Crime & Law

Dismissal of Lawsuit Targeting Immigration Agents’ Use of Force in Chicago Delayed as Impact on Future Enforcement Debated

Department of Justice attorneys claim that once a critical lawsuit brought by Chicago-area journalists and protesters that led to a sweeping injunction restricting federal immigration agents’ use of force across Illinois is dismissed, those parties should be restricted from filing a similar lawsuit regardless of any alleged constitutional violations in the future.

U.S. District Judge Sara Ellis on Thursday did not yet grant a motion to dismiss that class action lawsuit, brought by the plaintiffs themselves, who claimed they had already won their case once Border Patrol and Immigration and Customs Enforcement agents began leaving Chicago last month.

Instead, Ellis wants to give any class members a chance to object to that motion by Dec. 19. The lawsuit was filed after journalists, protesters and clergy members claimed they’d been targeted by federal immigration agents, who subjected them to a “pattern of extreme brutality” through their usage of riot control weapons without justification.

But during Thursday’s hearing, DOJ attorneys argued that once the case is dismissed, protesters and journalists should be barred from filing a new suit even if immigration agents are accused of future constitutional violations.

“A dismissal of this lawsuit can in no way give the defendants a brief hall pass to beat up press, protesters, priests, months, years from now and commit other constitutional violations,” plaintiffs’ attorney Craig Futterman said. “That’s just not how the law works.”

Ellis largely agreed, also noting the plaintiffs can simply request to have their class certification removed before the case is officially dismissed.

Finding that federal immigration enforcement agents repeatedly used force that “shocks the conscience” and then lied about their actions, Ellis last month issued a sweeping preliminary injunction as part of that lawsuit designed to rein in agents’ use of tear gas, pepper balls and other crowd control measures.

Witnesses in her courtroom testified during a daylong hearing last month about agents pointing firearms at them without provocation, being hit with pepper balls or tear gas and threatened simply for documenting immigration detentions.

Ellis repeatedly said that federal agents, including Border Patrol Chief Greg Bovino, lied about the threat posed by protesters and their conduct on the streets of Chicago. Federal agents “indiscriminately” fired tear gas at Chicagoans, tackled them, beat them, struck them with pepper balls and pointed weapons at them, she found.

On Thursday, Ellis agreed with the plaintiffs that dismissal of this case, even with prejudice, would not bar future lawsuits over potential future violations.

“While it was the government’s position that no agent did anything illegal or unconstitutional,” she said, “having watched the videos, having read the reports, having listened to the witnesses, I strongly disagree.”

The Chicago Headline Club, which helped bring the lawsuit, said in a statement that the case “accomplished what we wanted — a ruling that prevented federal agents from interfering with our right to cover the news.”

“We expected an appeal, and we moved to dismiss the suit,” the group said.” We’ll take the win, and we’re prepared to go back to court if federal agents once again threaten our sacred 1st Amendment right.”

The Department of Justice appealed Ellis’ order shortly after it was entered, and already the Seventh Circuit Court of Appeals had stayed the order pending its review. That appeal has since been suspended after the plaintiffs’ dismissal motion was filed.

The Seventh Circuit also previously overturned Ellis’ order requiring Bovino to appear in her chambers for daily check-ins after the lawsuit was first filed.

In moving to dismiss the case, the plaintiffs’ attorneys this week said they haven’t learned of any new reports of “unconstitutional behavior” by immigration agents since Ellis’ order was entered and claimed “Operation Midway Blitz” — the Trump administration’s aggressive immigration enforcement effort launched in September — has “ended.”

Department of Homeland Security spokesperson Tricia McLaughlin called the dismissal request “a perfect example of the bad faith litigation” brought by non-governmental organizations around the country.

“Plaintiffs were happy to sabotage the Trump Administration when they were in front of an activist district judge,” she said in a statement, “but the moment they must explain themselves to an appellate court they run for the hills.”

On Thursday, DOJ attorneys claimed the plaintiffs’ decision to voluntarily dismiss the case is “transparent procedural gamesmanship.”

“To be sure,” they wrote in their response to the dismissal motion, “if Plaintiffs want to stop litigating and this Court grants their motion for dismissal with prejudice, that is beyond Defendants’ control. But this gambit should be seen for what it is.”

The DOJ also made clear “Operation Midway Blitz” and other immigration enforcement efforts around Chicago have not ended and that federal agencies like ICE and Border Patrol “intend to continue their lawful activities in this jurisdiction.”

Heather Cherone contributed to this report.

Note: Loevy and Loevy, the firm that filed the suit, has done legal work for WTTW News.

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