NIJO Case Brief: Barnes v. Ahlman , 591 U. S. ____ (2020)

By Tate McCotter, NIJO Executive Director


Case Title and Date:

Barnes v. Ahlman , 591 U. S. ____ (2020), No. 20A19; Application for emergency stay to the United States Supreme Court; Decided August 5, 2020.


The administration and operations of Orange County Jail is overseen by Sheriff Don Barnes (Defendant, et al.).  The introduction of COVID-19 in communities across the United States required authorities who manage correctional facilities to implement strategies to mitigate exposure risk for their populations. Under exigent circumstances and considering the rapidly changing information about the virus and how its spread should be effectively prevented and contained, Orange County Jail voluntarily released 53% of its 3000 average inmate population to permit increased social distancing and enacted corrections-specific CDC guidelines.  However, with the urging from inmate advocacy groups after positive cases appeared in the jail, the ACLU (Plaintiff, et al.) filed a lawsuit against the sheriff and county1 alleging health precautions for inmates weren’t being adequately implemented and subsequently filed for a court ordered mandatory injunction.

The Complaint alleges five causes of action: (1) Unconstitutional Conditions of Confinement in Violation of the Fourteenth Amendment to the U.S. Constitution; (2) Unconstitutional Punishment in Violation of the Fourteenth Amendment to the U.S. Constitution; (3) Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the U.S. Constitution; (4) Discrimination on the Basis of Disability in Violation of Title II of the ADA; and (5) Discrimination on the Basis of Disability in Violation of Section 504 of the Rehabilitation Act.  (Id.) The demands included requiring the jail to provide adequate spacing of six feet or more between incarcerated individuals, conduct daily temperature checks and screening questions, provide daily showers and access to clean laundry including personal towels and wash rags after each shower, and waive all medical co-pays for those experiencing COVID-19-related symptoms.2

Procedural Posture:

On May 26, 2020, the District Court issued a mandatory injunction against the Sheriff and County.3  The Defendants appealed to the United States Court of Appeals for the Ninth Circuit and Requested an Emergency Stay on May 28, 2020.  On June 12, 2020, the Ninth Circuit denied the stay but sua sponte issued an immediate remand of the matter to the District Court for consideration of further evidence regarding dissolving or modifying the injunction.  On June 17, 2020, the Ninth Circuit Court issued a written decision in dissent and remanded back to the District Court, advising “because the injunction was unwarranted on May 26, and conditions have improved even more significantly, the District Court will hopefully take advantage of this opportunity for a redo and lift the injunction.”4


Whether latitude should be given to local officials entrusted with protecting the health and safety of its citizens during a pandemic to make critical decisions to manage the virus.


The controlling rule to grant a stay of an injunction pending appeal is based on Nken v. Holder,5 which provides the Court should consider: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”  A district court abuses its discretion when it “base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.”6


The Supreme Court stayed the May 26, 2020 Order granting a preliminary injunction  pending disposition of the appeal it made to the Ninth Circuit United States Court of Appeals and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically.

Concurrence and Dissent:

In a 5-4 vote, the majority opinion decision was not explained; however, Justice Sotomayor wrote an eight-page dissent, joined by Justice Ginsburg.

NIJO Analysis:

COVID-19 is not quickly departing as a pressing health concern.  The issue here will arise repeatedly in the lower courts during the course of this pandemic, which affects every custodial institution in the United States.  In the meantime, courts in the conflicting circuits that have taken a position will continue to reach opposite conclusions on similar facts.   Exigent circumstances keep being extended and no “one-size-fits-all” manual, legally or operationally, exists for agencies to manage a long-term crisis.  Without clear precedent or legalized rules of engagement, correctional administrators are placed in a uniquely difficult position.  Variances in facility design, available community resources, differences in local COVID-19 cases and trends, limited budgets and serious staffing issues necessitate situational leadership and management. But what is the framework to follow?

