Yesterday marked the first deadline for the Trump administration to reunify migrant children under five with their families. Yet, Immigration and Customs Enforcement (ICE) has failed to return even half of the children by the deadline. This has sparked a legal debate as to what consequences there are for administration officials who disobey judicial rulings designed to prevent serious harms to migrant children and their parents.
We consulted with top law professors from around the country to assess what penalties there may be for ICE officers. We also explore what impact the nomination by Trump of Judge Brett Kavanaugh to the Supreme Court could have.
This report concludes that there is a major potential risk of personal liability for individual ICE officers under current law for disobeying court ordered deadlines and procedures. Further, a Cornell law professor has mentioned to us that Cornell Law School is actively investigating a potential lawsuit to hold the appropriate people accountable.
However, Judge Kavanaugh has expressed emphatic concern with fining officers individually, and he may be in a position to change the Supreme Court’s position on such fines. Judge Kavanaugh has disagreed with his colleagues on the D.C. Circuit Court of Appeals on this issue, and in one majority opinion his colleagues accused Judge Kavanaugh of “doomsaying”[1] about the harms of officer penalties.
Kavanaugh has repeatedly found law enforcement officers to be immune from suit, arguing it was not clear at the time in various cases that officers did anything unconstitutional. This includes severe police beatings and one case where roughly 1,600 women arrested for non-violent non-drug offenses (e.g. traffic stops) were subject to visual body-cavity strip searches when men were not subject to them. This is despite finding that the searches were of a “particularly invasive type” and only applied to women. If a lawsuit against law enforcement heads to the Supreme Court and Kavanaugh is confirmed, his shoddy record of protecting police may lead to a divided court protecting members of ICE.
Law professor contributors to this report include:
Prof. Cristina M. Rodríguez of Yale Law School, who clerked for Justice Sandra Day O’Connor of the U.S. Supreme Court;
Prof. Noah Feldman of Harvard Law School, who clerked for Justice David H. Souter of the U.S. Supreme Court;
Prof. Louis Seidman of Georgetown Law, who clerked for Justice Thurgood Marshall of the U.S. Supreme Court;
Prof. Seth Kreimer of University of Pennsylvania, who serves as the American Civil Liberties Union, Philadelphia Chapter, Chair of the Legal Committee;
Prof. Jaclyn Kelley-Widmer of Cornell Law School, who clerked at the San Francisco Immigration Court through the Department of Justice Honors Program; and
Prof. James E. Pfander of Northwestern’s Pritzker School of Law, who served as chair of both the federal courts and civil procedure sections of the Association of American Law Schools.
Is ICE violating the Constitution with its “zero tolerance” policy on migrants?
Judge Dana M. Sabraw is one of the most important figures in the family separation crisis today. Sabraw is presiding over the lawsuit against ICE over its zero tolerance policy that has caused many children to be detained and separated from their parents. Sabraw issued an order finding “Plaintiffs had stated a legally cognizable claim for violation of their substantive due process rights to family integrity under the Fifth Amendment to the United States Constitution based on their allegations the Government had separated Plaintiffs from their minor children while Plaintiffs were held in immigration detention and without a showing that they were unfit parents or otherwise presented a danger to their children.”[2]
Sabraw further said the evidence submitted to date “demonstrates Plaintiffs are likely to succeed on this claim.” What this means is that there is no final decision as to whether ICE has violated the Constitution. A full trial will be needed to determine that. However, it seems likely to the court that ICE is in the process of violating the Constitutional rights of migrant children and their families. Because of that likelihood, Sabraw has ordered ICE to reunite these families. Yet, the Trump administration has now disobeyed this court order. The question then turns to the legal consequences, if any, that are likely to be in store for Trump administration officials.
What happens when an ICE officer disobeys the Constitution as interpreted by the courts?
ICE officers directly handling the separation may be in serious jeopardy of financial penalties. We asked top law professors from leading law schools about what happens next. We said, “Some of these children have been traumatized but of course they have not lost work. If they are not reunified by the court’s deadline and continue to be harmed, do you think there’s any meaningful remedy they could get from any party? Is there any deterrent to ICE employees who fail to log/process these children correctly or otherwise mishandle them?”
