courthousenews--2020-08-06--Tennessee Supreme Court Limits Who Can Vote Absentee

( CN ) — In a setback for voting rights activists who sought to open up absentee voting to anyone concerned with contracting Covid-19 , the Tennessee Supreme Court limited who could vote by mail in the upcoming presidential election .
In a ruling issued Wednesday evening , the supreme court said a Davidson County Chancery Court judge who ordered the state to allow any voter concerned about Covid-19 during the pandemic to vote absentee went too far in her June order .
“ We find that the State ’ s interests in the efficacy and integrity of the election @ @ @ @ @ @ @ burden placed on the right to vote of those plaintiffs and persons who neither have special vulnerability to COVID-19 nor are caretakers for persons with special vulnerability to COVID-19 , ” wrote Justice Cornelia Clark in her 30-page opinion .
Citizens who merely worried about contracting the virus did not face a severe burden to their right to vote , Clark wrote , given that the state planned to encourage mask-wearing , frequent sanitation and social distancing at the polls .
According to the ruling , the state had said voters with underlying @ @ @ @ @ @ @ to the coronavirus and voters who care for individuals with underlying health conditions could already cast a ballot by mail .
When the supreme court heard both sides argue the case on June 30 , Steve Mulroy , a law professor representing voters seeking to vote absentee , said the state presented a new interpretation of the absentee voting rules to the supreme court than it had before .
The decision comes at a time when courts in states such as Alabama and Texas have also considered whether or not the states should @ @ @ @ @ @ @ the pandemic .
In Tennessee , for instance , voters can only vote absentee if they have a reason to , such as if a voter is over 60 , ill or in the military .
In May , two groups of voters filed lawsuits in state court alleging Tennessee ’ s absentee voting rules prevented them from voting by mail during the pandemic .
For instance , Ben Lay , a cancer survivor with a compromised immune system , said he shouldn ’ t have to choose between voting and prioritizing his @ @ @ @ @ @ @ temporary injunction in place ahead of the Aug. 6 primary in Tennessee — which will help decide the candidates seeking an open senate seat — more than 578,000 Tennesseans cast absentee ballots or voted in the state ’ s early voting period , according to the secretary of state – a 105 % increase from the 2016 election .
The state , Clark wrote , had argued it needed to restrict absentee voting in order to ensure against fraud .
But Clark found the argument lackluster : “ The trial court did not @ @ @ @ @ @ @ the risk of fraud which would result from an increase in absentee voting by mail persuasive .
We tend to agree , ” she wrote .
However , policy decisions were delegated to the coordinator of elections — even policy decisions made during a pandemic .
“ These policy choices will be judged by history and by the citizens of Tennessee .
We , however , properly may not and will not judge the relative merits of them , regardless of our own views , ” Clark wrote .
Clark was joined by @ @ @ @ @ @ @ .
Justice Sharon Lee issued a dissent .
Citing the rising number of Covid-19 cases — more than 114,000 as of Wednesday — Lee said Tennessee students will start going back to school and take up contact sports and residents meet in bars despite no statewide mask mandate .
“ Tennessee is out of step with nearly every other state in the country in its response to absentee voting during this pandemic .
Only three other states do not allow either voting by mail or no-excuse absentee-by-mail voting in the current pandemic , @ @ @ @ @ @ @ director of the American Civil Liberty Union ’ s Voting Rights Project , described the ruling as a victory , with the supreme court ruling medically vulnerable Tennesseans can vote absentee , away from the populated polls .
“ The court should have gone further , however , and ruled that all eligible voters have a right to vote safely by mail , ” Ho said .
Meanwhile , attorneys with the Campaign Legal Center and the Lawyers ’ Committee for Civil Rights Under Law are also challenging some of Tennessee ’ s @ @ @ @ @ @ @ .
This time in federal court .
In an email to Courthouse News , Kristen Clarke , president of Lawyers ’ Committee for Civil Rights Under Law , said the attorneys are trying to prevent Tennessee from requiring first-time voters that registered by mail to show up to a polling location in person to vote , for instance .

In a setback for voting rights activists who sought to open up absentee voting to anyone concerned with contracting Covid-19, the Tennessee Supreme Court limited who could vote by mail in the upcoming presidential election.
(CN) — In a setback for voting rights activists who sought to open up absentee voting to anyone concerned with contracting Covid-19, the Tennessee Supreme Court limited who could vote by mail in the upcoming presidential election.
In a ruling issued Wednesday evening, the supreme court said a Davidson County Chancery Court judge who ordered the state to allow any voter concerned about Covid-19 during the pandemic to vote absentee went too far in her June order.
“We find that the State’s interests in the efficacy and integrity of the election process are sufficient to justify the moderate burden placed on the right to vote of those plaintiffs and persons who neither have special vulnerability to Covid-19 nor are caretakers for persons with special vulnerability to Covid-19,” wrote Justice Cornelia Clark in her 30-page opinion.
Citizens who merely worried about contracting the virus did not face a severe burden to their right to vote, Clark wrote, given that the state planned to encourage mask-wearing, frequent sanitation and social distancing at the polls.
According to the ruling, the state had said voters with underlying health conditions that made them especially vulnerable to the coronavirus and voters who care for individuals with underlying health conditions could already cast a ballot by mail.
When the supreme court heard both sides argue the case on June 30, Steve Mulroy, a law professor representing voters seeking to vote absentee, said the state presented a new interpretation of the absentee voting rules to the supreme court than it had before.
The decision comes at a time when courts in states such as Alabama and Texas have also considered whether or not the states should loosen their rules around absentee voting during the pandemic.
In Tennessee, for instance, voters can only vote absentee if they have a reason to, such as if a voter is over 60, ill or in the military.
In May, two groups of voters filed lawsuits in state court alleging Tennessee’s absentee voting rules prevented them from voting by mail during the pandemic. For instance, Ben Lay, a cancer survivor with a compromised immune system, said he shouldn’t have to choose between voting and prioritizing his heath.
With the chancellor’s temporary injunction in place ahead of the Aug. 6 primary in Tennessee — which will help decide the candidates seeking an open senate seat — more than 578,000 Tennesseans cast absentee ballots or voted in the state’s early voting period, according to the secretary of state — a 105% increase from the 2016 election.
The state, Clark wrote, had argued it needed to restrict absentee voting in order to ensure against fraud.
But Clark found the argument lackluster: “The trial court did not find the State’s evidence regarding the risk of fraud which would result from an increase in absentee voting by mail persuasive. We tend to agree,” she wrote.
However, policy decisions were delegated to the coordinator of elections — even policy decisions made during a pandemic.
“These policy choices will be judged by history and by the citizens of Tennessee. We, however, properly may not and will not judge the relative merits of them, regardless of our own views,” Clark wrote.
Clark was joined by three other justices on the five-judge bench. Justice Sharon Lee issued a dissent.
Citing the rising number of Covid-19 cases — more than 114,000 as of Wednesday — Lee said Tennessee students will start going back to school and take up contact sports and residents meet in bars despite no statewide mask mandate.
“Tennessee is out of step with nearly every other state in the country in its response to absentee voting during this pandemic. Only three other states do not allow either voting by mail or no-excuse absentee-by-mail voting in the current pandemic,” Lee wrote.
Dale Ho, director of the American Civil Liberty Union’s Voting Rights Project, described the ruling as a victory, with the supreme court ruling medically vulnerable Tennesseans can vote absentee, away from the populated polls.
“The court should have gone further, however, and ruled that all eligible voters have a right to vote safely by mail,” Ho said.
Meanwhile, attorneys with the Campaign Legal Center and the Lawyers’ Committee for Civil Rights Under Law are also challenging some of Tennessee’s absentee voting rules in a pending lawsuit. This time in federal court.
In an email to Courthouse News, Kristen Clarke, president of Lawyers’ Committee for Civil Rights Under Law, said the attorneys are trying to prevent Tennessee from requiring first-time voters that registered by mail to show up to a polling location in person to vote, for instance.
“The battle against the state continues,” Clarke wrote.


courthousenews--2020-08-06--New York City Police Unions Sue to Block City’s Chokehold Ban

MANHATTAN ( CN ) — Ratcheting up their counteroffensive against the criminal justice reform legislation , dozens of New York City police unions filed a lawsuit on Wednesday to invalidate the city ’ s new chokehold ban .
“ The law has been widely criticized by District Attorneys , law enforcement officials and other experts in law enforcement , ” the 24-page complaint states .
Led by the city ’ s Police Benevolent Association , the lawsuit comes six years after Staten Island resident Eric Garner ’ s death in a police chokehold .
Garner ’ s dying gasps of @ @ @ @ @ @ @ ” captured on a viral video , drove thousands onto the streets in 2014 .
It took George Floyd uttering the same words under a Minneapolis officer ’ s knee this year to spur New York State and city legislators to pass a ban on the practice among a suite of reforms designed to promote transparency , accountability and restraints upon police .
Since Governor Andrew Cuomo signed those bills in June , police unions have fought systematically to dismantle the new laws .
A different lawsuit filed in federal court last month @ @ @ @ @ @ @ of NYPD disciplinary records , many of which were recently posted publicly by ProPublica .
The NYCLU later won the right to post a similar database , in a ruling currently under appeal to the Second Circuit .
Police unions ’ latest lawsuit filed in Manhattan Supreme Court attacks the city ’ s chokehold ban signed by Mayor Bill de Blasio on July 15th as “ unconstitutionally vague.
” “ An ordinary police officer will be unable to discern whether many ordinary activities taken in the course of the apprehension and arrest of @ @ @ @ @ @ @ attorney Anthony Cole , from the firm DLA Piper , writes in the complaint .
The statute criminalizes using any restraint that restricts the flow of air or blood “ by compressing the windpipe or the carotid arteries on each side of the neck , or sitting , kneeling , or standing on the chest or back in a manner that compresses the diaphragm , in the course of effecting or attempting to effect an arrest.
” The law does not require prosecutors to prove intent or injury .
“ Rather , any @ @ @ @ @ @ @ intent or resulting injury , exposes a police officer to prosecution as a Class A misdemeanor and up to a year in prison , ” the complaint states .
“ This punitive municipal law threatens police officers with fines and imprisonment for doing their jobs in good faith with no intent to harm a suspect , nor even any requirement that a suspect suffer injury.
” The unions do not attack the state statute , which they claim preempts the municipal law .
Asking a state judge to block the law , the @ @ @ @ @ @ @ York Constitution .
Asked about the lawsuit , New York City Law Department ’ s spokesman Nick Paolucci wrote in an email : “ We ’ re reviewing the complaint .
”

