KETANJI BROWN JACKSON, United States District Judge

Sara Guccini Vanore, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

David Walker Bos, Federal Public Defender for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

KETANJI BROWN JACKSON, United States District Judge

Hartley James Lee has been indicted for unlawful possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g), and has been in pretrial detention since September 10, 2019. (See Order of Detention Pending Trial ("Detention Order"), ECF No. 8.) Lee has now filed an emergency motion for release from custody. (See Def.’s Emergency Mot. for Release from Custody Due To Immediate Threat Posed by COVID-19 Pandemic ("Def's Mot."), ECF No. 21-1; see also Gov't Opp'n to Def.’s Mot. ("Gov't Opp'n"), ECF No. 23; Def.’s Reply to Gov't Opp'n ("Def's Reply"), ECF No. 24.) Lee argues that, "[w]hen [he] was initially detained, circumstances were different" (Def.’s Mot. at 5), and that, now, "[t]he close contact and conditions of incarceration are unsafe in light of the [COVID-19] global pandemic ... [and] pose a substantial risk of serious illness and possible death" (id. at 2). Lee's motion further contends that, "[u]nder these unique circumstances, the Court must release Mr. Lee, at least until the resolution of this case." (Id. ; see also Def.’s Reply at 4.)

Notably, Lee did not appeal the initial determination of the Magistrate Judge that no condition of release could ensure the safety of the community under 18 U.S.C. § 3142(g) (see Detention Order at 3), nor does Lee's motion appear to seek reconsideration of the actual dangerousness decision that Magistrate Judge Meriweather made in this regard. Instead, the present motion suggests that new information that was not available at the time of the hearing—i.e. , the outbreak of COVID-19 and the heightened risk of contracting this coronavirus—casts a different light on the factors relevant to the earlier detention decision. Thus, Lee's emergency request for release is properly construed either as a motion to reopen Lee's detention hearing under 18 U.S.C. § 3142(f), in light of "information ... [that] was not known to the movant at the time of the hearing and that has a material bearing" on the propriety of pretrial detention, or as a motion under 18 U.S.C. § 3142(i) for temporary release to "the custody of a United States marshal or another appropriate person" when release is "necessary for preparation of the person's defense or for another compelling reason."

For the reasons explained below, this Court has concluded that (1) the new information on the COVID-19 pandemic does not materially bear on any of the detention factors set forth in 18 U.S.C § 3142(g) under the circumstances presented in this case, and (2) the generalized increased risk of harm to detainees does not yet warrant release of healthy individuals who would otherwise have been detained. Therefore, Lee's emergency motion for release will be DENIED WITHOUT PREJUDICE .

I.

The Metropolitan Police Department ("MPD") arrested Hartley James Lee, a 19-year-old man, on August 30, 2019. (See Arrest Warrant, ECF No. 2.) That same day, officers executed a search warrant on Lee's studio apartment and recovered a loaded firearm on the premises. (See Compl., ECF No. 1 at 2.) Leading up to his arrest, Lee had been openly displaying the seized firearm, as well as various other weapons and ammunitions, in videos and images posted on his public social media accounts. (See Gov't Mem. in Supp. of Pretrial Detention, ECF No. 4, Exs. B–C.) Moreover, at the time of his arrest, Lee had an open case in the Superior Court of the District of Columbia, for allegedly assaulting his partner with the butt of a gun, and he was on pretrial release for that charge. (See id. at 5.) Additionally, Lee was serving a three-year term of supervised probation with respect to a suspended sentence that had been imposed after Lee pled guilty to two firearm violations in Maryland. (See Compl. at 3.) According to the government, those state convictions resulted from an attempted robbery, during which Lee pointed a handgun at the owner of the car that Lee was trying to steal. (See Gov't Opp'n at 3–4.)