Led by Chief Justice John G. Roberts Jr., the high court has issued a series of recent rulings that have told federal judges to defer to state and local officials involving elections, church gatherings and prisons. Roberts stated the following:

“Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” 7

Those officials “undertake to act in areas fraught with medical and scientific “must be especially broad.” 8

Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable” to the people.” 9,10

When measured against the majority of other Circuits under the Eighth and Fourteenth Amendments to the United States Constitution, the prevailing majority opinion again emphasizes and affords officials administrative discretion to make decisions and rely on professional expertise and knowledge, especially during a crisis.  It has never been nor should be a constitutional standard if a Sheriff’s response to a heretofore unknown pandemic will subject him to vexatious judicial micromanagement by injunction due to objective and subjective deliberate indifference to the well-being of inmates.  This is particularly true when administrators have implemented to the extent possible recommended CDC Guidelines,11 which are continually updated and evolving.  ACLU, Southern Poverty Law Center, state Disability Law Centers, and other inmate advocates filing lawsuits and injunctions requiring facilities be subject to self-determined requirements which exceed CDC guidelines suggests those organizations feel they possess a much greater understanding of how to manage COVID-19 than CDC officials or jail administrators.  Arguably, would these overreaching demands be acceptable or even considered realistic to implement in schools, nursing homes or hospitals?

During a national crisis it would be appropriate to question whether these injunctions and lawsuits are being driven to seize on “pandemic opportunities” to further promote and advance organizational agendas.  At the outbreak of the pandemic in the United States, correctional facilities were criticized and openly challenged in courts for their responses to COVID-19 by outside organizations, many without even having experienced a single positive case.12  How such agencies have the legal standing to represent the concerns of “individuals” and file petitions for extraordinary relief and demand immediate action when there are no named plaintiffs and no alleged wrongdoings outside of the “potential” to harm is quite alarming.  In this case, Ahlman (plaintiff) said she feared contracting the virus and passing it on to her infant when she pumps milk during her incarceration. She claimed waiting in “crowded areas” with sick inmates to give the milk to nurses put her at risk, claiming “I wonder what will happen if I get sick and it spreads to my baby through my milk.  And I worry that I will get sick in here and not be able to come home to her.”13

In some instances, sheriffs were named defendants who didn’t even operate jails14 , exposing blatant minimum investigation and time conducted by agenda-driven organizations who primarily relied on numberless open record requests placed upon officials, which tied up already limited staff resources and became an unnecessary distraction while in the midst of a crisis.  Certainly there are significant and dangerous outbreaks in some custodial institutions in this country, but the vast majority of facilities are currently operating and managing COVID-19 at levels which many communities would be envious to reach, especially considering the limited resources available to them.

In her dissenting opinion, Justice Sotomayor argued inmates had filed statements contradicting the claims of county jailers that CDC guidelines were being closely followed.15  Following that logic leads one to falsely conclude every grievance filed by an inmate is factually substantiated and justified.  The role of a grievance officer is to determine the legitimacy of grievances and address them accordingly. The grievance process itself serves as a means of receiving, processing, and resolving inmate complaints which include those involving policies, procedures, practices, regulations, conditions, and staff conduct.  Emergency grievances provide inmates an expedited process to grieve issues such as COVID-19 and resolve matters more efficiently without litigation.16  Bypassing the grievance system dangerously violates the Prison Litigation Reform Act, which requires inmates to exhaust all administrative remedies before they can file suit for alleged violations of federally protected inmate rights.17

Justice Sotomayor opined  “This court normally does not reward bad behavior, and certainly not with extraordinary equitable relief…  Despite knowing the severe threat posed by COVID–19 and contrary to its own apparent policies, the jail exposed its inmates to significant risks from a highly contagious and potentially deadly disease.”18  In this case, the Sheriff had implemented COVID-19 protocols which met CDC Interim Guidelines, had increased sanitation efforts, promoted inmate hygiene and had voluntarily and, at the time of the lawsuit, had proactively decreased his population over 45%, from 5303 on March 7 to 2,911, reflecting 39% occupant capacity for the 7400 bed jail.19

Returning to emphasize Justice Roberts point, the unelected federal judiciary, as well as agenda-driven inmate advocate organizations, lack the background, competence, and expertise to assess public health as well as comprehend and make decisions regarding the administration and operations of correctional facilities.  Examples of unintended consequences of interventions which stepped on administrative discretion include an entire pod of inmates swallowing hand sanitizer the first day it was issued to get to the alcohol and numerous inmates using masks as a suicidal implement or to create a weapon or other contraband.

