulnerable inmates with social distancing as a major new coronavirus outbreak hits the jails.


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“[Barnes’] deliberate indifference to the substantial risk of serious harm from COVID-19 infection to…medically vulnerable people in [his] custody violates their rights under the California Constitution,” wrote Judge Peter Wilson in a 32-page ruling late Friday in a case brought by the American Civil Liberties Union.

“[Barnes’] acts, and failures to act, constitute ‘conduct that may unnecessarily expose inmates in his custody to significant risks to their health and safety,” the ruling adds.

In response, Barnes criticized the order as putting community members at risk, and said he’s considering whether to appeal it.

“We are evaluating the order, its impacts and our options for appeal,” Barnes said in a statement.

“If the order stands, it will result in the release of more than 1,800 inmates. Many of these inmates are in pre-trial status for, or have been convicted of, violent crimes and will be released back into the community. This order puts our community at substantial risk and does not take into account the impact on the victims of these crimes.”

In a footnote on page 29 of his decision, Judge Wilson wrote that Barnes didn’t have to release the inmates, but could transfer them to some other type of custody, at the sheriff’s discretion.

It’s not clear how that would work.

[Click here to read the judge’s decision.]

In his ruling, Wilson found that Barnes “has failed to reduce the jail population sufficiently to ensure appropriate social distancing,” and “has abused his discretion in failing to consider for release all medically vulnerable inmates, including those with disabilities.”

The decision comes as the Sheriff’s Department grapples with a major new outbreak of Covid-19 in the county jail system, with 74 inmates in the general jail population testing positive Wednesday and Thursday.

The ongoing coronavirus surge in Orange County also is now prompting a halt to many court proceedings.

In a court filing late Thursday, county officials said they believe the new jail outbreak “occurred due to 2 inmates being exposed at court however at this time there is no way to be sure.”

“This very unfortunate development confirms the need to take a;l reasonable steps to ensure that if an outbreak occurs at the Jail, that outbreak is contained to the fullest extent reasonably possible,” Wilson wrote in his order.

“As all experts appear to agree, social distancing is an essential aspect of those reasonable steps.”

“This order will save lives,” said Cassandra Stubbs, director of the ACLU’s Capital Punishment Project, in a statement about the order.

“We have seen again and again in this suit and in similar litigation around the country, corrections officials have not taken the necessary steps to protect incarcerated people from the spread of COVID-19, nor have they been honest about the circumstances and risk levels in their facilities.”

In his ruling Friday, Wilson said the sheriff did not dispute the fact that current jail conditions put inmates who are medically vulnerable to Covid-19 “at substantially greater risk” from a coronavirus infection than the overall inmate population.

“This is disability discrimination,” Wilson wrote.

There were 3,628 inmates in Orange County’s jail system as of Thursday, according to sheriff officials.

Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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