On September 6, 2020, a federal grand jury returned an indictment charging Lee with one count of unlawful possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). (See Indictment, ECF No. 6.) A detention hearing was held on September 10, 2019, at the conclusion of which Magistrate Judge Meriweather ordered that Lee be detained pending trial. (See Detention Order at 2.) In reference to the applicable factors under 18 U.S.C. § 3142(g), Magistrate Judge Meriweather persuasively explained how each factor weighed in favor of pretrial detention.

First, she concluded that "the nature and the circumstances of the offense charged[,]" id. § 3142(g)(1), counseled in favor of detention because Lee "allegedly unlawfully possessed a firearm while on supervised probation for two firearm convictions—one of which also involved 2nd degree assault—and while he was on pretrial supervision for domestic violence[.]" (Detention Order at 3.) Second, according to Magistrate Judge Meriweather, "the weight of the evidence" against Lee was strong and also favored detention, see 18 U.S.C. § 3142(g)(2), given that: a "[f]acial recognition software" identified Lee, who has very distinctive facial tattoos, as the individual holding a firearm in videos posted on social media; MPD seized a handgun in the residence that "looks similar" to the one from the social media posts (including "a laser attachment that emitted green light"); and Lee had "admitted to holding guns and using them in his video[.]" (Detention Order at 3.) Third, the Magistrate Judge found that Lee's "history and characteristics" also weighed in favor of pretrial detention, 18 U.S.C. § 3142(g)(3), because, "despite Mr. Lee's young age, he has two [firearm] convictions," for which he was on supervised probation, and had an open assault charge while brandishing a handgun. (Detention Order at 4.) Fourth, and finally, because "Lee's prior and pending assault cases" suggest that he "may act violently if released[,]" and given his "failure to comply with the conditions of his supervision" on the Maryland convictions, the Magistrate Judge concluded that he was not likely to "comply with release conditions set by this court, including the requirement not to illegally obtain a firearm again" (see id. at 4), and, therefore, the danger-to-the-community factor too, see 18 U.S.C. § 3142(g)(4), suggested that pretrial detention would be proper. Accordingly, Magistrate Judge Meriweather ordered Lee detained pending trial.

II.

The Bail Reform Act generally requires release of a defendant prior to trial unless a judicial officer determines, after a hearing, that "no condition or combination of conditions will reasonably assure the appearance of the person ... and the safety of any other person and the community[.]" 18 U.S.C. § 3142(e)(1). In determining whether any conditions of release will be sufficient, the Court must "take into account the available information" concerning four factors: "(1) the nature and circumstances of the offense charged, ...; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including ... the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and ...; (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g). As mentioned above, the determination that a criminal defendant must be detained pursuant to section 3142(g) "may be reopened" at any time prior to trial if new information surfaces that has a "material bearing on the issue [of] whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community." 18 U.S.C. § 3142(f). "New and material information ... consists of something other than a defendant's own evaluation of his character or the strength of the case against him"; instead, it must consist of "truly changed circumstances, something unexpected, or a significant event." United States v. Esposito , 354 F. Supp. 3d 354, 359 (S.D.N.Y. 2019) (internal quotation marks and citation omitted). Moreover, and significantly for present purposes, previously unavailable information has no material bearing on the factors that must be considered to establish the propriety of pretrial detention unless that new information casts different light on any of those factors. Cf. Black's Law Dictionary (11th ed. 2019) (defining "material" as "[h]aving some logical connection with the consequential facts" or "[o]f such a nature that knowledge of the item would affect a person's decision-making; significant; essential.").

