Tuesday, July 7, 2020

Radon gas exposure in jail may violate Eighth Amendment

The Court of Appeals has ruled that class of prisoners in Connecticut may sue state officials for exposing them to radon gas, a carcinogen, and were deliberately indifferent to their safety.

The case is Vega v. Cruz, issued on June 29. Plaintiffs allege the prison, Garner Correctional Facility, was built in 1988-1992 on land with high radon levels without installing radon mitigation systems. This exposed plaintiffs to this dangerous gas, which can enter buildings through slight cracks in the foundation. Plaintiffs also claim the ventilation systems at the jail were always inadequate, and well water tests in 1996 demonstrated high levels of radon. Plaintiffs further allege that inmates were not properly tested for radon gas, and that their mitigation efforts later on were too little, too late. The district court declined to dismiss the lawsuit, ruling the defendants were not entitled to qualified immunity at this early stage of the case, as we must assume for QI purposes that all the facts in the complaint are the God's honest truth before we ask whether plaintiffs allege a violation of clearly-established law.

The Court of Appeals (Raggi, Cabranes and Korman [D.J.]) says the district court got it right on qualified immunity. The standard guiding prisoners' rights cases is "deliberate indifference to serious medical needs" under the Eighth Amendment. Did defendants violate clearly-established law in ignoring the radon threat? The Second Circuit holds that plaintiffs survive that (often difficult) hurdle because in 1993, the Supreme Court issued Helling v. McKinney, which held that prison officials can violate the Eighth Amendment in exposing inmates to health risks such as cigarette smoke. Under that rule, the district court in this case says, and the Court of Appeals agrees, that Helling means that prison officials may be sued for excessive exposure to radon, a toxic environmental substance.

Defendants claimed on appeal that Helling is distinguishable because that case involved cigarettes and this case involves radon. Not a frivolous argument, as courts are often receptive to qualified immunity defenses, which require the plaintiff to show that his case is substantially identical to a prior court ruling such that the defendants were on notice that they were in danger of violating constitutional rights. But the Court of Appeals thinks Helling is close enough to put prison officials on notice that they cannot knowingly ignore the damages posed by exposing inmates to radon gas. Cigarettes, radon, it's all poison. While no binding decision addresses this precise issue of radon gas exposure, the Supreme Court has said that even "novel" factual circumstances can violate clearly-established law.

Our current political environment has given rise to criticism of qualified immunity, which police officers often invoke successfully to avoid liability in misconduct cases. But this immunity applies to all government officials. Those of us who practice Section 1983 law know that QI is often the death-knell for these civil rights cases, the Supreme Court has not rejected a qualified immunity argument in years. But did you know this is the second case in several weeks to deny QI to prison officials? In June 2020, the Second Circuit held in McCray v. Lee, 2020 WL 3273346 (2d Cir. 2020), that prison officials could not invoke QI in denying the inmate an opportunity to exercise outside when no one at the jail felt like clearing the recreation areas of the ice and snow.

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