Gilbert Polanco worked as a correctional officer at San Quentin State Prison. In June 2020, he was assigned a variety of duties related to the transfer of 122 inmates from a prison that was experiencing a major COVID-19 outbreak to San Quentin, where no cases had been reported. Prison officials did not provide personal protective equipment or take other measures to minimize the transmission of COVID-19 during and after this transfer. Mr. Polanco soon contracted COVID-19 and later died of complications of the illness. Mr. Polanco’s family sued prison officials in federal district court, alleging that the officials violated Mr. Polanco’s and his family members’ constitutional rights, and that the officials violated various other California and federal laws. After the district court denied the officials’ motion to dismiss the Polancos’ claims on the basis of qualified immunity, the officials filed an interlocutory appeal to the Ninth Circuit Court of Appeals.
Public Citizen filed an amicus brief in the Ninth Circuit, responding to the officials’ argument that the Public Readiness and Emergency Preparedness (PREP) Act, a statute enacted in 2005 to encourage the production and distribution of vaccines, created qualified immunity for claims against medical officials alleged to have failed to take appropriate infection control measures. As the brief explains that the PREP Act provides no basis for qualified immunity. Moreover, the PREP Act did not apply at all to the Polancos’ claims, which do not allege Mr. Polanco’s death was caused by the “administration to or use by an individual of a covered countermeasure,” as required by the statute.
In August 2023, the Ninth Circuit affirmed the district court’s denial of qualified immunity. The court found that the plaintiffs had adequately alleged the violation of a clearly established constitutional right and, in so doing, agreed with our argument that the PREP Act cannot be the source of qualified immunity.