By contrast, section 3142(i) provides a distinct mechanism for temporarily releasing a detained defendant, in a manner that has nothing to do with a revisiting of the initial detention determination. Under that provision, a judge is authorized to "permit the temporary release of the person" to "the custody of a United States marshal or another appropriate person," if the judge determines that such release is "necessary for preparation of the person's defense or for another compelling reason." 18 U.S.C. § 3142(i). It is clear beyond cavil that "[a] defendant has the burden of showing that temporary release is ‘necessary’ under Section 3142(i)." United States v. Stephens , No. 15-cr-95, 447 F.Supp.3d 63, 67 (S.D.N.Y. Mar. 19, 2020) (quoting United States v. Dupree , 833 F. Supp. 2d 241, 246 (E.D.N.Y. 2011) ) (alternation omitted). And, to date, it appears that most courts that have addressed a motion for temporary release under section 3142(i) have done so in the context of evaluating the necessity of release to permit the defendant to assist with preparing his defense. Thus, there is limited prior authority regarding whether and to what extent temporary release under section 3142(i) may be justified based on "another compelling reason," 18 U.S.C. § 3142(i), and the few courts that have ordered temporary release on the basis of such a condition have done so only "sparingly" and typically in order "to permit a defendant's release where, for example, he is suffering from a terminal illness or serious injuries[,]" United States v. Hamilton , No. 19-CR-54-01, 2020 WL 1323036, at *2 (E.D.N.Y. Mar. 20, 2020).

III.

This Court has no doubt that the new and highly contagious strain of coronavirus that is commonly known as COVID-19—which has now spread worldwide; has upended daily human functioning in myriad ways in the United States and elsewhere; and poses a risk of bodily injury or death to persons who come into contact with it—qualifies as "information that was not known to [Lee]" at the time of his detention hearing. 18 U.S.C. § 3142(f). Therefore, the fulfillment of that aspect of section 3142(f) ’s criteria for reopening Lee's detention determination cannot reasonably be disputed, such that the sole issue that this Court must decide when addressing Lee's emergency release request is whether the new circumstance of the COVID-19 pandemic has "a material bearing" on Magistrate Judge Meriweather's prior detention determination. Id. Lee's motion itself does little to articulate how this new circumstance bears on each of the factors that were previously weighed to reach the conclusion that Lee must be detained. And for the reasons explained below, this Court doubts that the COVID-19 pandemic has any material impact on the section 3142(g) factors that led Magistrate Judge Meriweather to determine that pretrial detention was warranted in Lee's case.

To begin with, the global pandemic does not, and cannot, alter "the nature and circumstances" of Lee's charged offense, 18 U.S.C. § 3142(g)(1), nor does it impact "the weight of the evidence" against Lee, id. § 3142(g)(2). It also appears that Lee's personal circumstances are not like those of other defendants for whom COVID-19 has a readily material bearing—e.g. , those who have underlying medical conditions and thus reasonably maintain that COVID-19 casts new light on the individual "characteristics" that the court previously considered when deciding whether detention was required. Id. § 3142(g)(3). In other words, Lee's motion does not allege that he has any "physical or mental condition" that would make the COVID-19 outbreak material to the statutorily prescribed detention determination, see id. § 3142(g)(3)(A), and it does not appear that the pandemic materially impacts any other relevant aspect of Lee's "history or characteristics[,]" id. § 3142(g)(3).

At most, Lee's motion tries to link the new and serious COVID-19 crisis to the factors that section 3142(g) prescribes by suggesting that the pandemic materially alters the Court's analysis of the fourth detention factor: "the nature and seriousness of the danger to any person or the community that would be posed by person's release." 18 U.S.C. § 3142(g)(4). In this regard, Lee insists that, now unlike before, Lee's "release enhances the safety of other people in the community[,]" because "it is the incarceration that is dangerous in the context of the COVID-19 pandemic" insofar as it makes it impossible for Lee to "exercise [those] self-protective measures" necessary to avoid the transmission of the virus. (Def.’s Mot. at 4 (emphasis in original).) But, of course, accepting this argument would require the Court to ignore the fact that the relevant statutory inquiry is not the benefits that a defendant's release would bring about (however significant) or the harms that his incarceration would cause (however substantial). Rather, the statute requires the Court to evaluate "the danger " that "would be posed by the person's release. " 18 U.S.C. § 3142(g)(4) (emphases added). And, truth be told, the dangers that Lee's release poses in the age of COVID-19 are substantial, insofar as they include not only the risk that he will continue to engage in the same types of unlawful and potentially dangerous conduct that led to both his initial conviction and the charge of unlawful firearms possession that is at issue in this case, but also the heightened safety risks that his release poses to the probation officers who would be tasked with monitoring his behavior while he is out of jail on pretrial release. (See Gov't Opp'n at 14.)