Traditionally, violations of court orders are often met with a charge of contempt. This can involve jail time for the parties found in contempt. However, things get trickier when the federal government is the one in contempt. Prof. Seidman said, “there’s a long history of judges dealing with officials who disobey court orders going back, at least, to the civil rights era. In theory, officials could be jailed for contempt or fined, but in practice judges are understandably reluctant to use these tools.”
Prof. Pfander mentions “the very spotty use of contempt sanctions to enforce federal decrees against federal agencies and federal employees” and referenced evidence finding “that contempt almost never sticks.” Prof. Rodriguez adds, “An obvious response by the court could be to hold the government in contempt, but I’m not sure what follows from that, especially with an administration that might not care about reputational costs.”
This means that contempt is unlikely to be of much help to the migrant families or much of a deterrence to ICE. As a result, migrants would likely have to look elsewhere for a meaningful judicial consequence to disobedient administration officials. One avenue is to look to issuing monetary penalties against either ICE itself or the individual officers.
Prof. Kelley-Widmer notes, “A civil damages suit is an avenue that we are actually looking into here at Cornell, because we have been thinking that the damages caused by the prolonged family separation may be significant enough to warrant a damages suit.” This has serious implications for law enforcement officials working on separating families. Prof. Kelley-Widmer cautioned that it was too early in the research phase to say definitively whether such a case would ultimately be filed or considered viable by their team.
Prof. Feldman sees several risks for the administration. Prof. Feldman noted, “A court could order injunctive relief and impose fines, but the money wouldn’t go to the families.” In other words, the court might decide that one government department (ICE) would have to pay fines to another government department. Prof. Feldman further says, “Another option would be a sec. 1983 suit alleging unlawful detention – that would come with damages to families.” Finally, Prof. Feldman mention a lawsuit could be brought under “an implied Bivens-style damages action.” He is referring to the Supreme Court decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.
This has huge ramifications for individual ICE employees. The Bivens decision said that while the government has certain immunities, individual officers may be sued personally for violating people’s Constitutional rights. In such cases, the officers themselves would have to pay money damages and not their employer (ICE).
Prof. Kreimer echoed Prof. Feldman’s suggestion of a case invoking Bivens. He said, “Available remedies could be: 1. Civil contempt 2. FTCA 3. Bivens 4. Possible state law causes of action against the malefactors.”
According to the Federal Judicial Center, an agency within the federal judicial branch, Bivens claims against individual officers are often the only meaningful solution to government overreach. The agency notes a “concern that failure to recognize the Bivens damages remedy against a federal official would leave the plaintiff without a remedy, because constitutional claimants like Webster Bivens and Shirley Davis did not have claims for prospective relief, and could not seek damages against the United States or a federal governmental agency because of sovereign immunity.”[3]
This sets up a huge tension between ICE itself and ICE’s employees. ICE may have a much stronger claim to legal immunity than the officers themselves. While such employees may say they were “just following orders,” their highest command is to uphold the Constitution. This overrides any contrary decision from ICE or even Trump himself. Violation of this duty could be very costly to individual officers who participated in separating (or failing to reunify) migrant children and their families.
Judge Sabraw was scathing in his order requiring reunification. He said, “A practice of this sort implemented in this way is likely to be ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,’ [and it likely] interferes with rights ‘implicit in the concept of ordered liberty[,]’ … and is so ‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency.”[4]
ICE employees who have participated in the failure to obey Judge Sabraw’s order to reunify should heed these words. Failure to do so may result in serious personal financial and legal risks.
How large might financial penalties against ICE employees be?
Most people are understandably upset when they get a $100 parking ticket. However, such minor infractions pale in comparison to shocking violations of children’s’ most important Constitutional rights. The monetary risk to ICE employees here is proportional to this enormous harm.
Judge Sabraw is perhaps speaking directly to ICE employees who are unsure of whether to heed unconstitutional orders. He said, “The injury in this case, however, deserves special mention. That injury is the separation of a parent from his or her child, which the Ninth Circuit has repeatedly found constitutes irreparable harm.”
