Judge weighs options in Moose Lake prison case

The Minnesota Department of Corrections has implemented many well-intentioned policies aimed at preventing the spread of coronavirus within the walls of the Moose Lake Correctional Facility.

That much is agreed to by Dan Shulman, an American Civil Liberties Union attorney suing the agency on behalf of the prison's inmates .

But what remains at issue is how quickly officials acted in response to the pandemic, and whether their efforts are actually stopping additional inmates from contracting the deadly virus.

“The respondents know what should be done, and have even issued directives in that regard," Shulman told a judge at a hearing Tuesday in State District Court. "But the question is what is actually happening. There are indications they are not doing what they say they are doing.”

Shulman asked Judge Leslie Beiers to hold an evidentiary hearing examining the agency's response. He's seeking an order from the court directing officials to implement and enforce rigorous preventative measures such as social distancing, mask-wearing and more frequent testing, as well as granting some inmates early release.

DOC officials, however, have sought to have the case dismissed. They contend that the spread of the virus has already been contained due to successful implementation of many proactive measures .

As of Tuesday, only one inmate out of 941 on-site remained in quarantine status, according to Assistant Minnesota Attorney General Steven Forrest. About 80 inmates have been confirmed or presumed to have contracted the virus since March, when Moose Lake was the first prison in the state to report a case.

“The DOC is not going to argue that running a prison during a worldwide pandemic is easy, or that the DOC has done everything perfectly," said Forrest, who represents the agency and its officials.

“The DOC response is constantly evolving to current conditions," he added. "The response today is different today than it was in March.”

Shulman, while not disagreeing with the evolving approach, said it's clear an evidentiary hearing is necessary to settle basic factual disputes over how well the agency is currently managing the prison.

While the DOC has asserted that policies on masks, distancing and sanitization are strictly enforced, Shulman said inmates tell of a much more "lax" handling of those measures. He also cited claims that symptomatic staff members have reported to work and that quarantined inmates have been allowed to mingle with the general population — allegations denied by the prison.

Shulman said the scope of the outbreak to date isn't even clear, with the DOC conducting only 75 tests on inmates by May 1. He said an average of about two tests a day were carried out over the following month, before several hundred were conducted more recently.

“Why didn’t they do massive testing when they knew the virus was spreading?" Shulman asked. "Did they decide it was best to let the disease run its course through the facility before conducting mass testing?”

The DOC has said testing is conducted based on Minnesota Department of Health guidance and is just one component of its overall plan to keep inmates safe.

Forrest suggested the near-eradication of the virus from the facility supports that approach, decrying the ACLU's "Monday morning quarterbacking amid the most difficult pandemic of our lifetime."

“The petitioners have posited that COVID-19 would spread like wildfire at Moose Lake," he said. "The respondents have now shown that is not true.”

Shulman also argued that the DOC is failing to take steps to protect inmates who are most susceptible to the disease, including those who have underlying health conditions and/or are above 65. The petition, which seeks class-action status, contends that inmates meeting certain criteria should be granted early release.

But Forrest noted that the case has yet to be granted class-action certification, arguing the court must look at the claims only as they related to two inmates identified as plaintiffs in the petition. (A third named in the action was released from custody last month and is now identified by the DOC as a "wanted fugitive.")

“The only question is whether two guys are entitled to release from prison today because they are unlawfully detained," Forrest said, further noting that the law "does not provide a lawful remedy today to unlawful confinement yesterday.”

Beiers said she would hold off on considering class-action status until after she rules on the pending motions.

The judge previously determined the inmates had provided sufficient evidence to move forward with claims that the DOC is failing to meet its legal duty to keep them safe . With the agency having an opportunity to make its case, the judge must now consider whether any remedies should be ordered.

Beiers did not give a specific timeline for issuing a written ruling, but an evidentiary hearing, if granted, is tentatively scheduled over three days in early August.