A federal judge in Chicago on Thursday issued a sweeping injunction that puts more permanent restrictions on the use of force by immigration agents during “Operation Midway Blitz,” saying top government officials lied in their testimony about threats that protesters posed and that their unlawful behavior on the streets “shows no signs of stopping.”
“I find the government’s evidence to be simply not credible,” U.S. District Judge Sara Ellis said in an oral ruling from the bench, describing a litany of incidents over the past month and a half where citizens were tear-gassed “indiscriminately,” beaten and tackled by agents and struck in the face with pepper-spray balls.
Judge orders release of US Border Patrol head Gregory Bovino deposition videos: Watch them here
“The use of force shocks the conscience,” Ellis said.
The judge noted in particular that Border Patrol Cmdr. Gregory Bovino lied repeatedly in his deposition testimony about force that his agents and he himself personally inflicted in incidents across the Chicago area.
“In one of the videos, Bovino obviously attacks and tackles the declarant, Mr. Blackburn, to the ground,” Ellis said. “But Mr. Bovino, despite watching this video (in his deposition) says that he never used force.”
The preliminary injunction largely mirrors — and replaces — a temporary restraining order issued by Ellis in early October that was set to expire at 11:30 a.m. Thursday. She instructed the government to notify each agency of its details and disseminate it to employees by no later than 10 p.m. Thursday.
The judge said she’d put out a more fulsome written ruling at a later time, but for now, it enjoins immigration agents from deploying tear gas or other munitions before issuing two explicit warnings, requires agents in the field to have body-worn cameras and wear clear identification on their uniforms and forbids law enforcement from targeting journalists or interrupting their news gathering in most circumstances.
Unlike the temporary restraining order, the preliminary injunction remains in effect until a final decision is made on the merits of the case, either at trial or through a settlement.
In her detailed ruling, Ellis not only denounced the heavy-handed policies of the administration of President Donald Trump, but issued a biting referendum of its clumsy views of Chicago itself, saying the city she sees “is a vibrant place, brimming with vitality and hope.”
She began by quoting from Carl Sandburg‘s famed poem, “Chicago,” which gave the city the ubiquitous nickname “City of Big Shoulders,” pausing to look up as she read the line: “And having answered so I turn once more to those who sneer at this my city, and I give them back the sneer.”
The judge ended her ruling by quoting from the Founding Fathers, including John Adams, who wrote to his wife, Abigail: “Liberty once lost is lost forever.”
She also quoted a 1737 essay by Benjamin Franklin, who wrote: “The freedom of speech is a principal pillar in a free Government: when this support is taken away the Constitution is dissolved, and Tyranny is erected on its Ruins.”
After court adjourned, more than two dozen plaintiffs attorneys and others involved in the case celebrated in the lobby of the Dirksen U.S. Courthouse, saying it was an important victory in reining in some of the abuses of the last nine months but noting that much work was still left to be done by the community — including staying vigilant and reporting any violations going forward.
“We have seen democracy in action and there is nothing that can stop it,” said Steve Art, the lead plaintiffs’ attorney. “We will win in the end.”
Longtime civil rights attorney Jon Loevy said the case was about a bedrock American principle of people being free to make their voices heard.
“ICE has come to town. They said they were going to go after murderers and rapists, but we all know how that’s played out,” Loevy said. “They are attacking communities. They are grabbing people at work, at Home Depots, people on the street, people with their kids, people near schools. And some people don’t like it, and they have a right to protest. They have a right to stand up and say, ‘We don’t want this. Go home.'”
Asked how the injunction would be enforced going forward, especially in light of the many alleged violations of the restraining order, Art said there was evidence that use of tear gas and other chemicals on protesters has lessened over the past month and the injunction only amps up the pressure to comply.
“When Greg Bovino was called in to testify on the stand because of all the violations that we found, what did we see?” Art said. “We saw the tear gas suddenly stop.”
The U.S. Department of Homeland Security said in a statement Thursday it would appeal the ruling, and that the injunction was “an extreme act by an activist judge that risks the lives and livelihoods of law enforcement officers.”
The statement repeated language used previously about “rioters, gangbangers and terrorists” who have “opened fire” on federal officers, thrown rocks, bottles and other projectiles and rammed and ambushed them.