Furthermore, the judge noted “the record in this case reflects that the separations at issue have been agonizing for the parents who have endured them. One of those parents, Mr. U., an asylum seeker from Kyrgyzstan, submitted a declaration in this case in which he stated that after he was told he was going to be separated from his son he ‘felt as though [he] was having a heart attack.'” The Court further noted “a report that one father committed suicide in custody after being separated from his wife and three-year-old child.”[5]
Of course, the court paid significant attention to the harms to the children themselves. The court found persuasive an argument that “there is ample evidence that separating children from their mothers or fathers leads to serious, negative consequences to children’s health and development. Forced separation disrupts the parent-child relationship and puts children at increased risk for both physical and mental illness…. And the psychological distress, anxiety, and depression associated with separation from a parent would follow the children well after the immediate period of separation— even after eventual reunification with a parent or other family. “[6]
These forceful condemnations of the effects of family separation should serve as ample warning to ICE employees. By illustrating the long term nature of these potentially “irreparable harms,” the court is providing fair warning to ICE officials who nonetheless disobey the court’s deadlines and rulings.
The judge continued to note the potentially life-long consequences to children as a result of the policy. He noted evidence that “Separation from family leaves children more vulnerable to exploitation and abuse, no matter what the care setting. In addition, traumatic separation from parents creates toxic stress in children and adolescents that can profoundly impact their development. Strong scientific evidence shows that toxic stress disrupts the development of brain architecture and other organ systems, and increases the risk for stress-related disease and cognitive impairment well into adult years. Studies have shown that children who experience such traumatic events can suffer from symptoms of anxiety and post-traumatic stress disorder, have poorer behavioral and educational outcomes, and experience higher rates of poverty and food insecurity.”[7]
All of these consequences are likely to be brought up in a Bivens lawsuit against individual ICE officers themselves. The severe emotional distress, which might have life-long implications for the children and their families, may have to be compensated for by ICE officers.
Prof. Kelley-Widmer notes, “Lawsuits for damages due to trauma and mistreatment to immigrant detainees are theoretically possible under the Federal Tort Claims Act (FTCA), certain civil rights statutes, or a case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (Bivens actions). Where there are significant damages in cases such as wrongful deportation, unlawful search and seizure, and similar cases, a damages suit may be appropriate.”
Police officers have been ordered to pay million dollar sums with much smaller injuries to the victims. The media scrutiny of any lawsuit against ICE employees would also be immense. However, there is one major hurdle to such lawsuits: Trump’s latest Supreme Court nominee Brett Kavanaugh.
Trump’s Supreme Court pick may be the biggest hurdle to law enforcement accountability for unconstitutional conduct.
Contributing professors were quick to note that lawsuits against federal employees personally often brush up against hostile judges. One judge who is particularly unsympathetic to such suits is none other than Kavanaugh. He has demonstrated substantial hostility to suits against law enforcement officers.
Kavanaugh has championed a burdensome interpretation of a doctrine called “qualified immunity.” This is a rule that protects government officials from orders to pay damages for some (but not all) unconstitutional behavior. The question of liability turns on whether it was clear at the time of the conduct that the officer was violating the Constitution. Here, a court has explicitly ordered the reunification of families. Also, there was a July 10 deadline which the Trump administration admits it failed to meet. Whether it was clear that the zero tolerance policy was unconstitutional at the beginning is perhaps more debatable than stonewalling, disobeying the judge’s order, and continuing to detain people in violation of a federal judge’s ruling.
With Justice Kennedy retiring this month, the court is losing its most reliable swing vote. There will be two clear sides: four consistent progressive justices and four steady conservative justices. Trump SCOTUS pick Judge Kavanaugh is not only very conservative; he has been chided by fellow judges on the D.C. Circuit Court for his “doomsaying”[8] opposition to financial accountability for individual law enforcement officers. The Senate battle over his confirmation may decide the fate of a potential lawsuit against ICE officers who participated in the separation and failure to reunify by the court’s deadline. If a case against an ICE officer makes it to the Supreme Court, Trump nominee Kavanaugh (if confirmed) may tip the votes toward a 5-4 judgment in favor of no accountability for any ICE officers.
Kavanaugh generally finds qualified immunity for police.
In a case from 2014, roughly 1,600 women who had been arrested for “non-violent, non-drug minor offenses (such as traffic stops)” had been subjected to intrusive strip searches. Each woman “was subject to a visual body-cavity strip search pending her appearance before a judge or magistrate.”[9] The plaintiffs went before Judge Kavanaugh and asked to hold the employees responsible.