Ratcheting up their counteroffensive against the criminal justice reform legislation, dozens of New York City police unions filed a lawsuit on Wednesday to invalidate the city’s new chokehold ban.
MANHATTAN (CN) — Ratcheting up their counteroffensive against the criminal justice reform legislation, dozens of New York City police unions filed a lawsuit on Wednesday to invalidate the city’s new chokehold ban.
“The law has been widely criticized by district attorneys, law enforcement officials and other experts in law enforcement,” the 24-page complaint states.
Led by the city’s Police Benevolent Association, the lawsuit comes six years after Staten Island resident Eric Garner’s death in a police chokehold. Garner’s dying gasps of “I can’t breathe,” captured on a viral video, drove thousands onto the streets in 2014.
It took George Floyd uttering the same words under a Minneapolis officer’s knee this year to spur New York State and city legislators to pass a ban on the practice among a suite of reforms designed to promote transparency, accountability and restraints upon police.
Since Governor Andrew Cuomo signed those bills in June, police unions have fought systematically to dismantle the new laws. A different lawsuit filed in federal court last month aimed to block the release of thousands of NYPD disciplinary records, many of which were recently posted publicly by ProPublica.
The NYCLU later won the right to post a similar database, in a ruling currently under appeal to the Second Circuit.
Police unions’ latest lawsuit filed in Manhattan Supreme Court attacks the city’s chokehold ban signed by Mayor Bill de Blasio on July 15th as “unconstitutionally vague.”
“An ordinary police officer will be unable to discern whether many ordinary activities taken in the course of the apprehension and arrest of a suspect violate the statute,” attorney Anthony Cole, from the firm DLA Piper, writes in the complaint.
The statute criminalizes using any restraint that restricts the flow of air or blood “by compressing the windpipe or the carotid arteries on each side of the neck, or sitting, kneeling, or standing on the chest or back in a manner that compresses the diaphragm, in the course of effecting or attempting to effect an arrest.”
The law does not require prosecutors to prove intent or injury.
“Rather, any violation of its terms, even absent intent or resulting injury, exposes a police officer to prosecution as a Class A misdemeanor and up to a year in prison,” the complaint states. “This punitive municipal law threatens police officers with fines and imprisonment for doing their jobs in good faith with no intent to harm a suspect, nor even any requirement that a suspect suffer injury.”
The unions do not attack the state statute, which they claim preempts the municipal law.
Asking a state judge to block the law, the unions allege four violations of the New York Constitution.
Asked about the lawsuit, New York City Law Department’s spokesman Nick Paolucci wrote in an email: “We’re reviewing the complaint.”


courthousenews--2020-08-07--Former Oil Executive Indicted in Bribery Scandal Linked to Venezuela

HOUSTON ( CN ) — A former Citgo executive received bribe payments of $ 2.5 million , World Series and Super Bowl tickets from two business partners who have pleaded guilty for their roles in the scam , federal prosecutors claim in an indictment unsealed Thursday .
A federal grand jury charged Jose Luis De Jongh-Atencio , a 48-year-old dual U.S.-Venezuelan citizen , with five counts of money laundering and conspiracy to launder money while serving as a procurement officer from 2013 into 2019 for Citgo , the Houston-based subsidiary of Venezuela ’ s state-owned oil company Petróleos de Venezuela @ @ @ @ @ @ @ indictment today , the Justice Department has announced charges against 27 individuals , 20 of whom have pleaded guilty , as part of a larger , ongoing investigation by the U.S. government into bribery at PDVSA , ” Houston U.S. Attorney Ryan Patrick ’ s office said in a statement .
Prosecutors say De Jongh-Atencio took bribes from Jose Manuel González-Testino , a dual U.S.-Venezuelan citizen , and his business partner Tulio Anibal Farias-Perez , a Venezuelan national and Houston resident , in return for helping their companies obtain contracts with Citgo and @ @ @ @ @ @ @ , had González-Testino and Farias-Perez make bribe payments to shell company bank accounts in Panama and Switzerland , then laundered the funds through U.S. bank accounts and spent most of it on real estate in South Texas .
“ De Jongh also allegedly received gifts and other things of value from Gonzalez , Farias and others including tickets to a 2014 World Series Game , Super Bowl XLIX and a U2 concert , ” prosecutors said in a statement .
Prosecutors in Houston , Miami and Washington have been aggressively pursuing charges in @ @ @ @ @ @ @ U.S. government placed sanctions on PDVSA and its subsidiaries and backed Venezuela opposition leader Juan Guaidó ’ s challenge of Nicolás Maduro ’ s presidency .
The sanctions are meant to stop Maduro ’ s socialist government from receiving proceeds from PDSVA ’ s sale of oil in the United States .
They are being held in an account Maduro ’ s regime is blocked from accessing .
Backed by Venezuela ’ s National Assembly , its version of Congress , Guaidó declared himself acting president of Venezuela in January 2019 .
With @ @ @ @ @ @ @ Guaidó appointed new board members for PDVSA and Citgo in early 2019 , prompting the U.S. Treasury Department to renew Citgo ’ s license to operate in the United States , where it owns three refineries in Illinois , Texas and Louisiana and pipelines extending into 23 states .
Attorneys for the new Citgo board are reportedly going through its internal documents and turning over evidence of fraud to federal prosecutors .
Prosecutors announced De Jongh-Atencio ’ s charges shortly after U.S .
Senator Ted Cruz , R-Texas asked Elliott Abrams , U.S. @ @ @ @ @ @ @ Senate Foreign Relations Committee hearing Thursday how Congress can help remove Maduro from power .
Abrams urged Congress to issue a resolution stating the U.S. will not stop pressuring Maduro to step down .
“ I actually think the best thing we could do would be a bipartisan expression that this policy is not going to change , ” Abrams said .
“ It has support in both parties .
We are not going to let up on the sanctions .
We are not going to let up on the criminal prosecutions .
@ @ @ @ @ @ @ it , so this is going to keep on going year-after-year until this regime is replaced.
” Cruz also asked Abrams about the “ Citgo 6 , ” five U.S. citizens and a permanent resident who are executives of the company and have been detained by Maduro ’ s regime since they traveled to Venezuela in November 2017 .
They are facing corruption charges in Venezuela over a proposal to refinance $ 4 billion in Citgo bonds , the Associated Press reported .
Two of the men were reportedly moved to house arrest @ @ @ @ @ @ @ is working to free the men with the governments of Mexico , Spain , Argentina and the Vatican .
“ We hope that the next step is the other four go to house arrest as a step toward getting home .
It ’ s been since 2017 .
It ’ s gone on for two and a half years now and they belong home with their families .
These men have never had a trial , ” Abrams told the foreign relations committee .
At Jongh-Atencio ’ s arraignment in federal court in @ @ @ @ @ @ @ Sheldon set his bond at $ 2 million .
His attorneys told Sheldon a surety will sign the bond Monday to get him released from custody until his trial , which is set for Sept. 28 .
González-Testino pleaded guilty in May 2019 to violating and conspiring to violate the Foreign Corrupt Practices Act and failing to report foreign bank accounts .
Farias-Perez meanwhile pleaded guilty to conspiracy in February .
They are both scheduled to be sentenced Feb. 24 , 2021 .

A former Citgo executive received bribe payments of $2.5 million, World Series and Super Bowl tickets from two business partners who have pleaded guilty for their roles in the scam, federal prosecutors claim in an indictment unsealed Thursday.
HOUSTON (CN) — A former Citgo executive received bribe payments of $2.5 million, World Series and Super Bowl tickets from two business partners who have pleaded guilty for their roles in the scam, federal prosecutors claim in an indictment unsealed Thursday.
A federal grand jury charged Jose Luis De Jongh-Atencio, a 48-year-old dual U.S.-Venezuelan citizen, with five counts of money laundering and conspiracy to launder money while serving as a procurement officer from 2013 into 2019 for Citgo, the Houston-based subsidiary of Venezuela’s state-owned oil company Petróleos de Venezuela S.A.
“With the unsealing of the indictment today, the Justice Department has announced charges against 27 individuals, 20 of whom have pleaded guilty, as part of a larger, ongoing investigation by the U.S. government into bribery at PDVSA,” Houston U.S. Attorney Ryan Patrick’s office said in a statement.
Prosecutors say De Jongh-Atencio took bribes from Jose Manuel González-Testino, a dual U.S.-Venezuelan citizen, and his business partner Tulio Anibal Farias-Perez, a Venezuelan national and Houston resident, in return for helping their companies obtain contracts with Citgo and PDSVA.
De Jongh-Atencio, prosecutors claim, had González-Testino and Farias-Perez make bribe payments to shell company bank accounts in Panama and Switzerland, then laundered the funds through U.S. bank accounts and spent most of it on real estate in South Texas.
“De Jongh also allegedly received gifts and other things of value from Gonzalez, Farias and others including tickets to a 2014 World Series Game, Super Bowl XLIX and a U2 concert,” prosecutors said in a statement.
Prosecutors in Houston, Miami and Washington have been aggressively pursuing charges in the probe since January 2019 when the U.S. government placed sanctions on PDVSA and its subsidiaries and backed Venezuela opposition leader Juan Guaidó’s challenge of Nicolás Maduro’s presidency.
The sanctions are meant to stop Maduro’s socialist government from receiving proceeds from PDSVA’s sale of oil in the United States. They are being held in an account Maduro’s regime is blocked from accessing.
Backed by Venezuela’s National Assembly, its version of Congress, Guaidó declared himself acting president of Venezuela in January 2019.
With the National Assembly’s blessing, Guaidó appointed new board members for PDVSA and Citgo in early 2019, prompting the U.S. Treasury Department to renew Citgo’s license to operate in the United States, where it owns three refineries in Illinois, Texas and Louisiana and pipelines extending into 23 states.
Attorneys for the new Citgo board are reportedly going through its internal documents and turning over evidence of fraud to federal prosecutors.
Prosecutors announced De Jongh-Atencio’s charges shortly after U.S. Senator Ted Cruz, R-Texas asked Elliott Abrams, U.S. Special Representative for Venezuela, in a Senate Foreign Relations Committee hearing Thursday how Congress can help remove Maduro from power.
Abrams urged Congress to issue a resolution stating the U.S. will not stop pressuring Maduro to step down.
“I actually think the best thing we could do would be a bipartisan expression that this policy is not going to change,” Abrams said. “It has support in both parties. We are not going to let up on the sanctions. We are not going to let up on the criminal prosecutions. We're going to stay with it, so this is going to keep on going year-after-year until this regime is replaced.”
Cruz also asked Abrams about the “Citgo 6,” five U.S. citizens and a permanent resident who are executives of the company and have been detained by Maduro’s regime since they traveled to Venezuela in November 2017.
They are facing corruption charges in Venezuela over a proposal to refinance $4 billion in Citgo bonds, the Associated Press reported.
Two of the men were reportedly moved to house arrest last week.
Abrams said the U.S. is working to free the men with the governments of Mexico, Spain, Argentina and the Vatican.
“We hope that the next step is the other four go to house arrest as a step toward getting home. It's been since 2017. It's gone on for two and a half years now and they belong home with their families. These men have never had a trial,” Abrams told the foreign relations committee.
At Jongh-Atencio’s arraignment in federal court in Houston Thursday, U.S. Magistrate Judge Sam Sheldon set his bond at $2 million.
His attorneys told Sheldon a surety will sign the bond Monday to get him released from custody until his trial, which is set for Sept. 28.
González-Testino pleaded guilty in May 2019 to violating and conspiring to violate the Foreign Corrupt Practices Act and failing to report foreign bank accounts.
Farias-Perez meanwhile pleaded guilty to conspiracy in February.
They are both scheduled to be sentenced Feb. 24, 2021.


