LULAC of Illinois, part of the largest and oldest Hispanic civil rights organization in the United States, wants to represent the voice of its members from McHenry County in a lawsuit that will determine whether private medical information about residents will be shared by the County public health department with law enforcement. LULAC told the Circuit Court of McHenry County in a filing earlier this week that the release of names and addresses of people who test positive for COVID-19 will undermine the basic precepts of public health, and have a dangerous and stigmatizing impact on members of the Hispanic community, discouraging many in McHenry County from seeking testing and treatment in the midst of the pandemic.  

The organization is seeking to intervene in two lawsuits filed by police agencies in McHenry County that demand the County’s public health officials turn over information about positive COVID tests.  

A judge earlier sided with the law enforcement agencies, and the McHenry County Health Department has asked the court to reconsider its ruling. LULAC opposes the release of personal medical information as violative of its members’ rights to keep their health information private, and as ultimately harmful – not helpful - to the health interests the first responders claim to advance. A brief submitted with LULAC’s filing calls this release of information “dangerous” and notes: “LULAC has worked to build trust between vulnerable immigrant communities and the Health Department in order to improve the health of the Latino community in McHenry County. The release of names and addresses of people by the Health Department to law enforcement is a breach of that trust.”  

LULAC is being represented in this action by lawyers from the ACLU of Illinois.  

LULAC fears that many of its members will avoid seeking health care, including testing for COVID, if they know their names and addresses will be turned over to law enforcement if they test positive. 

“Undocumented families and families with mixed immigration status – with U.S. citizens, legal residents and undocumented individuals all under the same roof – already live in fear a loved one being swept up by the Trump Administration and fast-tracked for deportation,” added Maggie Rivera of LULAC Illinois and a McHenry County resident. “This is exacerbated by the self-defeating efforts of McHenry police officers who want to create an ineffective list for misguided purposes.” 

The filing argues that the release of information about those who’ve tested positive for COVID-19 violates state and federal constitutional privacy protections as well as state public health laws.  

Public health officials oppose the sharing of this information as well – the Illinois Department of Public Health urges that first responders treat every member of the public as potentially infectious given the continued challenges with testing and the fact that many people are most contagious in the days before they suspect they may have the virus and can be tested.  Moreover, Centers for Disease Control and Prevention guidelines advise first responder dispatchers to pose questions to those seeking EMS services to assess specific risks associated with responding to that call.  

Information specific to each first response call provides much more protection than a list that likely contains the names of people who no longer are contagious and omits the names of many who are.  Public health experts also note that protecting the confidentiality of medical information is essential to ensuring that people access needed medical care for appropriate diagnosis and treatment.  

“Sharing personal medical information for those infected with the virus with law enforcement stands in stark contrast to good public health policy and effective public health practice” says Colleen K. Connell, executive director of the ACLU of Illinois. “The pathway out of this pandemic is not through shortcuts and simple solutions. We should respect the personal medical privacy of our neighbors and continue our support for policies that will encourage people to get tested and to help us stem the spread of the disease.”  

“Many of our members come from countries and backgrounds where being on a government list is an invitation for stigmatization and discrimination,” added Rivera of the LULAC. “Being in the United States was supposed to be the end of this sort of behavior, not a continuation. A global pandemic should be a time to put aside this self-defeating idea and seek the public health. Law enforcement in McHenry County needs to hear that message.” 

A Cook County court recently rejected a similar effort by first responders in that jurisdiction.  

A copy of the filing in McHenry County is available here.  
 

Joaquin Herrera-Herrera, a 60-year-old man detained by ICE on pending immigration proceedings since February, yesterday asked a federal court to release him from the Jerome Combs Detention Center (JCDC) in Kankakee because his age and underlying health conditions make him vulnerable to serious complications and death from COVID-19. Mr. Herrera-Herrera came to the United States at age six, and has resided in the Chicago area for almost his entire life. As a business owner, he placed and serviced vending machines in restaurants and medical offices for decades, providing for his three children and – before his detention – acting as caregiver for his grandson for more than six years. 

