The New York Times | Miriam Jordan
LOS ANGELES — A federal judge has ruled that the government must provide mental health services to thousands of migrant parents and children who experienced psychological harm as a result of the Trump administration’s practice of separating families.
The decision, issued late Tuesday, marks a rare instance of the government being held legally accountable for mental trauma brought about by its policies — in this case, border security measures that locked thousands of migrant parents in detention while their children were placed in government shelters or foster homes.
“This is truly groundbreaking,” Erwin Chemerinsky, dean of the University of California Berkeley School of Law, said of the decision. “The court is recognizing that when a government creates a danger that inflicts trauma, the government is responsible for providing a solution. It is not something I have seen a court do before.”
Judge John A. Kronstadt of the United States District Court in Los Angeles ordered the federal government to immediately make available mental health screenings and treatment to thousands of families forcibly separated under the policy, which was primarily carried out in 2017 and 2018 — though hundreds of similar separations still occur.
In his ruling, Judge Kronstadt referred to previous federal cases that found that governments can be held liable when with “deliberate indifference” they place people in dangerous situations. In the past, the “state-created danger” doctrine has been applied when a police officer ejected a person from a bar late at night in very cold weather, or when a public employer failed to address toxic mold that caused workers to fall ill.
In this case, the judge said, the Trump administration could be held accountable for the enduring psychological harm brought about by forcibly taking children from their parents at the border with no guarantee of when or how they would be reunited.
Thousands of parents spent months in often agonizing limbo, plaintiffs in the case argued, unable to communicate with their children and in many cases not knowing even where the children were being held.
The judge’s preliminary injunction will require the government to arrange mental health screenings along with psychological counseling and other services, perhaps long term. The process could be cumbersome and expensive because thousands of migrants who were affected by the policy are spread across the country and are in various stages of immigration court proceedings. Many already have been deported and would presumably not be eligible for any mental health care.
Carl Tobias, a professor of law at the University of Richmond, who specializes in federal courts, called the decision “pathbreaking.”
“The question is,” he said, “what happens from here and can it be enforced? I assume the government will appeal and get the order stayed because it’s brand new. They’ll say the judge got it wrong.”
The family separations were a key part of the Trump administration’s effort to deter migrant families at the southwestern border, where they have been arriving in large numbers, most of them fleeing violence and deep poverty in Central America.
Under the zero-tolerance policy, those who crossed the border illegally were criminally prosecuted and jailed, a process that the government said could not be carried out without removing their children.
The federal government had reported that nearly 3,000 children were forcibly removed from their parents under the policy. An additional 1,556 migrant families were separated between July 2017 and June 2018, the government said last month.
President Trump suspended the policy in June 2018 amid a public outcry, and a federal judge in San Diego ordered the government to reunify the families.
But Judge Kronstadt found that the government had taken “affirmative steps to implement the zero-tolerance policy,” and that its implementation had caused “severe mental trauma to parents and their children.”
Mark Rosenbaum, a lawyer with Public Counsel, which brought the case along with the law firm Sidley Austin, said the judge had found that the separation policy violated the families’ constitutional rights.
“You cannot have a policy of deliberately trying to injure a family bond,” he said. “Cruelty cannot be part of an enforcement policy, and here it was the cornerstone of the policy.”
Government lawyers had argued that it could not be held liable for mental health problems that might occur in the future, and that there had been no proof of existing irreparable harm to any of those subjected to the policy.
Further, they said that any harm that might have occurred was quickly abated when families were reunited.
The government declined to comment on the court’s ruling.
The lead plaintiff in the case, a Guatemalan migrant identified as J.P., was separated from her teenage daughter at the border on May 21, 2018. For more than a month, the mother said, she had no idea of her child’s whereabouts. They spoke for the first time after they had been apart for 40 days, and only because a lawyer encountered J.P. during a visit to the detention center in Irvine, Calif., where she was being held.
Until then, no one had explained to her in a language she could understand — she speaks a Mayan language — what had happened to her daughter, according to her lawyer, Judy London, who is with Public Counsel. Her daughter, 16, had been sent to a shelter in Phoenix.
“Despite her obvious terror and inability to comprehend what was happening around her, no one made sure she had understood information about how she could contact her daughter,” Ms. London said in a declaration filed with the court.
“To the contrary, the guards insisted she needed no help and could on her own use phones to reach her daughter,” she said.
Their reunion two months later, when her daughter arrived on a flight to Hollywood Burbank Airport near Los Angeles, was witnessed by The New York Times.
The woman, dressed in the black jacket and trousers she had worn during her journey over land to the United States, waited for her daughter’s plane to land. When the girl emerged, J.P. hugged her, cradled her in her arms and stroked her hair as the child wept on her shoulder.
They are living in Florida as their asylum case winds through the immigration courts.