courthousenews--2020-08-07--Judge Tosses Ranchers’ Challenge to Weakened Clean Water Rules

PORTLAND , Ore. ( CN ) — Confusion on the Trump administration ’ s new rule reducing protections for streams has squashed a rancher ’ s claim that the Clean Water Act unfairly prohibits him from plowing his Baker County , Oregon , farm .
U.S. District Judge Michael Mosman dismissed the rancher ’ s lawsuit Thursday but left room for him to amend and refile his case .
Curtis Martin , a member of Oregon Cattlemen ’ s Association , claimed the Clean Water Act unfairly prohibited him from plowing in riparian zones on his farm .
Oregon Cattlemen @ @ @ @ @ @ @ Protection Agency in April 2019 , claiming it too broadly defined the types of waters that can not be polluted by including not only rivers and streams that are “ navigable-in-fact , ” but also those upstream from waters literally navigable by boat , as well as intermittent streams and isolated wetlands .
The 2015 rule expanded the Clean Water Act to cover about 60 % of U.S. waterways .
It was stalled for years by litigation in courts around the country .
On April 21 this year — Earth Day — the @ @ @ @ @ @ @ under the act that obliterated that expansion .
The Navigable Waters Protection Rule repealed the 2015 Clean Water Rule and redefined “ navigable waters ” to exclude groundwater , wetlands that lack a direct surface connection to navigable waters and ephemeral streams that don ’ t feed tributaries and are fed only by rainwater .
In short , the new rules broadly observe Oregon Cattlemen ’ s criticism .
“ What the agency did was to use more objective criteria , clearer lines that were tied to evidence of groundwater being affected by @ @ @ @ @ @ @ rain flow are excluded , ” the ranchers ’ attorney Anthony Francois told Mosman on Thursday .
“ Now , many of those are picked up by state and local authority , so the net environmental affect is not that different from the baseline.
” Columbia Riverkeeper , an intervenor in the case , didn ’ t see it that way .
In court documents , the environmental group argued that Oregon Cattlemen was taking the “ extraordinary step ” of asking the court to even further edit the already drastically reduced protections @ @ @ @ @ @ @ agreement between the ranching group and the Trump administration hasn ’ t stopped the administration ’ s regulations from getting in the ranchers ’ way .
Still included for protection are “ intermittent streams , ” which flow seasonally .
In court documents , Martin calls Gentry Creek , which flows through his Baker County property , an “ intermittent tributary ” of Power River .
But Judge Mosman said Martin was confusing the two categories , and that left him without a clear cause of action – or standing – on which @ @ @ @ @ @ @ filed its lawsuit before the new rule was in place , and Mosman said the claims hadn ’ t kept pace with change in regulations .
“ What I have here is a case that has evolved from one set of regulations to another , but the case itself hasn ’ t sufficiently evolved to meet standing requirements , ” Mosman said .
“ Some of those same problems have at least a shot at being curable , so I am dismissing the case for lack of standing but without any prejudice to @ @ @ @ @ @ @ of the problem with the new rule is that it forces farmers and ranchers to hire experts and pay fees to determine if they are prohibited from using their land the way they ’ d like to .
Under the Obama-era rule it replaced , landowners could petition to recoup their costs if they were eventually found to be legally polluting streams or other bodies of water .
Under the Trump administration rule , that ’ s no longer the case .
But Mosman on Thursday discarded that argument too .
“ Isn @ @ @ @ @ @ @ people with the tax code ?
” Mosman asked .
“ They don ’ t know if they have to pay a certain tax or if they might qualify for an exemption and so they have to pay a fee to find out ?
I don ’ t want to open the door to people having standing if they have to pay to get help to find out whether a complex law applies to them .
”

Confusion on the Trump administration’s new rule reducing protections for streams has squashed a rancher’s claim that the Clean Water Act unfairly prohibits him from plowing his Oregon farm.
PORTLAND, Ore. (CN) — Confusion on the Trump administration’s new rule reducing protections for streams has squashed a rancher’s claim that the Clean Water Act unfairly prohibits him from plowing his Baker County, Oregon, farm.
U.S. District Judge Michael Mosman dismissed the rancher’s lawsuit Thursday but left room for him to amend and refile his case. Curtis Martin, a member of Oregon Cattlemen’s Association, claimed the Clean Water Act unfairly prohibited him from plowing in riparian zones on his farm.
Oregon Cattlemen’s Association sued the U.S. Environmental Protection Agency in April 2019, claiming it too broadly defined the types of waters that cannot be polluted by including not only rivers and streams that are “navigable-in-fact,” but also those upstream from waters literally navigable by boat, as well as intermittent streams and isolated wetlands.
The 2015 rule expanded the Clean Water Act to cover about 60% of U.S. waterways. It was stalled for years by litigation in courts around the country. On April 21 this year — Earth Day — the EPA finalized a massive rollback of rules under the act that obliterated that expansion.
The Navigable Waters Protection Rule repealed the 2015 Clean Water Rule and redefined “navigable waters” to exclude groundwater, wetlands that lack a direct surface connection to navigable waters and ephemeral streams that don’t feed tributaries and are fed only by rainwater. In short, the new rules broadly observe Oregon Cattlemen’s criticism.
“What the agency did was to use more objective criteria, clearer lines that were tied to evidence of groundwater being affected by rain flow and those waters affected by rain flow are excluded,” the ranchers’ attorney Anthony Francois told Mosman on Thursday. “Now, many of those are picked up by state and local authority, so the net environmental affect is not that different from the baseline.”
Columbia Riverkeeper, an intervenor in the case, didn’t see it that way. In court documents, the environmental group argued that Oregon Cattlemen was taking the “extraordinary step” of asking the court to even further edit the already drastically reduced protections under the Clean Water Act.
Broad agreement between the ranching group and the Trump administration hasn’t stopped the administration’s regulations from getting in the ranchers’ way.
Still included for protection are “intermittent streams,” which flow seasonally. In court documents, Martin calls Gentry Creek, which flows through his Baker County property, an “intermittent tributary” of Power River. But Judge Mosman said Martin was confusing the two categories, and that left him without a clear cause of action — or standing — on which to base his lawsuit.
Oregon Cattlemen filed its lawsuit before the new rule was in place, and Mosman said the claims hadn’t kept pace with change in regulations.
“What I have here is a case that has evolved from one set of regulations to another, but the case itself hasn’t sufficiently evolved to meet standing requirements,” Mosman said. “Some of those same problems have at least a shot at being curable, so I am dismissing the case for lack of standing but without any prejudice to try again.”
Francois argued that part of the problem with the new rule is that it forces farmers and ranchers to hire experts and pay fees to determine if they are prohibited from using their land the way they’d like to. Under the Obama-era rule it replaced, landowners could petition to recoup their costs if they were eventually found to be legally polluting streams or other bodies of water. Under the Trump administration rule, that’s no longer the case.
But Mosman on Thursday discarded that argument too.
“Isn’t that true of millions of people with the tax code?” Mosman asked. “They don’t know if they have to pay a certain tax or if they might qualify for an exemption and so they have to pay a fee to find out? I don’t want to open the door to people having standing if they have to pay to get help to find out whether a complex law applies to them.”


courthousenews--2020-08-07--Judge Dismisses Republican Lawsuit Over House Proxy Voting

WASHINGTON ( CN ) — A lawsuit filed by House Republicans attempting to stop a proxy voting system launched by Democrats to ensure social distancing and reduce the spread of Covid-19 in Congress was dismissed by a federal judge on Thursday .
“ During the pandemic , Congress has continued working and has passed relief bills aimed at addressing the public health emergency , but members have not been immune from the diseases ’ spread , ” U.S. District Judge Rudolph Contreras wrote at the top of his 18-page opinion , a reference to at least a dozen lawmakers who @ @ @ @ @ @ @ despite the recent and unprecedented introduction of proxy voting on the House floor in May .
Nearly two dozen House Republicans led by Minority Leader Kevin McCarthy sued Speaker of the House Nancy Pelosi on May 26 , arguing that the party-line passage of temporary rules only a week before on proxy voting , or the use of a surrogate House member to cast one ’ s vote if absent , was unconstitutional and would “ dilute ” voting power .
McCarthy said the proxy method and the use of remote hearings — @ @ @ @ @ @ @ at the time of roughly 100,000 — represented a “ dereliction of duty ” and was ultimately a measure that would “ silence the American people ’ s voice during a crisis.
” The new and temporary rules permit a surrogate to vote for up to 10 members at a time , a factor that McCarthy and other Republicans argued diminished the power of elected officials that weren ’ t physically present while placing more in those who were .
Judge Contreras gave some shrift to this argument Thursday , pointing to principles @ @ @ @ @ @ @ Byrd , which found that individual Congresspeople are not granted automatic standing to determine the constitutionality of laws impacting the whole body , and in Michel v. Anderson , which found that constituents had standing to file grievances about a member ’ s voting power .
But Judge Contreras opted to exercise “ district court restraint ” on the matter of dilution since neither high court case was totally eviscerated in the lawmakers ’ dispute .
Instead , dismissal of the GOP ’ s complaint hinged on the Speech or Debate Clause found @ @ @ @ @ @ @ the Constitution that states “ any speech or debate in either House , [ Members of Congress ] shall not be questioned in any other place.
” The clause was intended by the Founders to give Congress independence over its own legislative acts .
And while McCarthy and plaintiff Republican constituents argued the court should make a distinction between “ actual legislative acts ” and “ executing a legislative order , or carrying out [ legislative ] directions , ” Contreras found it unnecessary .
“ Applying the Clause here to the administration @ @ @ @ @ @ @ on legislation by proxy does not stretch the meaning of the word ‘ legislative ’ in a similar way or in any way at all , ” Judge Contreras wrote .
In the end , besides actual debate , speech or voting , there were few other actions the court could conceive of that would be accurately described as “ legislative ” than the regulation of how votes are cast .
On news of the ruling Thursday , Speaker Pelosi said in a statement : “ Remote voting by proxy is fully consistent @ @ @ @ @ @ @ century of legal precedent , including Supreme Court cases , that make clear that the House can determine its own rules.
” “ The nation is in the middle of a dangerous pandemic and the House of Representatives must continue to work , ” she added .
Since the House voted in favor of it in May , nearly 100 House Democrats have voted by proxy and without incident .
The Clerk of the U.S. House , Cheryl Johnson — also named in the complaint along with Sergeant-at-Arms Paul Irving — keeps a @ @ @ @ @ @ @ accessible to the public .
Though in effect for weeks , it was not until late last month that a GOP lawmaker finally voted by proxy .
Florida Republican Representative Francis Rooney designated Virginia Democrat Don Beyer on July 29 to cast his nay vote on a procedural motion just ahead of another vote on a slew of federal budget appropriations .
The decision by the 66-year old Rooney coincided with the announcement from Texas Republican Louie Gohmert that he tested positive for Covid-19 .

