Claims That ICE Agents Were 'Just Following Orders' Won't Save Them From Liability for Children's Suffering, Legal Scholars Warn

A new report finds that individual Immigration and Customs Enforcement (ICE) agents could be held personally liable for the suffering of families and children under the Trump administration’s “zero tolerance” immigration policy—and warns that the confirmation of Judge Brett Kavanaugh to the U.S. Supreme Court could harm the chance of anyone being held accountable for the forcible separation of families.

U.S. District Judge Dana Sabraw’s order that the government reunite all children under the age of five with their parents went largely unheeded yesterday, as the court-imposed deadline passed with fewer than half of the children being returned to their families.

The disregard for Sabraw’s order would ordinarily put officials including Health and Human Services Secretary Alex Azar at risk for being held in contempt of court, according to Attorney IO, a resource service for attorneys that released the new report on Wednesday.

But law experts interviewed by the firm are also debated how other agency officials could be held accountable—”especially with an administration that might not care about reputational costs,” noted Prof. James E. Pfander of Northwestern University—and some say it’s more likely that ICE agents who are carrying out the Trump administration’s orders could face consequences.

“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,” said Prof. Jaclyn Kelley-Widmer of Cornell Law School.

In civil suits, police officers have been ordered to pay millions of dollars in damages to victims who they’ve injured. With reports surfacing of pregnant women in ICE custody suffering miscarriages after being abused and neglected; children who have been unable to recognize their parents after being reunited; detained women being kept outside in sweltering heat to keep them away from Homeland Security Secretary Kirstjen Nielsen when she visited a facility; and allegations of torture at a detention center in Virginia, agents could be ordered to pay far more.   

“The monetary risk to ICE employees here is proportional to this enormous harm,” wrote Alexander Stern, CEO of Attorney IO. “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.'”