                   Cite as: 591 U. S. ____ (2020)               1

                     SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
                           _________________

                            No. 20A19
                           _________________


            DON BARNES, SHERIFF, ORANGE
             COUNTY, CALIFORNIA, ET AL. v.
               MELISSA AHLMAN, ET AL.
                  ON APPLICATION FOR STAY
                         [August 5, 2020]

   The application for stay presented to JUSTICE KAGAN and
by her referred to the Court is granted, and the district
court’s May 26, 2020 order granting a preliminary injunc-
tion is stayed pending disposition of the appeal in the
United States Court of Appeals for the Ninth Circuit and
disposition of the petition for a writ of certiorari, if such writ
is timely sought. Should the petition for a writ of certiorari
be denied, this stay shall terminate automatically. In the
event the petition for a writ of certiorari is granted, the stay
shall terminate upon the sending down of the judgment of
this Court.
   JUSTICE BREYER and JUSTICE KAGAN would deny the ap-
plication.
   JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting from the grant of stay.
   Today, this Court steps in to stay a preliminary injunc-
tion requiring Sheriff Don Barnes and Orange County (col-
lectively, the Orange County Jail, or Jail) to implement cer-
tain safety measures to protect their inmates during the
unprecedented COVID–19 pandemic. The injunction’s re-
quirements are not remarkable. In fact, the Jail initially
claimed that it had already implemented each and every
one of them. Yet, apparently disregarding the District
2                   BARNES v. AHLMAN

                   SOTOMAYOR, J., dissenting

Court’s detailed factual findings, its application of estab-
lished law, and the fact that the Court of Appeals for the
Ninth Circuit has twice denied a stay pending its review of
the District Court’s order, this Court again intervenes to
grant a stay before the Circuit below has heard and decided
the case on the merits. See Little v. Reclaim Idaho, ante; at
1, and n. 1 (SOTOMAYOR, J., dissenting from grant of stay)
(noting the frequency with which the Court has begun
granting such stays). The Jail’s application does not war-
rant such extraordinary intervention. Indeed, this Court
stays the District Court’s preliminary injunction even
though the Jail recently reported 15 new cases of COVID–
19 in a single week (even with the injunction in place), even
though the Jail misrepresented under oath to the District
Court the measures it was taking to combat the virus’
spread, and even though the Jail’s central rationale for a
stay (that the injunction goes beyond federal guidelines) ig-
nores the lower courts’ conclusion that the Jail’s measures
fell “well short” of the Centers for Disease Control and Pre-
vention (CDC) Guidelines. 2020 WL 3547960, *4 (CA9,
June 17, 2020).
                               I
   The Orange County Jail currently houses a population of
over 3,000 pretrial detainees and inmates. At the time of
the District Court’s injunction, the Jail had witnessed an
increase of more than 300 confirmed COVID–19 cases in a
little over a month. The Jail, moreover, was well aware of
the risk that the virus could spread rapidly through its con-
gregate population and that addressing that risk would re-
quire certain precautionary measures. The District Court
found that several organizations, including a group of Or-
ange County Sheriff deputies, had “repeatedly warned . . .
of the dangers from COVID–19 in the Jail.” ___ F. Supp. 3d
___, ___, 2020 WL 2754938, *12 (CD Cal., May 26, 2020).
Indeed, the Jail claims that it sprang into action as soon as
                   Cite as: 591 U. S. ____ (2020)              3

                    SOTOMAYOR, J., dissenting

the Jail’s first documented case of COVID–19 appeared in
March of 2020, collaborating closely with local health offi-
cials on preventative measures to contain the virus’ spread.
When respondents brought suit, seeking an injunction that
would require the Jail to implement a number of safety
measures to protect inmates against the virus, the Jail told
the District Court that such relief was not needed because
it had, “at a minimum, already implemented all of the mit-
igation efforts” requested. Decl. of Joseph Balicki in No. 8:
20–cv–00835, Doc. 44–10, ¶ 2 (CD Cal., May 12, 2020)
(Balicki Decl.); see also id., ¶ 9 (“There is not a single ‘miti-
gation effort’ outlined in Plaintiffs’ Complaint that has not
already been implemented in the jails”). The Jail claimed
that it had already achieved proper social distancing, pro-
vided inmates enough soap for frequent handwashing, and
isolated and tested all symptomatic individuals.
   Dozens of inmate declarations told a different story. Alt-
hough the Jail had been warned that “social distancing is
the cornerstone of reducing transmission of COVID–19,”
Exh. B to Balicki Decl., Doc. 44–12, inmates described being
transported back and forth to the jail in crammed buses,
socializing in dayrooms with no space to distance physi-
cally, lining up next to each other to wait for the phone,
sleeping in bunk beds two to three feet apart, and even be-
ing ordered to stand closer than six feet apart when inmates
tried to socially distance. Moreover, although the Jail told
its inmates that they could “best protect” themselves by
washing their hands with “soap and water throughout the
day,” Exh. C to Balicki Decl., Doc. 44–13, numerous in-
mates reported receiving just one small, hotel-sized bar of
soap per week. And after symptomatic inmates were re-
moved from their units, other inmates were ordered to dis-
pose of their belongings without gloves or other protective
equipment. Finally, despite the Jail’s stated policy to test
and isolate individuals who reported or exhibited symptoms
4                    BARNES v. AHLMAN

