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Paying Damages to Falsely Arrested Citizens—A Commentary by Peter H. Schuck

The following commentary was posted on Huffington Post on January 4, 2012.

Paying Damages to Falsely Arrested Citizens
By Peter H. Schuck

A recent report in the New York Times details how many Americans have been arrested and detained, sometimes for many months, simply because the immigration authorities (known as ICE) mistakenly took them for deportable immigrants. These false imprisonments -- ICE has no legal authority to detain a citizen for deportation proceedings -- are not only alarming, they are unconstitutional deprivations of liberty.

Jacqueline Stevens of Northwestern has shown that violations occur with some frequency. Yet they are probably just the tip of the iceberg; they will surely multiply as the Obama administration ramps up its already record-setting deportation efforts. How could this happen, and what should be done about it?

In any large-scale law enforcement operation, identification mistakes are inevitable -- especially in immigration enforcement. Immigrants and citizens often have the same names. People can become citizens in ways that don't leave obvious paper trails. Few of us carry around documents proving our legal status or have a lawyer at the ready. The immigration agency's databases on people's legal status are notoriously incomplete and error-prone, despite decades of costly efforts to improve them, and the agency is under immense -- and legitimate -- pressure to arrest and remove illegal immigrants, especially criminals.

But to say that false arrests are inevitable says nothing about who should bear the consequences, and how they can be prevented in the future. The first goal, rectification, requires compensation for the indignity, loss of liberty, and other harms that these false arrests have inflicted on our citizens, particularly since these harms fall disproportionately on citizens who happen to fit the immigrant stereotypes. Certain well-established legal remedies exist. The wronged citizen could either sue the United States for money damages under the Federal Tort Claims Act, or sue the individual Homeland Security agents who caused the false arrest, using a so-called Bivens remedy (for the 1971 Supreme Court decision that allows victims of certain constitutional violations to sue individual officials). In reality, however, the citizen would have to find a lawyer to represent him for a fee that the law sets at an unconscionably (perhaps unconstitutionally) low level, making it more difficult to find a good one. In addition, the defendants might be able to invoke certain legal immunities from suit. Even if the citizen eventually won, it could take years and the damages might not compensate him for his full dignitary harm. (If he sues the United States, no punitive damages are possible).

The question of deterrence is even more difficult. Since any judgment against the government would be paid from the general Treasury, not from ICE's budget, the ICE officials in the field who decide whether to arrest would not feel any direct sting or threat from these judgments. Alternatively, officials who are sued directly under Bivens may not have enough money to pay damages to the citizen. But the deterrence goal is even harder to reach because it is subject to another constraint: the risk of over-deterrence. If the threat of liability makes officials so fearful about being sanctioned for any arrests that turn out to be false, they may be so risk-averse that they hang back passively rather than actively discharge their important responsibilities. We should want them to be more careful in deciding whom to arrest, but not so careful that they take action only on the easiest cases.

To this difficult challenge of combining adequate compensation for victims with effective but not excessive deterrence, there is a workable solution. For compensation, Congress should enact a law requiring ICE to pay a statutorily-defined penalty to those citizens who are arrested because they were mistakenly thought to be immigrants and who can document that they were in fact citizens at the time. The administrative compensation process should be simple enough that the citizen doesn't need a lawyer. The penalty should have two components: lost wages and other pecuniary losses from the detention, and a fixed amount for each day of wrongful detention designed to monetize (insofar as possible) the citizen's loss of freedom, stigma, and mistreatment. ICE should also be required to apologize directly to the wronged citizen, and the penalties paid should come out of the agency's budget. (If ICE already possesses the legal authority to make such payments, it can establish such a system by its own regulation).

This compensation scheme, if funded out of ICE's budget, would certainly motivate the agency to change its officer training, internal disciplinary system, and incentives in order to minimize the risk of such behavior in the future while encouraging its officials to vigorously enforce the immigration laws.

Striking the right balance is essential to protecting the public from both law-breaking immigrants and law-breaking officials alike.

Peter H. Schuck is a law professor at Yale and the co-editor (with James Q. Wilson) of Understanding America: The Anatomy of an Exceptional Nation (Public Affairs).