Last week, federal Judge Dana M. Sabraw issued a nationwide injunction ending the Trump administration policy of removing children from families entering the United States. This order was an important first step, but legal and practical problems mean separations could very well resume, and reunifications face enormous obstacles. There obviously must be judicial oversight of any more separations as required by law. But that’s not enough. We suggest two additional solutions: blocking deportations and a combination of personal tort suits and state criminal charges for officials who take part in “indiscriminately” separating families after Judge Sabraw’s categorical ruling against it.
As we previously argued in Slate, the administration’s family separations were plainly unconstitutional. The district court agreed, at least for the purposes of a preliminary injunction. Under the orders, children younger than 5 must be reunited with their families within 14 days of the order. The court ruled that children 5 and older must be reunited within 30 days.
Reporting since the court issued its order indicates that the government does not intend to abide by the order. For example, as reported by Noah Lanard at Mother Jones, ICE is denying bond to migrants seeking asylum as a way to extend the time that families can be separated. Given the administration’s complete opposition to the court’s order, it is not surprising that the government is finding ways to keep families apart.
Given the difficulties in reuniting some these families, it is also reasonable to assume that the Trump administration will not take the necessary steps for reunification. For example, Hannah Dreier reported of a case in which parents remained jailed at the border while their 9-year-old was deported back to Mexico alone and put into foster care. Reuniting those families will require coordinating with Mexican authorities, something the Trump administration is unlikely to do unless pushed.
Moreover, the judge has left a potential loophole, allowing for separations to continue if there has been a “determination that the parent is unfit or poses a danger to the child.” While this is in accordance with dependency law—the law governing the removal of children from their parents—there are not yet any judicial checks in place to ensure that any administrative determinations of “unfitness” or “danger” to the child do not continue to be unlawful and arbitrary.
The law in this area is clear. As Judge Sabraw—a George W. Bush appointee—noted, due process, including a reasonable hearing on parental fitness, is required before the government can interfere with a parent’s right to raise his or her own child. Further, objective standards for determining when a child is in danger are essential because “neglect” can be confused with poverty by government officials, and determinations of harm to the child can be culturally biased.
Crucially, noncitizens have substantive due process rights according to the Supreme Court decision in Zadvydas v. Davis. At the initial court hearing in the ACLU case, the government’s own attorney specifically acknowledged this when asked if due process rights apply in cases of undocumented immigrants. Department of Justice attorney Sarah Fabian herself said, “The government’s position is not that substantive due process does not apply here.”
Ordinarily, determinations of unfitness are made by social workers who have been trained in dependency law. To guard against arbitrary decisions on the part of government workers, any time a child is removed from her parent or parents, the parents are entitled to a fair hearing on parental fitness and are entitled to court-appointed counsel.
In the case of further border separations on the basis of parental unfitness or danger to the child, there is no indication that ICE officers, who presumably will make any such determinations, have been trained in the applicable legal standards. Moreover, there are no procedures in place for judicial oversight or court-appointed lawyers for parents.
Without due process protections, illegal separations can—and very likely will—resume.
What are some appropriate remedies and preventative measures? States must take affirmative steps, including the threat of legal action against any officials who help enforce renewed separations without due process. Previously in Slate, we suggested damage awards for the violations of any family’s constitutional rights. Massive damage awards are appropriate if children have been lost or separated for long periods. In Slate, Heidi Li Feldman also suggested families can sue for the tort of intentional infliction of emotional distress. We add here that some of these officials may be committing another tort, and potentially even a crime, against some asylum-seekers: false imprisonment. Many reports indicate that valid asylum-seekers arrive at appropriate ports of entry trying to declare asylum, but officials are deliberately turning them away in violation of the law. Out of necessity, families cross elsewhere, and despite immediately declaring asylum, they have been arrested and separated. According to affidavits in the case before Judge Sabraw, many other families arrived at a port of entry lawfully before declaring asylum, only to be separated without any due process.