The plaintiffs “challenge[d] the practice of the former U.S. Marshal for the D.C. Superior Court of conducting pre-arraignment body-cavity searches of women, but not men, without any warrant or even individualized suspicion that the women were carrying contraband in their body cavities.” (emphasis added).
Kavanaugh upheld a decision of qualified immunity, finding no clearly established Constitutional right for women to be strip searched for minor offenses like traffic stops but not men. This is despite Supreme Court case law (argued by then-ACLU attorney Ruth Bader Ginsburg) clearly establishing the right to enhanced scrutiny in equal protection claims advanced based on sex back in in 1976.[10]
The court found, “The searches at issue in this case, although sometimes referred to by the shorthand ‘strip search,’ were of a particularly invasive type, involving close visual scrutiny of arrestees’ body cavities… This case involves practices far more intrusive than naked shower ‘strip searches’ of incoming groups of inmates, in which guards stand several yards back to supervise lice shampoo application and check for wounds or gang tattoos before convicts enter prison… The policy challenged here, in contrast, required plaintiffs to remove their clothing, squat to expose their vaginas, and cough in order to dislodge anything they might be hiding inside while officials, looking for potential contraband, individually scrutinized plaintiffs’ genitalia at approximately arms’ length.” Despite this obscene and women-only invasion of Constitutional rights, Kavanaugh declined to hold any employees accountable. Kavanaugh found persuasive the argument that the officers stopped these strip searches after the litigation was filed. However, Kavanaugh’s colleague wrote separately to note that if the court did not hold those involved accountable, they could simply resume these practices after the lawsuit ended.
In another case from two years ago, an 11-judge panel of the Court of Appeals for the D.C. Circuit heard a case against police officers at risk of personal liability. Prior to the appeal, a jury found two police officers liable for violating the plaintiffs’ Constitutional rights. The judgment was for just under $1 million dollars. The D.C. Circuit Court upheld the jury’s decision. Yet, Kavanaugh wrote the only dissent, saying, “Two D.C. police officers have been held liable for a total of almost $1 million. That equates to about 20 years of after — tax income for the officers, not to mention the harm to their careers.”[11] In other words, Kavanaugh’s focus was on the harm to the officers rather than the harm to the plaintiffs.
Another case three years earlier also saw Judge Kavanaugh dissenting when his colleagues held law enforcement personally responsible for damages.[12] That case held that a retaliatory arrest in response to a person’s First Amendment protected activity is unconstitutional. The majority held that where such an arrest is actually retaliatory, it had been clearly established in that jurisdiction as unconstitutional for the preceding 25 years. In other words: if you say something the government does not like, it cannot arrest you as retaliation for speaking out absent extraordinary circumstances like using speech to cause violence. In dissent, Kavanaugh wrote, “Because the First Amendment law on this point is not clear, the defendants in this case cannot be said to have violated ‘clearly established’ First Amendment law.”[13] In other words, while the majority said that it had been the law since 1988 that arresting people to get back at them for using their First Amendment rights is unconstitutional, Kavanaugh was not clear this was the case even in 2013.
In Atherton v. D.C. Office of the Mayor, Kavanaugh joined a decision finding a grand jury member who was removed for being unwilling to find in favor of indictment was not able to sue those who removed him due to qualified immunity.[14] Kavanaugh believed that while service on a regular (or, “petit”) jury entails deference to a juror’s decision on a case, there may not be a constitutional right to avoid being removed from a grand jury for failure to indict.
In a 2018 case, Kavanaugh heard a qualified immunity case where a police officer saw a man who he believed to be drunk in public. The officer ultimately “used his knee to push the back of Hedgpeth’s leg and take him down to the ground. As [the plaintiff] fell, his head struck the grid of the paned window of the bar.”[15] The opinion further notes, “As a result of his head hitting the window, Hedgpeth suffered a concussion, headaches, vertigo, and other post-concussive symptoms.” Yet, “No criminal charges were brought against” the defendant. In other words, despite the harsh arrest, there was not sufficient evidence to actually bring charges. The man sued the police for his injuries.
Kavanaugh joined an opinion saying the police officer deserved qualified immunity in large part because of disputed assertions by the police that the case “it involves a person who exhibited belligerent and erratic behavior (and had been described as hard to handle), who shouted at officers in an increasingly agitated fashion, and who repeatedly refused the officers’ orders (here, to put his hands behind his back).”
