Donald Trump’s interlocking anti-immigration measures have already spurred litigation. State attorneys general are bringing suit against the practice of separating families at the border. The ACLU is arguing for injunctions to speed up family reunification. At least one asylum-seeker has been able to use litigation to pressure the government into finding her child and reuniting him with her. These suits are laudable and effective in front-line action to restore children and parents to each other’s company. But they do not focus on repairing the wrongs done to the thousands of individuals who have suffered through family separation and detention even when—and if—they are eventually reunited. There is, however, a far-reaching legal remedy available to families and children subjected to the Trump administration’s extreme operations at the southern U.S. border, other ports of entry, and facilities throughout the country: Meaningful relief through the courts could be pursued via tort actions brought to recover for the intentional infliction of emotional distress (IIED).
This narrowly tailored private lawsuit answers perfectly to the injuries caused to migrants by Trump’s policies and their implementation. Its reach includes high-level government officials but extends much further, to lower-level government workers and private actors, both corporate and individual. Successful IIED claims can generate punitive damage awards aimed at deterring morally culpable conduct, as well as compensatory damages, which can address medical needs of the victims of such conduct. While establishing and proving intentional infliction of emotional distress can be fact-intensive and therefore involve litigation expense for plaintiffs, the prospect of major damage awards should motivate skilled tort lawyers to take on these cases. While it’s true that the major elements of a claim for intentional infliction of emotional distress are for juries to decide on a case-by-case basis, the public outcry over the horrendous impacts bodes well for plaintiffs. And if early plaintiffs prevail, litigation for additional plaintiffs would become more streamlined.
The central idea behind the tort of IIED is distinctly moral: It is meant to provide a remedy to those subjected to cruel and outrageous conduct, especially from those who hold power over them. The conduct must go beyond incivility or even ordinary malice. To prevail, a plaintiff must show that the conduct, according to one canonical formulation, “has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” According to the same source, “Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”
Do these cases meet that criteria? Consider just a few examples of how parents and children arriving from Latin and South America have been treated upon arrival at the southern border and various ports of entry, and how they have been treated since:
• Border agents told migrants that their children were going for a bath, then refused to return them while they detained the parents.
• Distressed infants and young children separated from their parents are being held in private institutional facilities without access to any family members. Children have been kept in cages with only chips to eat while awaiting shipment to facilities all over the country.
• Some children and parents seem likely to remain separated indefinitely, not for any legitimate reason but simply because they were caught up in separation and detention proceedings initially.
In these examples and closely related situations, every actor other than the immigrants themselves stands potentially accountable for intentional infliction of emotional distress. Holding a government office or working for the government does not usually protect someone from liability for IIED. Providing the infrastructure, commanding the actions, staffing the facilities all counts as being party to the infliction, and every individual and company involved is liable to suit and for damages. In many cases this includes state and local officials who have assisted in family separation because, like the Federal Tort Claims Act, many analogous state Tort Claims Acts waive sovereign immunity for tortious conduct by their officials, including waiving liability for IIED.
This is not to say that every immigrant alleging serious emotional harm caused by those who have ordered and carried out family separation and related measures has a winning claim for damages. Jurisdictions vary in their receptiveness to claims for IIED, so accountability would vary from state to state. But the clear psychic anguish caused by Donald Trump’s and Jeff Sessions’ orders for zero tolerance and family separation, along with the implementation of these orders, should supply, in a majority of jurisdictions and against a variety of defendants, grounds for tort lawyers to review potential cases seriously and to pursue many of them. Tort lawyers are skilled in identifying potential clients and in collaborating in coordinated proceedings where appropriate. As the names of affected migrants and their children become known, we can expect actions for their damages to follow.