It is hard to make people nostalgic for Japanese internment camps. But Trump and Sessions have been able to do just that.
In 6 weeks, numerous administrators, bureaucrats, officials, and officers have separated 2,000 children from their parents. The children are as young as one year old. A 6-year-old blind boy was taken from his mother. A 39-year-old father from Honduras killed himself after he was separated from his 4 year old child. The officers did not let the parents say goodbye, ripping children away, leaving parents only with the haunting memory of their children’s screams. The Government’s response? Aspire to double the numbers.
This ruthless practice is as gratuitous as it is cruel. There is nothing illegal about seeking asylum or crossing a border to do so. When Soviet ballet dancers defected, our country cheered. Today, the Trump administration instead lies, saying asylum seekers are “illegal,” “criminals,” or deserving of their fate. When that does not work, Trump blames the Democrats for a non-existent mandate or Sessions insists Jesus meant to say that the cruel will inherit the earth, that the little children should come to him after being ripped from their parents’ arms, and he was just kidding about the Golden Rule.
The Trump practices and policies pose risks of real and lasting harm. And let’s be clear they are policies, not laws. In 2013, 92 percent of asylum seekers were not in detention. In 2015, in a sworn affidavit, the Deputy Chief of the Border Patrol explained how the policy then was to keep families together and release them. At the time, fewer than 100 families were detained—together—at any given time.
The American Academy of Pediatrics, American Psychological Association, and other medical professionals are condemning this government-inflicted trauma, predicted to result in developmental delays and unknown “long term damage.” A doctor reported that the separated children are being denied human touch.
There are questions that need answers. Where are the young children housed? Who is changing diapers? Who is monitoring allergies? Who is giving vaccinations? Who is providing the medical care, comfort, and stimulation that children need? When did the for-profit detention centers train guards to be daycare providers? Why are our senators denied access? And what happens when kids start dying?
I don’t teach torts, but if this is government-sanctioned conduct is not the definition of intentional infliction of emotional distress, negligence, tortious interference, and other common law violations, what on earth meets those terms? I suspect there are many talented lawyers—civil litigators, Big Law folks, plaintiffs lawyers—who can figure out how the government action is the basis for cognizable causes of actions. Not class actions. Not habeas petitions. But civil actions naming those responsible by name—in personal and official capacities—to answer for their private wrongdoing in federal court. Tort law is usually a dispute between private parties. But there are federal and state laws—such as § 1983 actions, the Federal Tort Claims Act, the Rehabilitation Act, the Administrative Procedure Act, and even RICO—that can remedy deliberate government action that truly shocks the conscience.
Need a plaintiff? Lawyers at California’s Al Otro Lado, Arizona’s Florence Project, Texas’ ProBAR, and Oregon’s Innovation Law Lab are on the front lines, witnessing these atrocities in real time. At a recent conference, lawyers at the border reported CBP officers telling asylum seekers that “America is Full”; illegally picking out Cubans and other favored nationalities for processing while Central Americans are left to wait; and letting asylum seekers, especially those with children, languish at the border. And when they are let in, ripping away children.
Now that the detention centers are full, the parents who committed no crimes who are waiting to be interviewed by asylum officers are instead “housed” in federal prisons. Even the prison guards are concerned by reckless and senseless actions to place people who have never been charged with a crime in prison.
Just as Trump admitted that his administration’s family separation policy is a bargaining chip for his wall, these private lawsuits too can have the practical effect of incentivizing the federal government to end the practice. And in the meantime, discovery and depositions will get information. Even more practically, defending private law suits will divert attention and resources away from the government attorneys’ efforts to coerce wrongful guilty pleas from asylum seekers or placing them in detention at all. Seeking asylum is not a crime. Illegal entry misdemeanors exempt asylum seekers. But parents have their kids taken away and told they will not see them if they do not pleadto these wrongful prosecutions.
Tort claims, private actions, and civil procedure are in the expertise of private lawyers. Yes, there will be novel claims and creative lawyering to make the right complaint stick. But it’s civil litigation. Amendments can be made. The remedies include monetary damages, cessation of these inhumane practices, reuniting families, vacation of wrongful convictions, provision of the asylum hearing that is due, and returning the wrongfully deported.
So calling all the ambulance chasers. It’s time to be the first responders that these vulnerable children need. It’s been awhile since I was in Sunday School, but I do recall that after those Bible passages mentioned by Sessions, there was one in which the federal courts parted and Big Law lawyers, plaintiff lawyers, and litigators wondering what they can do started flooding the courts with private actions in Biblical proportions. And then justice did roll down like waters in an ever-flowing stream. For the sake of the kids, for the sake of our own humanity, I do hope my memory is right.
Kari Hong is an Assistant Professor at Boston College Law School and founder of a Ninth Circuit clinic.