A significant inquiry into Kavanaugh’s decisions has not yielded any cases where Kavanaugh found against qualified immunity for a police officer.
Summary
Yesterday, the Trump administration disobeyed a court order to reunify migrant families. This is after the judge found a substantial likelihood of serious constitutional violations and potentially life-long harm to the migrants.
This harm may well end up being compensated for by individual ICE employees. There is a long history of holding officers personally liable for violating people’s clearly established Constitutional rights. Emotional distress harms, including harms that stretch into the distant future, can be recoverable.
However, Trump’s Supreme Court pick has a checkered history of refusing to hold law enforcement accountable. This is so even for egregiously sexist probing of large amounts of naked women arrested for minor crimes such as traffic violations but not similarly situated men.
However, ICE itself may have a stronger claim to immunity from suit. Further, holding ICE itself in contempt is viewed as unlikely. So, the best recourse may be to pursue individual damages lawsuits against ICE employees themselves.
This sets up a significant tension between “just following orders” from ICE management (or Trump), and protecting personal assets. This is especially so when a judge has suggested the conduct at issue likely violates the Constitution. Standing by Trump and ICE while deadlines and rulings are disobeyed may not be a financially or legally wise move.
Cornell Law School is investigating suing responsible parties. This would bring to bear the enormous resources of one of the most respected law schools in the country. If they ultimately decide to bring suit, law professors and student helpers may face off against law enforcement in one of the most consequential decisions in recent history. The Senate battle over confirming Judge Kavanaugh to the Supreme Court may decide the fate of any such lawsuit, as he is reliably conservative and against holding law enforcement accountable.
As the media scrutiny over migrant separations intensifies, the most important question will be whether the Senate confirms a staunchly conservative addition to the Court and establishes the conservative bloc of the Court as having the majority. The psychological and emotional well-beings of thousands of migrant families may hinge on how conservative we allow our courts to become.
Alexander Stern earned his Doctor of Law degree from UC Berkeley School of Law. He is an attorney and the founder of the Attorney IO family of companies.
[1] Wesby v. District of Columbia, No. 12-7127, 816 F.3d 96, 100, 2016 WL 482910, (D.C.Cir. Feb. 8, 2016)
[2] Ms. L. v. U.S. Immigration & Customs Enf’t, Case No.: 18cv0428 DMS (MDD), Docket Entry 83 (S.D. Cal. June 26, 2018)
[3] https://www.fjc.gov/sites/default/files/2014/Section-1983-Litigation-3D-FJC-Schwartz-2014.pdf
[4] Ms. L. v. U.S. Immigration & Customs Enf’t, Case No.: 18cv0428 DMS (MDD), Docket Entry 83 (S.D. Cal. June 26, 2018) (internal citations omitted).
[5] Ms. L. v. U.S. Immigration & Customs Enf’t, Case No.: 18cv0428 DMS (MDD), Docket Entry 83 (S.D. Cal. June 26, 2018)
[6] Ms. L. v. U.S. Immigration & Customs Enf’t, Case No.: 18cv0428 DMS (MDD), Docket Entry 83 (S.D. Cal. June 26, 2018)
[7] Ms. L. v. U.S. Immigration & Customs Enf’t, Case No.: 18cv0428 DMS (MDD), Docket Entry 83 (S.D. Cal. June 26, 2018)
[8] Wesby v. District of Columbia, No. 12-7127, 816 F.3d 96, 100, 2016 WL 482910, (D.C.Cir. Feb. 8, 2016)
[9] Johnson v. Government of the District of Columbia et al, No. 11-5115., (Filed August 1, 2014, D.C. Circ.)
[10] Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976)
[11] Wesby v. District of Columbia, No. 12-7127, 816 F.3d 96, 100, 2016 WL 482910, (D.C.Cir. Feb. 8, 2016)
[12] Moore v. Hartman, 704 F.3d 1003, 1004 (D.C. Cir. 2013)
[13] Moore v. Hartman, 704 F.3d 1003, 1004 (D.C. Cir. 2013)
[14] Atherton v. D.C. Office of the Mayor 706 F.3d 512 (2013).
[15] Hedgpeth v. Rahim et al, No. 16-7146, (D.C. Circ. June 26, 2018)