In some cases, officers may have committed the tort and the crime of false imprisonment: (1) a willful detention, (2) without consent, (3) despite knowing that the arrest was without authority. (See California’s false-imprisonment statute.) If officers knew that an asylum-seeker had previously attempted to follow the law and declare asylum legally, and they nonetheless made the arrest, then that might be false imprisonment. For both torts of intentional infliction of emotional distress and false imprisonment, families can sue under the Federal Tort Claims Act. To be clear: We are not suggesting the prosecution of officers for any border arrest, but for those cases of specific knowledge that the arrest was unwarranted.
Going forward, if officials intentionally defy Judge Sabraw’s order and continue removing children, not only should they be held in contempt, they should be prosecuted for kidnapping, which state statutes define as the intentional and “unlawful” confinement or taking of a person. California’s kidnapping statute prohibits the forcible detaining or arresting of any person, unless that arrest is “in a case and in the manner authorized by law.” That statute is written in a way to extend criminal liability for officials making unlawful arrests, and it’s important to note that the officer has to know that the arrest is unlawful. If an officer forcibly detains and removes a child in intentional defiance of a court order, that removal would be knowingly unauthorized by law, and thus it would be kidnapping.
Under Texas’ third-degree kidnapping statute: “A person commits an offense if he intentionally or knowingly abducts another person.” These officials would be kidnapping and abducting children illegally if they defy a clear court order. Moreover, officers who refuse to reunite children with their families in defiance of a court order could also risk criminal liability under these statutes.
We also note that, in some extreme cases, child-endangerment laws might apply. California’s child-endangerment statute declares: “Any person who … willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering … or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.” Child separations in defiance of court orders would be inflicting unjustifiable mental suffering. And it is also child endangerment if officials are intentionally and maliciously creating unsafe conditions at “ports of entry” to deter asylum-seeking families from coming legally and forcing them to cross illegally in dangerous places (where they are to be arrested).
When government officials commit intentional torts, they can be held personally liable. However, Congress passed a statute in 1988 that protected officers from personal liability as long as they were acting within the scope of their employment. The courts are still working out rules for what is within the scope of employment, but a simple rule should be applied: Using one’s office to engage in criminal acts—and perhaps malicious intentional torts like intentional infliction of emotional distress, as well—is plainly beyond the scope of employment.
It might be hard to convict in these cases, but intentional cases of false imprisonment, child endangerment, and kidnapping should be prosecuted by state officials, if only to deter future lawless and potentially criminal acts by government officials who will claim to be “just following orders.” Those crimes also would open up those officers to personal liability. The point here is that the government has acted so beyond the pale in these cases that the only way to ensure further abuses don’t occur is to make officials think twice—about both criminal law and personal liability—before they again carry out another such unconstitutional and inhumane order.
Still, money and indictments are obviously not a sufficient remedy for this devastating injury. Courts should issue orders requiring the administration to move heaven and earth to reunite families, as has already happened in the case before Judge Sabraw. This too might not be enough, though. In cases where deportation without separated children has been threatened to continue, it is appropriate for courts, based on their broad powers under equity, to block deportations indefinitely until reunification.
Blocking deportations at this time would address glaring practical problems with reunification. If parents are removed to their country of origin without their children—as has already reportedly happened—especially if they had valid asylum claims, they might be even more endangered when they get back home, and they would have good reason to avoid scrutiny and disappear. Reunification would obviously become almost impossible in such a circumstance. Families facing such threats must stay in the United States until their children are found, lest children with loving parents be turned effectively into orphans by the government of the United States.
It is the essence of equity to craft a remedy that addresses the depth of the violation. It is also in the spirit of asylum law: If individuals have a right to asylum because their human rights are violated by other countries, when the United States has violated their human rights, the burden to grant a reprieve should fall heavier on the government that has committed the second violation.
The Trump administration framed its family-separation policy in terms of deterrence—cruel, brutal, unconstitutionally disproportionate deterrence. It would be appropriate, and even necessary, for state prosecutors to respond to defiance of court orders against such a policy in a language the administration can understand: deterrence through prosecution. If government officials constructed and enacted an illegal and inhumane policy to keep “these people” out, maybe they’ll think twice once they face direct legal consequences for those monstrous actions.