Court affirms ‘safe and sanitary’ includes sleep, soap, toothbrushes, showers

A federal appeals court in San Francisco Thursday upheld a lower court order requiring that undocumented immigrant children being held in detention must be given soap, toothbrushes, showers and adequate sleeping accommodations.

A three-judge panel of the 9th U.S. Circuit rejected the U.S. Homeland Security Department’s appeal of a 2017 order by U.S. District Judge Dolly Gee of Los Angeles. The panel said that minimum necessities listed by Gee “reflect a commonsense understanding” of safe and sanitary conditions for children.

The case concerned a 1997 agreement known as the Flores settlement, in which the government agreed that undocumented immigrant children will be held in “facilities that are safe and sanitary.” After reviewing claims of substandard conditions, Gee in 2017 ruled that the agreement was violated when children had to sleep on concrete floors under an aluminum blanket in cold, noisy and constantly lighted facilities and when they were not given soap, showers and toothbrushes.

The government argued in its appeal that Gee illegally modified the Flores settlement by ordering those necessities because they were not specifically enumerated in the agreement.

In the appeals panel’s ruling, Circuit Judge Marsha Berzon wrote:

“We emphatically disagree.”

She was joined by Circuit Judges Wallace Tashima and William Fletcher.

The Flores agreement did specifically enumerate certain “safe and sanitary” conditions including access to food, drinking water, toilets, medical assistance and adequate temperature control.

The appeals panel said in addition to those requirements, assuring that children are not sleep-deprived and have soap, showers and toothbrushes is “without doubt essential to the children’s safety.”

The panel said:

“The district court properly construed the agreement as requiring such conditions rather than allowing the government to decide whether to provide them.”

An excerpt of a June 18 hearing before the panel in San Francisco became a viral video, in which the three judges were seen questioning a Justice Department lawyer about why having soap and a toothbrush and being able to sleep shouldn’t be considered basic necessities.