The AP reports that Sarah Fabian, DOJ counsel, argued to the 9th Circuit panel children in Border Patrol custody do not need to be given soap and toothbrushes to meet the standard of “safe and sanitary” during “shorter stays”. The three judges on the panel appeared to be incredulous upon hearing the Trump administration’s argument during a hearing in which the government denied violating a class action settlement alleging it provided poor conditions for immigrant children in detention facilities.
The standard of safe and sanitary came out of a settlement originating from Jenny Lisette Flores v. Edwin Meese. Flores set guidelines for the detention and treatment of minors taken into federal custody, according to Courthouse News. In 2017, US District Judge Dolly Gee ruled that the government had violated Flores and appointed an independent monitor to assure compliance. The 9th Circuit upheld much of her 2017 ruling. On Tuesday, the Trump administration asked the court to overturn the ruling because it added “new substantive requirements” not originally in Flores, such as providing toothbrushes and soap to detainees.
Fabian, on behalf of the Trump administration, argued that the Flores agreement did not list items that must be provided during detention. She argued that because the items are not enumerated, not providing them does not violate the agreement. “One has to assume it was left that way and not enumerated by the parties because either the parties couldn’t reach agreement on how to enumerate that or it was left to the agencies to determine,” Fabian said.
US Circuit Judge William Fletcher replied, “Or it was relatively obvious. And at least obvious enough so that if you’re putting people into a crowded room to sleep on a concrete floor with an aluminum-foil blanket on top of them that it doesn’t comply with the agreement.” He continued, “It wasn’t perfumed soap, it was soap. That’s part of ‘safe and sanitary.’”
US Circuit Judge Marsha Berzon asked Fabian, “You’re really going to stand up and tell us that being able to sleep isn’t a question of safe and sanitary conditions?’”
“Are you arguing seriously that you do not read the agreement as requiring you to do anything other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you’ve got an aluminum foil blanket?” Fletcher said. “I find that inconceivable that the government would say that that is safe and sanitary.”
Peter Schey, counsel for the litigants, gave dictionary definitions for the terms discussed and pointed out that general terms must be “reasonably interpreted” and that the “plain meaning” of the terms “safe” and “sanitary” must be honored. He said, “Today we have a situation where once a month a child is dying in [federal] custody. Certainly the Border Patrol facilities are secure, but they’re not safe and they’re not sanitary.”
Problems with the treatment of detained minors have existed since prior to Flores, but the Border Patrol is facing new scrutiny amidst Trump administration policies like family separation and zero tolerance being implemented. Since late last year, five children have died in Border Patrol custody, according to AP.
The panel did not indicate when they would rule on the matter.