A lawsuit filed by House Republicans attempting to stop a proxy voting system launched by Democrats to ensure social distancing and reduce the spread of Covid-19 in Congress was dismissed by a federal judge on Thursday.
WASHINGTON (CN) — A lawsuit filed by House Republicans attempting to stop a proxy voting system launched by Democrats to ensure social distancing and reduce the spread of Covid-19 in Congress was dismissed by a federal judge on Thursday.
“During the pandemic, Congress has continued working and has passed relief bills aimed at addressing the public health emergency, but members have not been immune from the diseases’ spread,” U.S. District Judge Rudolph Contreras wrote at the top of his 18-page opinion, a reference to at least a dozen lawmakers who have tested positive for the novel coronavirus despite the recent and unprecedented introduction of proxy voting on the House floor in May.
Nearly two dozen House Republicans led by Minority Leader Kevin McCarthy sued Speaker of the House Nancy Pelosi on May 26, arguing that the party-line passage of temporary rules only a week before on proxy voting, or the use of a surrogate House member to cast one’s vote if absent, was unconstitutional and would “dilute” voting power.
McCarthy said the proxy method and the use of remote hearings — despite the pandemic and a death toll at the time of roughly 100,000 — represented a “dereliction of duty” and was ultimately a measure that would “silence the American people’s voice during a crisis.”
The new and temporary rules permit a surrogate to vote for up to 10 members at a time, a factor that McCarthy and other Republicans argued diminished the power of elected officials that weren’t physically present while placing more in those who were.
Judge Contreras gave some shrift to this argument Thursday, pointing to principles undergirding Supreme Court rulings in Raines v. Byrd, which found that individual Congresspeople are not granted automatic standing to determine the constitutionality of laws impacting the whole body, and in Michel v. Anderson, which found that constituents had standing to file grievances about a member’s voting power.
But Judge Contreras opted to exercise “district court restraint” on the matter of dilution since neither high court case was totally eviscerated in the lawmakers’ dispute.
Instead, dismissal of the GOP’s complaint hinged on the Speech or Debate Clause found in Article I, Section VI of the Constitution that states “any speech or debate in either House, [Members of Congress] shall not be questioned in any other place.”
The clause was intended by the Founders to give Congress independence over its own legislative acts. And while McCarthy and plaintiff Republican constituents argued the court should make a distinction between “actual legislative acts” and “executing a legislative order, or carrying out [legislative] directions,” Contreras found it unnecessary.
“Applying the Clause here to the administration of rules governing how Members can vote on legislation by proxy does not stretch the meaning of the word ‘legislative’ in a similar way or in any way at all,” Judge Contreras wrote.
In the end, besides actual debate, speech or voting, there were few other actions the court could conceive of that would be accurately described as “legislative” than the regulation of how votes are cast.
On news of the ruling Thursday, Speaker Pelosi said in a statement: “Remote voting by proxy is fully consistent with the Constitution and more than a century of legal precedent, including Supreme Court cases, that make clear that the House can determine its own rules.”
“The nation is in the middle of a dangerous pandemic and the House of Representatives must continue to work,” she added.
Since the House voted in favor of it in May, nearly 100 House Democrats have voted by proxy and without incident. The Clerk of the U.S. House, Cheryl Johnson — also named in the complaint along with Sergeant-at-Arms Paul Irving — keeps a running log of active proxy designations, accessible to the public.
Though in effect for weeks, it was not until late last month that a GOP lawmaker finally voted by proxy.
Florida Republican Representative Francis Rooney designated Virginia Democrat Don Beyer on July 29 to cast his nay vote on a procedural motion just ahead of another vote on a slew of federal budget appropriations.
The decision by the 66-year old Rooney coincided with the announcement from Texas Republican Louie Gohmert that he tested positive for Covid-19.


courthousenews--2020-08-07--Vallejo Police Sued Over Shooting Death of Unarmed Man

SACRAMENTO , Calif. ( CN ) — Responding to a looting call in June during the peak of the George Floyd protests , a group of police drove into a Walgreens parking lot and pierced the dark , thick San Francisco Bay Area air with a spate of bullets .
With the unmarked pickup truck still moving , a Vallejo police officer aimed his rifle from where he sat in the back seat and fired a kill shot into his target , 22-year-old Sean Monterrosa .
The police killing of another unarmed person of color not only roiled residents of @ @ @ @ @ @ @ suspicion of the state ’ s attorney general .
Now the shooting has spawned a federal lawsuit , with Monterrosa ’ s family claiming he was killed by a “ trigger-happy ” Vallejo police officer .
“ They have not been through this before and will never be all right again , because defendant Jarrett Tonn was trigger-happy , could not see accurately through the unmarked police car windshield , and murdered their son and brother , who was only 22 years old , ” the family says in their 15-page complaint filed @ @ @ @ @ @ @ on his knees with his hands raised when he was killed by a single AR-15 semi-automatic rifle round that entered his neck and exited his skull .
Monterrosa , whose parents immigrated from Argentina , had a hammer in his sweatshirt pocket and the plaintiffs claim he was “ suspected at most of looting.
” In video released by the department , an officer moments after the shooting says “ he pointed a gun at us.
” The same officer goes on to command Monterrosa — lying lifeless near the drive-thru pharmacy — @ @ @ @ @ @ @ officers whether they saw him with a gun .
As protests over police brutality continued across the state and country , the department waited more than a day to announce the incident .
The department claims Monterrosa was a suspect at the scene of a burglary and carrying a 15-inch hammer .
More than two months after the shooting , the department has yet to release the officer ’ s name , citing a court order .
But it says current use-of-force guidelines do allow and officers are trained to shoot through windows @ @ @ @ @ @ @ the department hasn ’ t publicly released the officer ’ s name , the plaintiffs ’ attorney John Burris is confident enough to name Jarrett Tonn in the lawsuit , filed in the Eastern District of California .
“ It was a panicky officer who was involved in three prior shootings .
He was unfit to carry a gun , ” Burris said in a phone interview .
The Monterrosa family accuses the city , Tonn and unnamed police officers of wrongful death , excessive force , Monell violations and due process .
@ @ @ @ @ @ @ and punitive damages .
The case has been assigned to U.S. District Judge Troy Nunley , a Barack Obama appointee .
In response to the lawsuit , the city says its “ hearts go out ” to the family .
“ We respect their right to initiate legal action and we respect the judicial process to follow .
We know this is a painful step for the Monterrosa family .
It is our sincere hope that this process will guide the family and our community toward healing , ” the city said in @ @ @ @ @ @ @ also facing scrutiny from California Attorney General Xavier Becerra , who is investigating whether officers purposely damaged evidence from the shooting .
The shattered windshield was disposed of after the shooting and the truck was placed back into service without permission from the city attorney .
The investigation was prompted by a request from the city itself and it has also placed an employee on administrative leave .
Burris , who is handling several civil rights and excessive force cases against the city , said he ’ s lost an opportunity to do @ @ @ @ @ @ @ Experienced officers wouldn ’ t destroy evidence , ” Burris said .
“ Unless they were trying to cover something up.
” The shooting and missing evidence continue a disturbing pattern at the Vallejo Police Department , Burris contends .
“ The department is out of control ; the union has too much power .
”