It is understandable that administrators are frustrated.  The issues associated with the pandemic continue to mount and turn into a long-term headache.  Jails face issues trying to keep social distancing with limited space while state facilities (DOC and mental) are limiting their own intake, creating a backlog of inmates waiting to be transferred.  Getting unbudgeted PPEs, testing and other supplies can be extremely difficult and costly.  Staffing levels were already dangerously low and now further exacerbated by COVID-19 necessities to quarantine officers who are exposed and test positive.  Medical staff are worn out and facing the same challenges.  Budgets have been cut with the economic challenges caused by tax shortfalls.  And most recently, scrutiny on law enforcement has created serious divisions and issues externally and internally.

There are no easy answers.  Likewise, there is no manual provided to administrators to rely upon which is agreeable to everyone.  Despite the challenges, the corrections profession is resilient, and a crisis can often bring out the best in organizations and individuals.  Good faith, proactive efforts led by line level staff, medical personnel, mid-level supervisors and administrators reflect the commitment and professionalism to run constitutionally safe jails with an incredible degree of humanity and concern for those who are incarcerated.  Our profession has responded with resolve and at great personal sacrifice as first responders.  For this, they should be commended and supported and at minimum, given deference, not attacked for “what if” scenarios or less than perfect outcomes visualized by hindsight arm-chair quarterbacks.  To those that serve selflessly every day and every shift, constantly on guard and on call, we thank you for your dedication, courage, and example during this strenuous and difficult time in history.  Our prayers are with you.



  1. Barnes v. Ahlman, Case No.  SACV 20‐835 JGB (SHKx) (CD Cal., 2020)
  2. ___ F. Supp. 3d ___, ___, 2020 WL 2754938, *14 (May 26, 2020)
  3. Barnes v. Ahlman, Case No.  SACV 20‐835 JGB (SHKx) (CD Cal., 2020)
  4. Barnes v. Ahlman, 2020 WL 3547960, *4 (CA9, June 17, 2020)
  5. Nken v. Holder, 556 U.S. 418, 426 (2009)
  6. Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (CA9, 2014)
  7. Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905)
  8. Marshall v. United States, 414 U.S. 417, 427 (1974)
  9. Bay United Pentecostal Church v. Newsom, No. 19A1044, 2020 WL 2813056, at *1
  10. S., Roberts, C.J., in chambers, May 29, 2020
  11. Interim Guidance on Management of Coronavirus Disease 2019 (COVID‐19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention (March 23, 2020)‐ncov/community/correction‐ detention/guidance‐correctional‐detention.html
  12. Miller, Jessica.  (April 30, 2020).  Salt Lake Tribune.  Utah Supreme Court asked to order officials to let out more inmates in response to coronavirus.
  13. CBSLA. (April 30, 2020).  SoCal ACLU Sues Orange County Sheriff to Reduce Inmate Population During Coronavirus Pandemic.
  14. Miller, Jessica.  (May 22, 2020).  Salt Lake Tribune.  Utah Supreme Court dismisses ACLU’s coronavirus lawsuit targeted at county jails.
  15. Barnes v. Ahlman , 591 U. S. ____ (2020) (Sotomayor dissenting opinion, p. 3)
  16. NIJO Legal-Based Jail Guideline D05.02.04
  17. 42 USC §1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 93-35 (2006)
  18. Barnes v. Ahlman , 591 U. S. ____ (2020) (Sotomayor dissenting opinion, p. 7)
  19. CBSLA. (April 30, 2020).  SoCal ACLU Sues Orange County Sheriff to Reduce Inmate Population During Coronavirus Pandemic.


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