                    SOTOMAYOR, J., dissenting

consistent with COVID–19, multiple symptomatic detain-
ees described being denied tests, and others recounted shar-
ing common spaces with infected or symptomatic inmates.
                                II
   Based on detailed factual findings, which the Ninth Cir-
cuit credited, the District Court concluded that the risk of
harm in the Jail was “undeniably high.” ___ F. Supp. 3d, at
___, 2020 WL 2754938, *10. The court further determined
that while the Jail may have formally adopted a policy to
mitigate that risk, its actual compliance was “piecemeal
and inadequate.” Ibid. On this evidence, the District Court
held that respondents were likely to succeed in showing
that the Jail was deliberately indifferent to the health and
safety of its inmates and that it had violated federal disa-
bility rights law. In response, the court imposed a prelimi-
nary injunction that closely followed the CDC Guidelines
for correctional and detention facilities.
   This Court now stays that injunction, even though this
case presents none of the typical indicia warranting certio-
rari. See Maryland v. King, 567 U. S. 1301, 1301 (2012)
(ROBERTS, C. J., in chambers) (an applicant for a stay “must
demonstrate (1) ‘a reasonable probability’ that this Court
will grant certiorari, (2) ‘a fair prospect’ that the Court will
then reverse the decision below, and (3) ‘a likelihood that
irreparable harm [will] result from the denial of a stay’ ”
(quoting Conkright v. Frommert, 556 U. S. 1401, 1402
(2009) (GINSBURG, J., in chambers))). The District Court
and Ninth Circuit applied well-established law to the par-
ticular facts of this case to conclude that the Jail knew of
and disregarded an “excessive risk to inmate health or
safety.” Farmer v. Brennan, 511 U. S. 825, 837 (1994).
That conclusion is not clearly wrong. The Jail argues that,
because it voluntarily released 53 percent of its population,
it necessarily could not have been deliberately indifferent
to the needs of its inmates. But the release of even a large
                     Cite as: 591 U. S. ____ (2020)                   5

                      SOTOMAYOR, J., dissenting

number of inmates does not absolve the Jail of its responsi-
bility for the health and safety of the roughly 3,000 individ-
uals left behind. And while the Jail claims that it largely
implemented the CDC Guidelines and radically increased
hygiene and cleaning within its walls, the District Court,
whose factual findings are owed deference, found the reality
to be very different.1 The District Court concluded that by
demonstrating the Jail’s failure to implement basic safety
measures of which it was well aware, respondents had es-
tablished a likelihood of success on their claim that the Jail
had been deliberately indifferent to the serious risk
COVID–19 posed to the health of its inmates.
  Even if this Court disagrees with the District Court’s con-
clusion, “error correction . . . is outside the mainstream of
the Court’s functions and . . . not among the ‘compelling
reasons’ . . . that govern the grant of certiorari.” S. Shapiro,
K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Su-
preme Court Practice §5.12(c)(3), p. 5–45 (11th ed. 2019);
see also Farmer, 511 U. S., at 842 (noting that deliberate
indifference is a “question of fact subject to demonstration
in the usual ways, including inference from circumstantial
evidence”). That is especially true where, as here, the Jail
fails to contest an entirely independent and sufficient
ground for the District Court’s injunction: respondents’
claims under federal disability rights law.
  The Jail nonetheless argues that the Ninth Circuit cre-
ated a certworthy circuit split because, in the Jail’s view, it
endorsed a preliminary injunction that went beyond the
CDC Guidelines. But no circuit split exists. Like other Cir-
cuits, the Ninth Circuit considered the Jail’s request for a
stay by applying established law to the facts and equities
before it. Its decision turned on the conclusion that, in prac-


——————
  1 Notably, the Jail has since resisted respondents’ attempts to verify

the Jail’s compliance with the District Court’s preliminary injunction.
6                        BARNES v. AHLMAN