Responding to a looting call in June during the peak of the George Floyd protests, a group of police drove into a Walgreens parking lot and pierced the dark, thick San Francisco Bay Area air with a spate of bullets.
SACRAMENTO, Calif. (CN) — Responding to a looting call in June during the peak of the George Floyd protests, a group of police drove into a Walgreens parking lot and pierced the dark, thick San Francisco Bay Area air with a spate of bullets.
With the unmarked pickup truck still moving, a Vallejo police officer aimed his rifle from where he sat in the back seat and fired a kill shot into his target, 22-year-old Sean Monterrosa.
A memorial for Sean Monterrosa, who was shot and killed by a Vallejo, California, police officer in June 2020. (By Dale Cruse from San Francisco, CA, USA - Black Lives Matter, CC BY 2.0, Link)
The police killing of another unarmed person of color not only roiled residents of the Bay Area city but drew the suspicion of the state’s attorney general. Now the shooting has spawned a federal lawsuit, with Monterrosa’s family claiming he was killed by a “trigger-happy” Vallejo police officer.
“They have not been through this before and will never be all right again, because defendant Jarrett Tonn was trigger-happy, could not see accurately through the unmarked police car windshield, and murdered their son and brother, who was only 22 years old,” the family says in their 15-page complaint filed Thursday.
The family claims Monterrosa was on his knees with his hands raised when he was killed by a single AR-15 semi-automatic rifle round that entered his neck and exited his skull. Monterrosa, whose parents immigrated from Argentina, had a hammer in his sweatshirt pocket and the plaintiffs claim he was “suspected at most of looting.”
In video released by the department, an officer moments after the shooting says “he pointed a gun at us.” The same officer goes on to command Monterrosa — lying lifeless near the drive-thru pharmacy — not to move and asks the other officers whether they saw him with a gun.
As protests over police brutality continued across the state and country, the department waited more than a day to announce the incident. The department claims Monterrosa was a suspect at the scene of a burglary and carrying a 15-inch hammer.
More than two months after the shooting, the department has yet to release the officer’s name, citing a court order. But it says current use-of-force guidelines do allow and officers are trained to shoot through windows when encountering an armed suspect.
While the department hasn’t publicly released the officer’s name, the plaintiffs’ attorney John Burris is confident enough to name Jarrett Tonn in the lawsuit, filed in the Eastern District of California.
“It was a panicky officer who was involved in three prior shootings. He was unfit to carry a gun,” Burris said in a phone interview.
The Monterrosa family accuses the city, Tonn and unnamed police officers of wrongful death, excessive force, Monell violations and due process. It asks for unspecified general, special and punitive damages.
The case has been assigned to U.S. District Judge Troy Nunley, a Barack Obama appointee.
In response to the lawsuit, the city says its “hearts go out” to the family.
“We respect their right to initiate legal action and we respect the judicial process to follow. We know this is a painful step for the Monterrosa family. It is our sincere hope that this process will guide the family and our community toward healing,” the city said in a statement.
Meanwhile the department is also facing scrutiny from California Attorney General Xavier Becerra, who is investigating whether officers purposely damaged evidence from the shooting.
The shattered windshield was disposed of after the shooting and the truck was placed back into service without permission from the city attorney. The investigation was prompted by a request from the city itself and it has also placed an employee on administrative leave.
Burris, who is handling several civil rights and excessive force cases against the city, said he’s lost an opportunity to do expert analysis of the windshield.
“Experienced officers wouldn’t destroy evidence,” Burris said. “Unless they were trying to cover something up.”
The shooting and missing evidence continue a disturbing pattern at the Vallejo Police Department, Burris contends.
“The department is out of control; the union has too much power.”


courthousenews--2020-08-06--Rapid-Result Covid Tests Ordered for All Immigrants at For-Profit Detention Center

SAN FRANCISCO ( CN ) — In a brief but pointed ruling Thursday , a federal judge ordered rapid Covid-19 testing of all immigrants being held by Immigration & Customs Enforcement at its Mesa Verde facility in Bakersfield , California — a process that ICE and the private contractor that runs the facility have avoided for months .
“ Indeed , the documentary evidence shows that the defendants have avoided widespread testing of staff and detainees at the facility , not for lack of tests , but for fear that positive test results would require them to implement safety measures @ @ @ @ @ @ @ the trouble , ” U.S. District Judge Vincent Chhabria wrote .
“ This conduct by the defendants has put the detainees at serious risk of irreparable harm .
The defendants have also jeopardized the safety of their own employees .
And they have endangered the community at large.
” Civil rights attorneys have leaned on the judge to force ICE and GEO Group to mitigate a potential widespread outbreak by ordering more testing and isolating the infected .
In a motion for a temporary restraining order filed Wednesday , they note ICE continues @ @ @ @ @ @ @ population while leaving symptomatic detainees in their dorms to potentially infect others .
Last week , ICE released seven people , but added 16 more .
While the agency ’ s policy is to test every new arrival , the tests are of the lab variety , not the rapid-result kind Chhabria ordered .
Mesa Verde warden Nathan Allen , who works for Geo Group , also acknowledged in a deposition that the company does not require its employees to be tested or remain at home if they have been in contact with @ @ @ @ @ @ @ says .
A class of 400 immigrants sued in April overcrowded and unsanitary conditions at Mesa Verde and Yuba County Jail in Marysville .
A trove of emails from that case made public by the Lawyers Committee for Civil Rights of the San Francisco Bay Area reveal a troubling lack of mitigation plans and space to house positive detainees .
One email sent in early July by a facility nurse said Acting Field Office Director Alexander Pham had rejected a testing plan “ due to the housing restrictions we face.
” She added @ @ @ @ @ @ @ cause the same housing issue we had last week but on a larger scale.
” In another email , Allen told Geo Group operations director Cheryl Nelson that Pham “ would rather not have staff testing as that may impact ERO functions , i.e.
, an asymptomatic person testing positive would require possible dorm cohorts and detainee testing protocols.
” “ They didn ’ t implement a meaningful , universal testing regime only because they didn ’ t want to know who was positive because that would throw a wrench into the system @ @ @ @ @ @ @ in a phone interview .
The Lawyers Committee for Civil Rights said eight detainees and 14 staff members are currently infected .
Two detainees have been hospitalized .
“ One of the things that ’ s most frustrating about what ’ ve seen in recent weeks is that even as this outbreak was spreading , ICE and GEO were putting more people in Mesa Verde , ” Riordan said .
Immigrants housed at Mesa Verde have also reported an atmosphere of indifference to the risk of outbreak .
One man , a 65-year-old @ @ @ @ @ @ @ aches , fatigue and a cough for days .
His requests for medical care were repeatedly ignored , according to his dorm mates .
Saeturn is now at Mercy Hospital and other people in the dorm are now showing Covid-19 symptoms .
Riordan said ICE has since tested everyone in that dorm but results have been delayed by the lab , giving the virus more time to spread .
“ The results are delayed and even when you get those test results , they are not liable to be accurate , ” Riordan @ @ @ @ @ @ @ tested positive will have then interacted with people in that dormitory .
ICE will be in the same position of essentially chasing its own tail so long as delayed-result lab tests are used .
One of the things that will be useful is mandating rapid-result testing starting next week.
” To create an isolation unit , ICE and Geo Group merged Dorm C , where Saeturn was housed , with Dorm B. Riordan said the combined dorm now houses 52 detainees .
“ It ’ s about twice as crowded as it was @ @ @ @ @ @ @ , Chhabria ordered ICE to stop admitting new detainees to Mesa Verde without first ensuring they have proper testing protocols in place and a plan to isolate those who are positive .
Chhabria chided the agency and GEO Group on Thursday for ignoring that order .
“ The defendants , having responded to the health crisis in such a cavalier fashion ( even in the face of litigation and a string of court orders ) , have lost the credibility to complain that the relief requested by the plaintiffs is too rigid or @ @ @ @ @ @ @ The defendants have also lost the right to be trusted that they will accomplish on their own what the plaintiffs contend requires a court order to ensure.
” Chhabria ’ s order Thursday requires ICE and Geo Group to stop introducing new detainees to the facility and maintain a segregated dorm for the infected .
They must also file daily reports that include a roster of everyone being held at Mesa Verde and where they are housed , updates staff and detainee testing and their results , and additional information on what else @ @ @ @ @ @ @ .
The judge stopped short of capping the population of each dorm at 35 as the detainees ’ counsel requested .
“ Such an order would possibly force ICE to immediately release dozens of detainees — to many of whom the court has denied bail based on evidence of dangerousness — without conducting any safety evaluation , ’ he wrote .
Riordan said although Chhabria is not mandating releases , he left room for counsel to renew their request to impose a hard cap on dorm numbers .
“ We ’ re going @ @ @ @ @ @ @ we think should be released and we hope that ’ s a way the system already in place can protect those still in detention at Mesa Verde , ” he said .
The ACLU and Lawyers Committee for Civil Rights are representing the detainees along with private attorneys from Cooley LLP and Lakin & Wille LLP .
“ Getting to this point was avoidable , but ICE and GEO ’ s complete disregard for the wellbeing of detainees has jeopardized not only their health but also that of the community , ” ACLU @ @ @ @ @ @ @ statement .
Cooley LLP partner Martin Schenker said in a statement that Chhabria ’ s order will provide some measure of safety at the facility .
“ Now that the outbreak has arrived , and in the face of ICE ’ s callous disregard for detainees in its custody , today ’ s court order provides essential safeguards necessary to protect the health and safety of detainees housed at Mesa Verde and residents of the surrounding community , ” he said .
Chhabria will hold a hearing on Aug. 21 , where ICE @ @ @ @ @ @ @ order should not be made permanent .
He said he is considering questioning Allen and others “ to explore further the question of deliberate indifference .
”

