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HHEG Helps Win At the Court of Appeals in Class-Action Prison COVID Suit Against Governor Polis

The Colorado Court of Appeals revived our team’s lawsuit against Governor Polis over deadly COVID-19 conditions in Colorado prisons.


The Court held that the Governor has a clear duty to act to protect people during times of emergency, like the COVID-19 crisis. As cooperating counsel with the ACLU and other local civil rights attorneys, we alleged that Gov. Polis failed to use his powers to protect medically vulnerable people in prison from COVID-19.


Throughout the pandemic, people in prison have been unable to social distance because of systemic overcrowding, leading to some of the biggest COVID-19 outbreaks in the state and causing the unnecessary deaths of 29 people. But, instead of using his broad emergency powers to reduce the prison population and ease the ongoing suffering in Colorado’s prisons, Gov. Polis chose to use far too little of his power to protect people in prison from this lethal virus.


During the peak of the third wave of the virus, the Denver District Court surprisingly dismissed our lawsuit against the Governor, stating that Courts lack the power to review the Governor’s actions.  In its decision, the Court of Appeals severely criticized the district court for failing to meaningfully scrutinize whether the government violated our clients’ basic liberties and completely rejected the lower court’s dismissal decision and its reasoning.


The Court of Appeals strongly vindicated the bedrock principle of judicial review, a foundational pillar of our democracy. This decision declares that in the United States of America, Governors are not kings, with unchecked power and blank checks to do what they want.


Further, for the first time in our state, the Court of Appeals recognized a “deliberate indifference” standard under the Colorado Constitution. It held that the government is required to provide a certain level of sufficient medical care to incarcerated people. Failing to do so is a form of cruel and unusual punishment. As a result of the Court’s recognition of this standard, people in prison now have an additional state constitutional pathway to seek redress when they are denied adequate medical care while incarcerated.


Unfortunately, this win does not undo the intense suffering that prisoners experienced because of overcrowding during the height of the pandemic. As Anna Holland Edwards commented in one of the attached articles: “There’s a lot of suffering in those six months that could have been prevented by the trial court.” However, this decision is an important step forward in vindicating the rights of people who are among the most vulnerable to this deadly virus, as well as holding the Governor accountable for his constitutional violations.


The Colorado Trial Lawyers Association selected this case as a finalist for its “Case of the Year” award. You can watch the video here.


You can also read the Court of Appeals’ opinion here. Additional press can be found here and here.