This all means that there is nothing about the new circumstance of the COVID-19 pandemic that has a material impact on any of the factors that Magistrate Judge Meriweather previously considered when the determination that Lee should be detained was initially made. Therefore, there is no basis for reopening that detention decision under 18 U.S.C. § 3142(f).

IV.

To the extent that Lee's motion suggests that this Court should "temporarily release [him] until both the resolution of this global health crisis and the creation of safe and constitutionally compliant conditions inside the [detention] facility" by DOC (Def.’s Mot. at 5), defense counsel has explicitly invoked the "Fifth and Eighth Amendments to the United States Constitution" (Def.’s Mot at 5 (capitalization altered)) and has implicitly relied upon 18 U.S.C. § 3142(i). Given the information that is presently before this Court, both efforts fail at this time.

With respect to Lee's constitutional contentions, the D.C. Circuit has made clear that "an individual not yet convicted of a crime must challenge his treatment or the conditions of his confinement under the Due Process Clause of the Fifth or Fourteenth Amendments rather than the Eighth Amendment[.]" Ali v. Rumsfeld , 649 F.3d 762, 770 n.10 (D.C. Cir. 2011). Nonetheless, it is well established that Fifth Amendment claims brought by pretrial detainees are "generally analyz[ed] ... under the same standards governing Eighth Amendment claims brought by prison inmates[,]" Young v. Dist. of Columbia , 107 F. Supp. 3d 69, 77 (D.D.C. 2015) (internal quotation marks and citation omitted), and as a result, pretrial detention conditions violate the Fifth Amendment only if they (1) rise to an objective level of a "serious" deprivation, and (2) result from the official's subjective "deliberate indifference[,]" Wilson v. Seiter , 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). COVID-19 presents undoubtedly serious circumstances, but Lee has not alleged that prison authorities have been deliberately indifferent to this threat, and he would be hard pressed to do so, given the aggressive precautions that DOC appears to have undertaken to prevent the spread of COVID-19 within its facilities. Thus, Lee's Fifth Amendment argument fails.

As far as section 3142(i) is concerned, Lee has not asserted that temporary release is "necessary for preparation of [his] defense"; rather, at best, his arguments suggest that COVID-19 is "another compelling reason" that necessitates his temporary release. 18 U.S.C. § 3142(i). And it might well be the case that certain defendants—and here the Court is thinking primarily of those who have underlying medical conditions that make them especially vulnerable to the virus—could become eligible for temporary release under the "another compelling reason" prong of section 3142(i) in light of the threat that the COVID-19 pandemic poses to them in particular. See, e.g. , United States v. Michaels , No. 16-cr-76, 2020 WL 1482553 (C.D. Cal. Mar. 26, 2020). But, in Lee's case, this Court agrees with those recent precedents that have rejected emergency motions for release of otherwise healthy and potentially violent defendants based solely on the generalized risks that COVID-19 admittedly creates for all members of our society. See, e.g. , United States v. Cox , No. 19-cr-271, 449 F.Supp.3d 958 (D. Nev. Mar. 27, 2020) ; United States v. Green , No. 19-cr-304, 2020 WL 1477679 (M.D. Fla. Mar. 26, 2020) ; United States v. Steward , No. 20-cr-52, 2020 WL 1468005 (S.D.N.Y. Mar. 26, 2020) ; United States v. Hamilton , No. 19-cr-54, 2020 WL 1323036 (E.D.N.Y. Mar. 20, 2020).