In a brief but pointed ruling Thursday, a federal judge ordered rapid Covid-19 testing of all immigrants being held by Immigration & Customs Enforcement at its Mesa Verde facility in Bakersfield, California — a process that ICE and the private contractor that runs the facility have avoided for months.
SAN FRANCISCO (CN) — In a brief but pointed ruling Thursday, a federal judge ordered rapid Covid-19 testing of all immigrants being held by Immigration & Customs Enforcement at its Mesa Verde facility in Bakersfield, California — a process that ICE and the private contractor that runs the facility have avoided for months.
“Indeed, the documentary evidence shows that the defendants have avoided widespread testing of staff and detainees at the facility, not for lack of tests, but for fear that positive test results would require them to implement safety measures that they apparently felt were not worth the trouble,” U.S. District Judge Vincent Chhabria wrote. “This conduct by the defendants has put the detainees at serious risk of irreparable harm. The defendants have also jeopardized the safety of their own employees. And they have endangered the community at large.”
Civil rights attorneys have leaned on the judge to force ICE and GEO Group to mitigate a potential widespread outbreak by ordering more testing and isolating the infected. In a motion for a temporary restraining order filed Wednesday, they note ICE continues to introduce more people to the general population while leaving symptomatic detainees in their dorms to potentially infect others. Last week, ICE released seven people, but added 16 more.
While the agency’s policy is to test every new arrival, the tests are of the lab variety, not the rapid-result kind Chhabria ordered.
Mesa Verde warden Nathan Allen, who works for Geo Group, also acknowledged in a deposition that the company does not require its employees to be tested or remain at home if they have been in contact with someone who has Covid-19, the motion says.
A class of 400 immigrants sued in April overcrowded and unsanitary conditions at Mesa Verde and Yuba County Jail in Marysville.
A trove of emails from that case made public by the Lawyers Committee for Civil Rights of the San Francisco Bay Area reveal a troubling lack of mitigation plans and space to house positive detainees.
One email sent in early July by a facility nurse said Acting Field Office Director Alexander Pham had rejected a testing plan “due to the housing restrictions we face.” She added, “Testing all detainees will potentially cause the same housing issue we had last week but on a larger scale.”
In another email, Allen told Geo Group operations director Cheryl Nelson that Pham “would rather not have staff testing as that may impact ERO functions, i.e., an asymptomatic person testing positive would require possible dorm cohorts and detainee testing protocols.”
“They didn't implement a meaningful, universal testing regime only because they didn't want to know who was positive because that would throw a wrench into the system,” ACLU staff attorney Sean Riordan in a phone interview.
The Lawyers Committee for Civil Rights said eight detainees and 14 staff members are currently infected. Two detainees have been hospitalized.
“One of the things that's most frustrating about what've seen in recent weeks is that even as this outbreak was spreading, ICE and GEO were putting more people in Mesa Verde,” Riordan said.
Immigrants housed at Mesa Verde have also reported an atmosphere of indifference to the risk of outbreak.
One man, a 65-year-old named Yao Saeturn, suffered from body aches, fatigue and a cough for days. His requests for medical care were repeatedly ignored, according to his dorm mates. Saeturn is now at Mercy Hospital and other people in the dorm are now showing Covid-19 symptoms.
Riordan said ICE has since tested everyone in that dorm but results have been delayed by the lab, giving the virus more time to spread.
“The results are delayed and even when you get those test results, they are not liable to be accurate,” Riordan said. “Anybody who will have tested positive will have then interacted with people in that dormitory. ICE will be in the same position of essentially chasing its own tail so long as delayed-result lab tests are used. One of the things that will be useful is mandating rapid-result testing starting next week.”
To create an isolation unit, ICE and Geo Group merged Dorm C, where Saeturn was housed, with Dorm B. Riordan said the combined dorm now houses 52 detainees. "It's about twice as crowded as it was,” he said.
In June, Chhabria ordered ICE to stop admitting new detainees to Mesa Verde without first ensuring they have proper testing protocols in place and a plan to isolate those who are positive. Chhabria chided the agency and GEO Group on Thursday for ignoring that order.
"The defendants, having responded to the health crisis in such a cavalier fashion (even in the face of litigation and a string of court orders), have lost the credibility to complain that the relief requested by the plaintiffs is too rigid or burdensome,” he wrote. “The defendants have also lost the right to be trusted that they will accomplish on their own what the plaintiffs contend requires a court order to ensure.”
Chhabria’s order Thursday requires ICE and Geo Group to stop introducing new detainees to the facility and maintain a segregated dorm for the infected. They must also file daily reports that include a roster of everyone being held at Mesa Verde and where they are housed, updates staff and detainee testing and their results, and additional information on what else is being done to manage the outbreak.
The judge stopped short of capping the population of each dorm at 35 as the detainees’ counsel requested. “Such an order would possibly force ICE to immediately release dozens of detainees — to many of whom the court has denied bail based on evidence of dangerousness — without conducting any safety evaluation,’ he wrote.
Riordan said although Chhabria is not mandating releases, he left room for counsel to renew their request to impose a hard cap on dorm numbers. “We’re going to continue to submit individual bail applications we think should be released and we hope that’s a way the system already in place can protect those still in detention at Mesa Verde,” he said.
The ACLU and Lawyers Committee for Civil Rights are representing the detainees along with private attorneys from Cooley LLP and Lakin & Wille LLP.
“Getting to this point was avoidable, but ICE and GEO’s complete disregard for the wellbeing of detainees has jeopardized not only their health but also that of the community,” ACLU staff attorney Stephanie Padilla said in a statement.
Cooley LLP partner Martin Schenker said in a statement that Chhabria’s order will provide some measure of safety at the facility. “Now that the outbreak has arrived, and in the face of ICE’s callous disregard for detainees in its custody, today’s court order provides essential safeguards necessary to protect the health and safety of detainees housed at Mesa Verde and residents of the surrounding community,” he said.
Chhabria will hold a hearing on Aug. 21, where ICE will be required to show why the order should not be made permanent. He said he is considering questioning Allen and others “to explore further the question of deliberate indifference.”


courthousenews--2020-08-06--Former Saudi Official Sues Crown Prince Over Assassination Attempt

WASHINGTON ( CN ) — All that stood between Saad Aljabri and a team of Saudi Arabian assassins he says Crown Prince Mohammed bin Salman dispatched to kill him in October 2018 were suspicious Canadian border security agents .
Armed with forensic tools and complete with specialists in cleaning up crime scenes , the alleged hit squad was foiled after lying about knowing each other under questioning from Canadian officials .
Aljabri fears if the team had made it into Canada , he would have faced a fate similar to that of former Washington Post journalist Jamal Khashoggi , another @ @ @ @ @ @ @ had been murdered and dismembered with a bone saw in the Saudi Arabian consulate in Istanbul two weeks earlier .
In a 107-page complaint filed Thursday in federal court in Washington , D.C. , Aljabri , a former Saudi government official with connections to U.S. intelligence and who pinned Khashoggi ’ s death on bin Salman , says he is the victim of an ongoing assassination attempt .
Aljabri claims bin Salman wants him dead because he has ties with U.S. intelligence agencies and knows secrets that could threaten the crown prince ’ @ @ @ @ @ @ @ United States .
“ Few places hold more sensitive , humiliating and damning information about defendant bin Salman than the mind and memory of Dr. Saad — except perhaps the recordings Dr. Saad made in anticipation of his killing , ” the complaint states .
After nearly 40 years in various positions , Aljabri was booted from the Saudi government in 2015 after meeting with then-U.S. Director of National Intelligence John Brennan .
He fled Saudi Arabia in 2017 , but bin Salman tried to convince him to return under the guise of @ @ @ @ @ @ @ were nothing more than an attempt to bring him back to a country where it would be easier to kill him .
“ Defendant bin Salman ’ s attempts to bait Dr. Saad ’ s return soon turned into demands , ” the complaint states .
“ Demands soon turned into threats .
Threats turned into cold-blooded determination : defendant bin Salman promised to ‘ use all available means ’ and ‘ take measures that would be harmful to you.
’ ” In addition to allegedly dispatching the team of assassins — members @ @ @ @ @ @ @ loyal to bin Salman — Aljabri said bin Salman sent agents to track down his whereabouts and “ disappeared ” two of his children , who are now being held in an undisclosed location .
Bin Salman first blocked Aljabri ’ s son and daughter , 21 and 20 respectively , from leaving Saudi Arabia to study in the United States , allegedly using their plight as leverage to get Aljabri to return to the country .
After those attempts failed , a team of 50 armed men raided their home , taking @ @ @ @ @ @ @ , according to the complaint .
Aljabri has not seen his children since they were taken and does not know if they are safe .
“ Based on defendant bin Salman ’ s conduct to date , Dr. Saad has significant reason to fear for his children ’ s safety , ” the complaint states .
Suing bin Salman , the crown prince ’ s personal foundation and a group of Saudi officials , Saad seeks compensatory , punitive damages and other relief .

All that stood between Saad Aljabri and a team of Saudi Arabian assassins he says Crown Prince Mohammed bin Salman dispatched to kill him in October 2018 were suspicious Canadian border security agents.
WASHINGTON (CN) — All that stood between Saad Aljabri and a team of Saudi Arabian assassins he says Crown Prince Mohammed bin Salman dispatched to kill him in October 2018 were suspicious Canadian border security agents.
Armed with forensic tools and complete with specialists in cleaning up crime scenes, the alleged hit squad was foiled after lying about knowing each other under questioning from Canadian officials.
Aljabri fears if the team had made it into Canada, he would have faced a fate similar to that of former Washington Post journalist Jamal Khashoggi, another target of bin Salman’s who had been murdered and dismembered with a bone saw in the Saudi Arabian consulate in Istanbul two weeks earlier.
In a 107-page complaint filed Thursday in federal court in Washington, D.C., Aljabri, a former Saudi government official with connections to U.S. intelligence and who pinned Khashoggi’s death on bin Salman, says he is the victim of an ongoing assassination attempt.
Aljabri claims bin Salman wants him dead because he has ties with U.S. intelligence agencies and knows secrets that could threaten the crown prince’s campaign to win influence with the United States.
“Few places hold more sensitive, humiliating and damning information about defendant bin Salman than the mind and memory of Dr. Saad — except perhaps the recordings Dr. Saad made in anticipation of his killing,” the complaint states.
After nearly 40 years in various positions, Aljabri was booted from the Saudi government in 2015 after meeting with then-U.S. Director of National Intelligence John Brennan. He fled Saudi Arabia in 2017, but bin Salman tried to convince him to return under the guise of reconciliation. To Aljabri, the requests were nothing more than an attempt to bring him back to a country where it would be easier to kill him.
“Defendant bin Salman’s attempts to bait Dr. Saad’s return soon turned into demands,” the complaint states. “Demands soon turned into threats. Threats turned into cold-blooded determination: defendant bin Salman promised to ‘use all available means’ and ‘take measures that would be harmful to you.’”
In addition to allegedly dispatching the team of assassins — members of the so-called Tiger Squad that is loyal to bin Salman — Aljabri said bin Salman sent agents to track down his whereabouts and “disappeared” two of his children, who are now being held in an undisclosed location.
Bin Salman first blocked Aljabri’s son and daughter, 21 and 20 respectively, from leaving Saudi Arabia to study in the United States, allegedly using their plight as leverage to get Aljabri to return to the country. After those attempts failed, a team of 50 armed men raided their home, taking the children into custody without a reason, according to the complaint.
Aljabri has not seen his children since they were taken and does not know if they are safe.
“Based on defendant bin Salman’s conduct to date, Dr. Saad has significant reason to fear for his children’s safety,” the complaint states.
Suing bin Salman, the crown prince’s personal foundation and a group of Saudi officials, Saad seeks compensatory, punitive damages and other relief.