                       SOTOMAYOR, J., dissenting

tice, the Jail’s measures fell “well short” of the CDC Guide-
lines, not on whether the District Court’s injunction ex-
ceeded them. Indeed, in a case presenting different facts
and equities, the Ninth Circuit recently stayed an injunc-
tion to the extent it exceeded the CDC Guidelines. See Ro-
man v. Wolf, 2020 WL 2188048, *1 (CA9, May 5, 2020).
Moreover, the Jail’s claim that “most of ” the injunction’s
requirements exceed the CDC Guidelines is greatly exag-
gerated. Application for Stay 10. The Jail points to just two
alleged discrepancies: first, that the District Court ordered
the Jail to provide adequate spacing of six feet or more be-
tween incarcerated people, whereas the CDC Guidelines
suggest only that six feet of space is “ ‘ideal[ ]’ ”; and second,
that the injunction requires daily temperature checks and
screening questions. Id., at 10–11. As to the former, the
CDC Guidelines acknowledge that social distancing can be
difficult in a correctional facility, but the Jail has not ar-
gued that its physical layout does not permit it.2 And as to
the latter, as the Jail itself admits, the Guidelines provide
for daily temperature checks in housing units where
COVID–19 has been identified. Indeed, updated CDC
Guidelines now recommend daily symptom and tempera-
ture screening in any correctional facility with a reported
case.
   The Jail also faces an uphill battle in its claim of irrepa-
rable harm. The measures it now decries as vexatious judi-
cial micromanagement are the same measures that just
months ago it claimed were, “at a minimum,” already being
implemented. If the Jail is already doing everything re-
quired by the injunction, then what irreparable harm does
——————
   2 Moreover, the injunction directs the Jail to “provide adequate spacing

of six feet or more between incarcerated people so that social distancing
can be accomplished in accordance with CDC guidelines,” ___ F. Supp.
3d ___, ___, 2020 WL 2754938, *14 (CD Cal., May 26, 2020), and there-
fore arguably requires the Jail to implement social distancing only to the
extent required by the Guidelines.
                     Cite as: 591 U. S. ____ (2020)                     7

                       SOTOMAYOR, J., dissenting

the injunction pose? And if it is not, and the Jail misrepre-
sented its actions under oath to the District Court, then
why should the Jail benefit from this Court’s equitable dis-
cretion? See Trump v. International Refugee Assistance
Project, 582 U. S. ___, ___ (2017) (per curiam) (slip op., at
10) (“In assessing the lower courts’ exercise of equitable dis-
cretion, we bring to bear an equitable judgment of our
own”). This Court normally does not reward bad behavior,
and certainly not with extraordinary equitable relief.3 And
while “[c]ourts must be sensitive to the . . . need for defer-
ence to experienced and expert prison administrators,” they
“may not allow constitutional violations to continue simply
because a remedy would involve intrusion into the realm of
prison administration.” Brown v. Plata, 563 U. S. 493, 511
(2011).
                          *     *    *
    At the time of the injunction, there were nearly 3,000 in-
mates still in the Jail’s care, 488 of whom were medically
vulnerable to COVID–19. “[H]aving stripped them of virtu-
ally every means of self-protection and foreclosed their ac-
cess to outside aid, the government and its officials” must
“ ‘take reasonable measures to guarantee the[ir] safety.’ ”
Farmer, 511 U. S., at 832–833; see also Valentine v. Collier,
590 U. S. ___, ___–___ (2020) (statement of SOTOMAYOR, J.)
(slip op., at 6–7) (“It has long been said that a society’s
worth can be judged by taking stock of its prisons. That is
all the truer in this pandemic, where inmates everywhere
——————
  3 Given the nature of the “rare and exceptional” relief the Jail seeks,

Fargo Women’s Health Organization v. Schafer, 507 U. S. 1013, 1014
(1993) (O’CONNOR, J., concurring in denial of application), this Court has
an independent obligation to weigh the equities. The Jail’s misrepresen-
tations to the District Court are one factor to consider. Another is that
on the very same day it asked this Court to intervene in its pending ap-
pellate proceedings, the Jail requested from the Ninth Circuit a 1-month
extension to file its opening brief. One might wonder, then, whether the
Jail’s need for relief is quite as urgent as the Jail makes out.
8                    BARNES v. AHLMAN

                   SOTOMAYOR, J., dissenting

have been rendered vulnerable and often powerless to pro-
tect themselves from harm”). The District Court found
that, despite knowing the severe threat posed by COVID–
19 and contrary to its own apparent policies, the Jail ex-
posed its inmates to significant risks from a highly conta-
gious and potentially deadly disease. Yet this Court now
intervenes, leaving to its own devices a jail that has misrep-
resented its actions to the District Court and failed to safe-
guard the health of the inmates in its care. I respectfully
dissent.