This is not to say that temporary release under 3142(i) would never be available to a detainee who makes an emergency request without pointing to any individualized reasons for why release would be necessary in his particular case (such as a pre-existing medical condition). Indeed, the Court can imagine a situation in which temporary release might be warranted notwithstanding the lack of any individualized reason for releasing the particular detainee, such as the potentially compelling generalized reason of indifference, ineptitude, or sheer inability on the part of corrections authorities to ensure the safety of the prison's population. But the record here does not yet support any such justification; to the contrary, in light of the heightened risks and potentially disastrous consequences of the stealthy spread of COVID-19, DOC has moved intentionally and swiftly to take myriad precautions for the protection of detainees—for example, it has "suspend[ed] all in-person visits, programming, and volunteer activities at its facilities"; asked its medical staff to "meet[ ] with each housing unit and officer roll call"; "[e]nhanced cleaning efforts, especially within common areas"; "[o]rdered additional cleaning and sanitation supplies, including protective gloves, masks and clothing for staff"; "[i]nitiated a two-hour cleaning of the entire facility (sanitizing and reminding people to wash their hands)"; suspended "off-unit religious services, ... off-unit activities, and ... barbering/cosmetology services"; and diminished "out-of-cell time (minimum of 2.5 hours daily) to reduce the number of social contacts." To be sure, it is not yet clear whether, or to what extent, these efforts will actually mitigate the spread of this disease within the facility where Lee is currently housed, but this Court has no doubt that DOC's actions represent that it is keenly aware of the problem, and just like the many other institutions in our society that are currently operating under enormously challenging circumstances, DOC appears to be doing its best to implement the leading health authorities’ recommendations. Therefore, Lee has not yet made the necessary showing that the mere circumstance of being detained by these authorities under the present circumstances is a "compelling" reason that makes it "necessary" for him to be temporarily released under section 3142(i).

Finally, and in any event, the Court also notes that, per section 3142(i), a judge may temporarily release a pretrial detainee to "the custody of a United States marshal or another appropriate person ," 18 U.S.C. § 3142(i) (emphasis added), which appears to be another element of the statutory standard that Lee's motion overlooks. Lee does not explain how his proposal for temporary release to live with his mother would satisfy this requirement (see Def.’s Mot. at 5), and to be successful, any subsequent motion for release that may seek to make under this provision must address how Lee's mother, or any other individual, would be an "appropriate person" within the meaning of section 3142(i). Compare United States v. Courtney , No. 19-cr-413, ECF No. 27 (D.D.C. Mar. 20, 2020) (denying a request for temporary release on the grounds that the defendant's sister was not an "appropriate" third-party custodian) with United States v. Perez , No. 19-cr-297, 2020 WL 1329225, at *1 (S.D.N.Y. Mar. 19, 2020) (temporarily releasing the defendant to the custody of his wife on 24-hour house arrest).

V.

This Court understands the unprecedented magnitude of the COVID-19 pandemic and the extremely serious health risks that it presents, especially to individuals detained in federal custody. However, as explained above, the generalized risks posed by the COVID-19 pandemic do not alter the individualized balance of the statutory factors that Congress prescribed for determining the propriety of the defendant's detention in this particular case, and the Court is also not persuaded that the generalized risk of contracting COVID-19, without more, constitutes a "compelling reason" for Lee's temporary release at this time. Because the Court is mindful that both the conditions in the D.C. jail and the COVID-19 pandemic itself are both rapidly evolving, it will entertain a renewed request for release if—at some point in the future—it becomes clear that DOC is unwilling or unable to protect individuals in its custody from contracting the disease. In other words, there may come a time when reopening Lee's detention hearing pursuant to section 3142(f), or temporarily releasing him under section 3142(i), may be warranted. But, at present, Lee's motion fails to present sufficiently material compelling circumstances to justify either reopening Magistrate Judge Meriweather's detention hearing or granting Lee temporary release.

Accordingly, it is hereby

ORDERED that Defendant's motion is DENIED WITHOUT PREJUDICE .