Top Eight

Your Thursday night briefing from the staff of Courthouse News Top eight CNS stories for today including federal agents in Portland are barred for two more weeks from assaulting and arresting journalists for doing their jobs ; New claims for unemployment benefits fell below 1 million for the first time since March ; New York Attorney General Letitia James filed a lawsuit to dissolve the National Rifle Association , and more .
Sign up for CNS Top Eight , a roundup of the day ’ s top stories delivered directly to your email Monday through Friday .
1 . )
@ @ @ @ @ @ @ protested federal involvement in recent civil protests , the acting director of the Department of Homeland Security told Senate lawmakers on Thursday that municipal interference put lives in jeopardy .
2 . )
Six months into the Covid-19 pandemic and with three times the number of Americans dead from the novel respiratory virus than were killed in the Vietnam War , House Democrats slammed the Trump administration on Thursday for the lack of a cohesive 50-state strategy to end the crisis and repair a hemorrhaging economy .
3 . )
New claims for @ @ @ @ @ @ @ the first time since March , the Labor Department said Thursday in its weekly report .
4 . )
Employing the same move that helped shutter the Trump Foundation , New York Attorney General Letitia James filed a lawsuit Thursday to dissolve the National Rifle Association .
5 . )
Scientists with the National Oceanic and Atmospheric Administration projected Thursday that the 2020 hurricane season will see 19 to 25 named storms , including up to six major hurricanes bringing winds of more than 110 mph .
6 . )
Federal agents in @ @ @ @ @ @ @ from assaulting and arresting journalists for doing their jobs — an order a federal judge said was necessary based on the Department of Homeland Security ’ s announcement that its agents would stay in the city until the government sees improvement in what it called the “ dynamic and volatile ” situation there .
7 . )
Adding another wrinkle to an unparalleled election , California elections officials hope to turn empty sports arenas and private businesses into polling sites come November .
8 . )
The frequency of severe droughts across central @ @ @ @ @ @ @ that struck the region in 2018 , is projected to climb by the end of the century if political leaders don ’ t drastically curb greenhouse gas emissions , researchers in Germany said in a study released Thursday .

Top eight CNS stories for today including federal agents in Portland are barred for two more weeks from assaulting and arresting journalists for doing their jobs; New claims for unemployment benefits fell below 1 million for the first time since March; New York Attorney General Letitia James filed a lawsuit to dissolve the National Rifle Association, and more.
Your Thursday night briefing from the staff of Courthouse News
Top eight CNS stories for today including federal agents in Portland are barred for two more weeks from assaulting and arresting journalists for doing their jobs; New claims for unemployment benefits fell below 1 million for the first time since March; New York Attorney General Letitia James filed a lawsuit to dissolve the National Rifle Association, and more.
Sign up for CNS Top Eight, a roundup of the day’s top stories delivered directly to your email Monday through Friday.
National
1.) Turning the tables on those who have protested federal involvement in recent civil protests, the acting director of the Department of Homeland Security told Senate lawmakers on Thursday that municipal interference put lives in jeopardy.
This screenshot shows Acting Homeland Security Director Chad Wolf testifying Thursday, Aug. 6, before the Senate’s Committee on Homeland Security and Government Affairs. (Courthouse News image)
2.) Six months into the Covid-19 pandemic and with three times the number of Americans dead from the novel respiratory virus than were killed in the Vietnam War, House Democrats slammed the Trump administration on Thursday for the lack of a cohesive 50-state strategy to end the crisis and repair a hemorrhaging economy.
A man with COVID-19, wearing a protective cover, is transferred from the emergency room to a COVID-19 unit at Starr County Memorial Hospital, Monday, July 27, 2020, in Rio Grande City, Texas. For nearly a month, the Rio Grande Valley pleaded for a field hospital, but not until Monday was one ready. (AP Photo/Eric Gay)
3.) New claims for unemployment benefits fell below 1 million for the first time since March, the Labor Department said Thursday in its weekly report.
To avoid spreading Covid-19, produce is roped off from customers at a Colorado Fresh Market Denver, Colorado’s Cherry Creek Shopping Center on Wednesday, Aug. 5. (Courthouse News photo/Amanda Pampuro)
4.) Employing the same move that helped shutter the Trump Foundation, New York Attorney General Letitia James filed a lawsuit Thursday to dissolve the National Rifle Association.
National Rifle Association members listen to speakers during the NRA's 142 annual Meetings and Exhibits at the George R. Brown Convention Center in Houston on May 4, 2013. (Johnny Hanson/Houston Chronicle via AP, File)
5.) Scientists with the National Oceanic and Atmospheric Administration projected Thursday that the 2020 hurricane season will see 19 to 25 named storms, including up to six major hurricanes bringing winds of more than 110 mph.
Residents survey the damages along the waterfront following the effects of Hurricane Isaias in Southport, N.C., Tuesday, Aug. 4, 2020. (AP Photo/Gerry Broome)
Regional
6.) Federal agents in Portland are barred for two more weeks from assaulting and arresting journalists for doing their jobs — an order a federal judge said was necessary based on the Department of Homeland Security’s announcement that its agents would stay in the city until the government sees improvement in what it called the “dynamic and volatile” situation there.
Federal police with the Department of Homeland Security patrol the sidewalk outside the Mark O. Hatfield federal courthouse on Friday, after shooting numerous rounds of tear gas at protesters. (Courthouse News photo/Karina Brown)
7.) Adding another wrinkle to an unparalleled election, California elections officials hope to turn empty sports arenas and private businesses into polling sites come November.
Voters who dropped of mail-in ballots or cast their votes on machines Tuesday in California’s special election for the 25th Congressional District seat did so under social distancing and public health guidelines. (Courthouse News photo/Martín Macias Jr.)
International
8.) The frequency of severe droughts across central Europe, such as the two-year spell that struck the region in 2018, is projected to climb by the end of the century if political leaders don’t drastically curb greenhouse gas emissions, researchers in Germany said in a study released Thursday.


courthousenews--2020-08-06--Incumbent GOP Senators Face Tight Races That Could Reshape Senate

HAMDEN , Conn. ( CN ) — Three longtime Republican senators who are key to the party ’ s grip on the Senate this fall are in trouble , according to a new Quinnipiac poll released Thursday .
The poll contained disappointing numbers for Susan Collins of Maine , Lindsey Graham of South Carolina and Senate Majority Leader Mitch McConnell of Kentucky .
Poor showings by the three in November could help hand the Senate back to Democrats , who lost their majority there in 2014 .
Collins , who is seeking a fifth term , is trailing her opponent @ @ @ @ @ @ @ by 47 % to 43 % with 6 % undecided .
The poll showed Graham , who is seeking a fourth term , tied with Jaime Harrison , a Black lawyer and associate chairman of the Democratic National Committee , at 44 % apiece .
McConnell was clinging to a 5 percentage point lead over Amy McGrath , the first female Marine to fly a combat mission .
In his last election , McConnell cruised to victory with a 16-point margin .
These results will induce “ high anxiety for the GOP , @ @ @ @ @ @ @ Malloy .
“ Three GOP Senators who easily won their last reelection bids are looking over their shoulders less than three months from Election Day.
” Real Clear Politics currently gives Republicans a 46- to 45-seat advantage in the Senate with 9 toss-up states , including Maine and South Carolina .
It rates Kentucky as “ likely ” Republican , though , and the poll suggests that McGrath has now moved well within striking distance .
Polling in Kentucky this year has been confusing .
A Morning Consult poll released earlier this week @ @ @ @ @ @ @ % to 36 % .
But several other polls have suggested that McGrath is only a few percentage points behind .
The Quinnipiac survey suggests that McConnell is slightly less popular in Kentucky than Trump , running behind the president by about 3 percentage points , while McGrath is more popular than former Vice President Joe Biden by a similar margin .
In Maine , although Collins is a centrist who often disagrees with her party — she has sided with President Trump only two-thirds of the time — she became a lightning @ @ @ @ @ @ @ deciding vote to put Justice Brett Kavanaugh on the Supreme Court .
Millions of dollars have flooded into her small state from all over the country in an effort to defeat her .
The Quinnipiac poll is the first to be released since Gideon won the Democratic primary on July 14 .
In the poll , Collins was viewed favorably by only 42 % of Mainers and unfavorably by 49 % .
Gideon was seen favorably by 40 % and unfavorably by 35 % .
One bright spot for Collins is that 23 @ @ @ @ @ @ @ t know enough about Gideon to form a favorable or unfavorable opinion , which means Collins still has an opportunity to define her opponent in a negative light .
Collins ’ advertising has painted Gideon as risky and untested .
Gideon has lived in Maine since 2004 and has been a state representative since 2012 .
By contrast , Collins has been in the Senate since 1997 and her family has operated a lumber business in Caribou , Maine since 1844 .
In South Carolina , the Quinnipiac poll comes on the heels @ @ @ @ @ @ @ easy striking distance of Graham .
Harrison has raised $ 30 million for his campaign .
As in Maine , much of the money has come from out-of-state as Democrats nationwide targeted a senator who backed Kavanaugh .
Also similar to Maine , the Democratic challenger is still unknown to many .
Some 37 % of Palmetto State voters said they don ’ t know enough about Harrison to form a favorable or unfavorable opinion .
And as in Kentucky , Trump is slightly more popular than the Republican senator .
Graham has @ @ @ @ @ @ @ office but famously called him a “ race-baiting , xenophobic bigot ” during the 2016 election .
In the presidential race , the poll shows Trump beating Biden by 9 points in Kentucky and 5 points in South Carolina , but losing by 15 points in Maine .
Those figures are a big contrast to 2016 , when Trump won Kentucky by 30 points and South Carolina by 14 , and lost Maine by only 3 points .