Mr. Herrera-Herrera has been diagnosed with hypertension and is a survivor of prostate cancer.  

“Every day that I have been held at Kankakee is another day I am afraid of being infected with COVID-19,” Mr. Herrera-Herrera said in a statement. “I know that my medical conditions make me more vulnerable to the virus. Even though I try to stay safe, it is impossible to feel safe while living in such close quarters at the detention center. If the virus comes into the jail, I could be fighting for my life.”

“Mr. Herrera-Herrera faces a high risk of severe illness and death from COVID-19 because of his underlying health conditions,” said Nusrat Jahan Choudhury, legal director at the ACLU of Illinois. “Two federal judges have already ordered the release of medically vulnerable ICE detainees from the Jerome Combs Detention Center because the facility presents an increased danger from the spread of COVID-19.  The detention of Mr. Herrera-Herrera in these conditions recklessly endangers his life in violation of basic principles of fairness and protection from cruel punishment. The court should release him immediately.”  

The complaint filed today references an expert study showing that once coronavirus enters a facility approximate the same size to JCDC, coronavirus will infect as many as 88% of the detainees in 30 days, and accelerate to infecting nearly all (99%) of detainees within 90 days.  

"For months, public health experts have warned that COVID-19 would spread rapidly within ICE detention facilities, with a devastating effect on the people detained, staff who work at the facilities, and their communities," said Eunice Cho, senior staff attorney at the ACLU's National Prison Project. 

"Last week, the first known death from COVID-19 in ICE custody was reported. Civil immigrant detention should not be a death sentence, but for our clients — who have underlying medical conditions and other risk factors — a COVID-19 infection likely would be. We urge the court to step in and take immediate action to mitigate the humanitarian crisis we're facing."

As described today, conditions at JCDC foster the spread of COVID-19.  Mr. Herrera-Herrera shares a small cell with another detainee. For much of his detention, he shared the cell with 3 other men, one of whom would have to step on Mr. Herrera-Herrera’s mattress to access a top bunk. 

In addition, detainees spend most of their days in a common area with more than 20 other men. Those detained spend the day gathered around five tables, each with eight stools that sit inches apart from one another. They share other equipment throughout the day – phones, chairs, books, and others – that are not sanitized after every use.  Even spending most of his day in his cells, Mr. Herrera-Herrera must touch some of these same surfaces on a regular basis.

Perhaps most important, Mr. Herrera-Herrera must stand in line several times a day to receive meals and medication with little distance between him and the other detainees.

“Mr. Herrera-Herrera is frightened,” added the ACLU’s Choudhury. “He is fearful that his pre-existing conditions will result in his becoming infected with dire, even deadly, consequences. We will urge the court to release him as soon as possible.”  

Today, another man was released from ICE custody following a Monday ruling by U.S District Court Judge Rebecca Pallmeyer that he was likely to succeed in showing that conditions in the McHenry County Jail placed him at risk of severe illness and death from COVID-19. The detainee is represented by the ACLU of Illinois, the American Civil Liberties Union, and Faegre Drinker Biddle and Reath LLP in litigation in federal district court in Chicago.
 
The lawsuit, Dembele v. Prim, was filed on behalf of two detainees of U.S. Immigration and Customs Enforcement (“ICE”) who suffer from medical conditions recognized to heighten the risk of severe complications and death from COVID-19. It sought release of these individuals because crowded and unsanitary conditions in the McHenry County Jail failed to protect them from the disease and to enable them to protect themselves in violation of due process. The other man in the lawsuit was released in April, days after the suit was filed.  
 
Reacting to the news of the release, Nusrat Jahan Choudhury, legal director for the ACLU of Illinois, issued the following statement:
 
“We are pleased the federal court recognized that our client was likely to succeed in showing that conditions in the McHenry County Jail placed him at risk of severe illness and death from COVID-19. Both of the people we represented in this lawsuit have been released. But detention facilities remain vectors of coronavirus, and many other medically vulnerable people remain in Illinois’ ICE facilities fearing they will be the next victim of COVID. We will continue to work for the release of others who face these terrifying conditions.”