Courts are operating at limited capacity as the COVID-19 pandemic continues, but some defense attorneys and their clients are arguing that the risk of contracting the disease should be cause for release. Could this pandemic set any new legal precedents? And what happens if an individual arrested for a crime knowingly has the virus and spits on or bites an officer while they are making an arrest?

Risk behind bars

Defense attorneys in several states told Slate they witnessed groups of defendants still congregating in courthouses after being arrested for low-level offenses. Several attorneys have tried to argue before a judge that their clients should be released due to the risks of catching COVID-19 behind bars.  Some have been successful,  but for others were shot down, with judges in different cases unwilling to “entertain a coronavirus-based argument” or factor it into their decision-making.

Attorneys have argued that their clients would not have access to toilet paper or soap once behind bars. Others argued that their clients were immunocompromised or otherwise at risk for a severe case of COVID-19, but some judges still remain hesitant to factor the pandemic into their decisions, even for nonviolent offenders.

High-profile inmates argue for release

Meanwhile, some high-profile inmates have argued for their release based on COVID-19 fears, and a few have been successful.

President Donald Trump’s former attorney Michael Cohen was released from federal custody into home confinement in late May over concerns that he could contract COVID-19 behind bars. Cohen was sentenced to three years in federal prison after pleading guilty on several charges including lying to Congress and campaign finance violations. He had been serving his time at a federal prison in Otisville, NY.

Another Trump associate, former campaign manager Paul Manafort, was also released from prison into home confinement, reportedly due to COVID-19 concerns. He was sentenced to seven years for tax fraud and conspiracy charges related to special counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election.

At the same time, R&B singer R. Kelly also made a request for temporary release due to the pandemic. A U.S. district judge in New York denied this third request in late May, which was based on his legal team’s arguments that Kelly is diabetic and thus could potentially develop a severe case of COVID-19. The judge said she did not believe diabetes was a compelling reason for his release and also considers him to be a flight risk. Kelly is still behind bars facing sex crime charges in Chicago, New York and Minnesota.

Allegations of disease during arrest

In 2008, a Texas man was sentenced to 35 years in prison for spitting into a police officer’s mouth and eye while proclaiming he was H.I.V. positive. The man was charged with harassing a public servant with a deadly weapon.

In 2018, an Illinois man lashed out at cops during a welfare check, kicking and swiping at one and biting another officer’s leg after announcing he “had AIDS” and asked whether the officer wanted to contract AIDS before biting him. The cop was wearing several layers of clothing and the man did not leave a bite mark or break skin. He was still charged with aggravated battery to a peace officer and aggravated assault of a peace officer.

Recently a woman in New Jersey was charged with making terroristic threats after spitting on an officer and claiming she was infected with COVID-19 during an arrest for alleged disorderly conduct. She was also charged with aggravated assault on a police officer. The woman was found to be lying about having the disease, and the officer involved was taken to a hospital for testing and was later released.

As the pandemic continues, it’s possible COVID-19 may be used as a threat, whether real or fabricated, by those under arrest. If used as a threat to a police officer, it’s not impossible to imagine that someone could eventually be facing serious charges due to the highly contagious nature of the disease and the different outcome it can have on a person’s health. Charges may go beyond harassment or assault depending on the jurisdiction.