Three longtime Republican senators who are key to the party’s grip on the Senate this fall are in trouble, according to a new Quinnipiac poll released Thursday.
HAMDEN, Conn. (CN) — Three longtime Republican senators who are key to the party’s grip on the Senate this fall are in trouble, according to a new Quinnipiac poll released Thursday.
The poll contained disappointing numbers for Susan Collins of Maine, Lindsey Graham of South Carolina and Senate Majority Leader Mitch McConnell of Kentucky.
Poor showings by the three in November could help hand the Senate back to Democrats, who lost their majority there in 2014.
Collins, who is seeking a fifth term, is trailing her opponent, Maine House Speaker Sara Gideon, by 47% to 43% with 6% undecided.
The poll showed Graham, who is seeking a fourth term, tied with Jaime Harrison, a Black lawyer and associate chairman of the Democratic National Committee, at 44% apiece.
McConnell was clinging to a 5 percentage point lead over Amy McGrath, the first female Marine to fly a combat mission. In his last election, McConnell cruised to victory with a 16-point margin.
These results will induce “high anxiety for the GOP,” said Quinnipiac University polling analyst Tim Malloy. “Three GOP Senators who easily won their last reelection bids are looking over their shoulders less than three months from Election Day.”
Real Clear Politics currently gives Republicans a 46- to 45-seat advantage in the Senate with 9 toss-up states, including Maine and South Carolina. It rates Kentucky as “likely” Republican, though, and the poll suggests that McGrath has now moved well within striking distance.
Polling in Kentucky this year has been confusing. A Morning Consult poll released earlier this week showed McConnell up by a commanding 53% to 36%. But several other polls have suggested that McGrath is only a few percentage points behind.
The Quinnipiac survey suggests that McConnell is slightly less popular in Kentucky than Trump, running behind the president by about 3 percentage points, while McGrath is more popular than former Vice President Joe Biden by a similar margin.
In Maine, although Collins is a centrist who often disagrees with her party — she has sided with President Trump only two-thirds of the time — she became a lightning rod for Democrats because she cast a deciding vote to put Justice Brett Kavanaugh on the Supreme Court. Millions of dollars have flooded into her small state from all over the country in an effort to defeat her.
The Quinnipiac poll is the first to be released since Gideon won the Democratic primary on July 14.
In the poll, Collins was viewed favorably by only 42% of Mainers and unfavorably by 49%. Gideon was seen favorably by 40% and unfavorably by 35%.
One bright spot for Collins is that 23% of voters said they didn’t know enough about Gideon to form a favorable or unfavorable opinion, which means Collins still has an opportunity to define her opponent in a negative light.
Collins’ advertising has painted Gideon as risky and untested. Gideon has lived in Maine since 2004 and has been a state representative since 2012. By contrast, Collins has been in the Senate since 1997 and her family has operated a lumber business in Caribou, Maine since 1844.
In South Carolina, the Quinnipiac poll comes on the heels of several other polls showing Harrison within easy striking distance of Graham.
Harrison has raised $30 million for his campaign. As in Maine, much of the money has come from out-of-state as Democrats nationwide targeted a senator who backed Kavanaugh.
Also similar to Maine, the Democratic challenger is still unknown to many. Some 37% of Palmetto State voters said they don’t know enough about Harrison to form a favorable or unfavorable opinion.
And as in Kentucky, Trump is slightly more popular than the Republican senator. Graham has supported the president’s policies in office but famously called him a "race-baiting, xenophobic bigot" during the 2016 election.
In the presidential race, the poll shows Trump beating Biden by 9 points in Kentucky and 5 points in South Carolina, but losing by 15 points in Maine.
Those figures are a big contrast to 2016, when Trump won Kentucky by 30 points and South Carolina by 14, and lost Maine by only 3 points.


courthousenews--2020-08-06--Panel Asked to Reject Class Status in Suit Over Texas Chemical Plant Fire

NEW ORLEANS ( CN ) — Arguing before a Fifth Circuit panel Thursday , an attorney for a chemical manufacturer challenged the approval of class certification for 20,000 landowners within a 7-mile radius of the company ’ s Houston-area plant , which caught fire and exploded in the wake of Hurricane Harvey .
Arkema Inc. attorney Evan Mark Tager , who argued via teleconference before the three-judge panel , said that because the 2017 hurricane was a “ 2,000-year storm , ” the company could not have possibly anticipated its facility would experience a chemical spill and explode .
He @ @ @ @ @ @ @ been granted class-action status because their damages are too varied one plaintiff to the next .
According to the landowners ’ lawsuit filed in Houston federal court , officials from Arkema called Harris County Emergency Services in the early morning hours of Aug. 29 , 2017 , to request that Highway 90 be shut down due to a chemical release into floodwaters across the highway , after Hurricane Harvey made landfall and soaked Houston with a record amount of rain .
Arkema ’ s plant in the Houston suburb of Crosby produces liquid @ @ @ @ @ @ @ the production of resins , PVC , polyester-reinforced fiberglass and other products , according to its website .
By midday that day , National Guard troops were evacuating residents from a 1.5-mile exclusion zone around Arkema ’ s facility , according to the lawsuit .
Residents were not told there had been a chemical spill , only that the chemical plant would likely explode .
Between Aug. 31 and Sept. 3 , 2017 , a series of explosions did occur , culminating with “ the allegedly controlled ignition of six refrigerated trucks reportedly @ @ @ @ @ @ @ , ” which is highly flammable , the complaint states .
The explosions resulted in thick , rolling plumes of toxic smoke that mixed in the wind to form rain ash , dust and particulate matter that fell throughout the area , according to the lawsuit .
Testing revealed four families of toxins in ash , soil and dust samples taken from the plaintiffs ’ properties , all of which correlate to the toxins present in Arkema ’ s Luperox product line , the landowners claim .
U.S District Judge Keith Ellison noted @ @ @ @ @ @ @ certification that “ the costs of bringing an action like this are truly monumental.
” “ This case involves huge expert fees , complicated organization and planning , and numerous attorney hours .
The court finds that class resolution is a superior method of resolving this case , ” the Bill Clinton appointee wrote .
On Thursday , the plaintiffs ’ attorney Samuel Issacharoff pushed back on Arkema ’ s argument that it could not have foreseen the disaster .
“ Incidentally , there have been three 2,000-year flood events in Houston in @ @ @ @ @ @ @ told the Fifth Circuit panel .
“ So the question is , did [ Arkema ] do the right thing ?
” the attorney asked .
Issacharoff later reiterated his point , saying “ every other chemical plant in east Texas shut down in anticipation of this storm.
” Tager , arguing for Arkema , said the “ vast majority of samples taken ” from the plaintiffs ’ properties did not contain contaminants .
He also said the contaminants that were found on some properties are those that are “ ubiquitous in the @ @ @ @ @ @ @ court ignored this point .
U.S .
Circuit Judge Jennifer Walker Elrod , appointed by George W. Bush , asked Tager , “ Is your position only that this biased sampling method , as you called it , is that this case is fatally flawed ?
Or is it that any case is fatally flawed ?
” Tager ’ s reply seemed to imply part of the flaw is the invisibility of the chemicals spilled from Arkema ’ s plant .
He contrasted the situation with an oil spill litigated in the Fifth @ @ @ @ @ @ @ following Hurricane Katrina , “ where you have a visible substance like oil and it washes up on peoples ’ properties and you can see it.
” “ Classic pollution cases , ” said U.S .
Circuit Judge Catharina Haynes , also an appointee of George W. Bush .
“ Isn ’ t there a fear that Arkema can get away with anything if they can get away without class certification ?
” Haynes asked later .
“ Arkema has been here a long time , and they pride themselves on being a @ @ @ @ @ @ @ adding the company is quick to inspect when someone calls and says their property has been damaged .
Arkema , a subsidiary of a French chemical manufacturer , did not respond Thursday to an email request for comment .
Senior U.S .
Circuit Judge Patrick E. Higginbotham , an appointee of Ronald Reagan , also sat on the panel .
The judges did not indicate when or how they will decide on the matter .

Arguing before a Fifth Circuit panel Thursday, an attorney for a chemical manufacturer challenged the approval of class certification for 20,000 landowners within a 7-mile radius of the company’s Houston-area plant, which caught fire and exploded in the wake of Hurricane Harvey.
NEW ORLEANS (CN) — Arguing before a Fifth Circuit panel Thursday, an attorney for a chemical manufacturer challenged the approval of class certification for 20,000 landowners within a 7-mile radius of the company’s Houston-area plant, which caught fire and exploded in the wake of Hurricane Harvey.
Arkema Inc. attorney Evan Mark Tager, who argued via teleconference before the three-judge panel, said that because the 2017 hurricane was a “2,000-year storm,” the company could not have possibly anticipated its facility would experience a chemical spill and explode. He also said the plaintiffs should not have been granted class-action status because their damages are too varied one plaintiff to the next.
According to the landowners’ lawsuit filed in Houston federal court, officials from Arkema called Harris County Emergency Services in the early morning hours of Aug. 29, 2017, to request that Highway 90 be shut down due to a chemical release into floodwaters across the highway, after Hurricane Harvey made landfall and soaked Houston with a record amount of rain.
Arkema’s plant in the Houston suburb of Crosby produces liquid organic peroxides that are used primarily in the production of resins, PVC, polyester-reinforced fiberglass and other products, according to its website.
By midday that day, National Guard troops were evacuating residents from a 1.5-mile exclusion zone around Arkema’s facility, according to the lawsuit. Residents were not told there had been a chemical spill, only that the chemical plant would likely explode.
Between Aug. 31 and Sept. 3, 2017, a series of explosions did occur, culminating with “the allegedly controlled ignition of six refrigerated trucks reportedly containing plastic containers filled with organic peroxide,” which is highly flammable, the complaint states.
The explosions resulted in thick, rolling plumes of toxic smoke that mixed in the wind to form rain ash, dust and particulate matter that fell throughout the area, according to the lawsuit.
Testing revealed four families of toxins in ash, soil and dust samples taken from the plaintiffs’ properties, all of which correlate to the toxins present in Arkema’s Luperox product line, the landowners claim.
U.S District Judge Keith Ellison noted in his June 2019 order granting class certification that “the costs of bringing an action like this are truly monumental.”
“This case involves huge expert fees, complicated organization and planning, and numerous attorney hours. The court finds that class resolution is a superior method of resolving this case,” the Bill Clinton appointee wrote.
On Thursday, the plaintiffs’ attorney Samuel Issacharoff pushed back on Arkema’s argument that it could not have foreseen the disaster.
“Incidentally, there have been three 2,000-year flood events in Houston in the last three years,” Issacharoff told the Fifth Circuit panel.
“So the question is, did [Arkema] do the right thing?” the attorney asked.
Issacharoff later reiterated his point, saying “every other chemical plant in east Texas shut down in anticipation of this storm.”
Tager, arguing for Arkema, said the “vast majority of samples taken” from the plaintiffs’ properties did not contain contaminants. He also said the contaminants that were found on some properties are those that are “ubiquitous in the area,” and argued the district court ignored this point.
U.S. Circuit Judge Jennifer Walker Elrod, appointed by George W. Bush, asked Tager, “Is your position only that this biased sampling method, as you called it, is that this case is fatally flawed? Or is it that any case is fatally flawed?”
Tager’s reply seemed to imply part of the flaw is the invisibility of the chemicals spilled from Arkema’s plant. He contrasted the situation with an oil spill litigated in the Fifth Circuit, from Murphy Oil in Louisiana following Hurricane Katrina, “where you have a visible substance like oil and it washes up on peoples’ properties and you can see it.”
“Classic pollution cases,” said U.S. Circuit Judge Catharina Haynes, also an appointee of George W. Bush.
“Isn’t there a fear that Arkema can get away with anything if they can get away without class certification?” Haynes asked later.
“Arkema has been here a long time, and they pride themselves on being a good neighbor,” Tager replied, adding the company is quick to inspect when someone calls and says their property has been damaged.
Arkema, a subsidiary of a French chemical manufacturer, did not respond Thursday to an email request for comment.
Senior U.S. Circuit Judge Patrick E. Higginbotham, an appointee of Ronald Reagan, also sat on the panel. The judges did not indicate when or how they will decide on the matter.