Ellis, however, noted that the government produced virtually no evidence of any of that in the proceedings before her, despite submitting more than 500 hours of body-cam footage and other videos from protests across the Chicago area.
Ellis’ ruling came after a marathon day of evidence Wednesday that featured the sworn videotaped deposition of Bovino, the tough-talking face of the Trump administration’s immigration enforcement push, as well as live testimony from more than a half-dozen witnesses who said immigration agents pointed guns at citizens and threatened to arrest protesters who were doing nothing more than recording the agents’ activities on the street.
One of them, 12th Ward Ald. Julia Ramírez, testified she went to the scene where an agent had shot a woman in the Brighton Park neighborhood on Oct. 4 and was stunned to see immigration agents rolling what looked like a tank down Kedzie Avenue. Perched on top of the armored vehicle, an agent was pointing a gun at the crowd, she said.
“I couldn’t even believe I was living that. I felt helpless,” Ramírez testified, adding that the episode has had a “chilling” effect on residents and her personally. “I carry my passport around. My grandmother who is also a U.S. citizen doesn’t leave the house. I have to go out for her.”
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But the judge also heard from a Border Patrol supervisor who testified about the violence and threats agents have been subjected to on Chicago-area streets, including protesters who fired commercial-grade fireworks at them, wielded makeshift shields outfitted with nails and threatened to ram their vehicles or call in gang members to shoot them.
Kristopher Hewson, a 19-year Border Patrol veteran, was asked near the end of the day whether he had “hesitation” about testifying.
“Of course, I did,” he says. “Coming in here with my face exposed and my name exposed could eventually lead to a doxing event or threats of harm to my family.”
But it was the testimony of Bovino, who came to Chicago in mid-September after similar operations in Los Angeles, that was center stage.
Although the deposition itself lasted more than six hours, Ellis watched only clips of Bovino’s testimony in which he not only did not back down one bit on the tactics his officers have used during “Operation Midway Blitz,” but even doubled down.
Asked at one point by veteran Chicago civil rights attorney Locke Bowman if he stood by remarks he made to CBS that the use of force at the Broadview ICE facility has been “exemplary,” Bovino at first surprised everyone by saying, “No.”
“The uses of force have been more than exemplary,” Bovino then clarified.
He was also shown video of him tackling a protester at the Broadview immigration facility in September and asked point-blank: Did you apply any force here?
“No,” answered Bovino, explaining that all he saw was himself making a lawful arrest. That’s different, he said, from a “reportable use of force” like deploying tear gas or shooting someone or using “open-hand strikes.”
Asked if force could be applied in the course of an arrest, Bovino seemed momentarily confused by the question.
“It’s possible,” he said. “In this case, the use of force was against me.”
But plaintiffs’ attorneys accused Bovino of lying repeatedly in his testimony, including a blatant misrepresentation about what happened during a high-profile incident in the Little Village neighborhood, where Bovino was seen leading an immigration action that targeted a laundromat and discount mall and sparked vehement protests on the streets.
At one point, Bovino was captured on video throwing tear gas above the heads of the crowd without warning and “despite an absence of threats or violence,” the filing alleged.
Bovino claimed he only did so after being hit in the head with a rock — a statement repeated on social media and again in his deposition, even though no video or other evidence of it happening ever surfaced.
It wasn’t until Bovino came back for a third round of questioning Tuesday that he admitted it had not occurred, Steve Art, lead attorney for the plaintiffs, told the judge in his closing argument.
“A government agent who is leading this operation cannot come into court and make stories up and expect to be treated like a credible witness,” Art said.
In their arguments, the plaintiffs said the abuses of immigration agents on the streets of Chicago comes from the very top, including Trump, who made it “abundantly clear that he elected Chicago for this operation, he then ordered and directed DHS to commence this operation here.”
They played video of DHS Secretary Kristi Noem giving a pep talk to Bovino and his agents at the Broadview facility in early October, saying they should “go hard” at people who voiced dissent against law enforcement tactics — language Bovino later incorporated into his own public statements.
In his closing, Art said DHS has “unleashed weapons of war” on Chicago.
“They are using a gas that is banned even in war,” Art said. “They are inciting violence and then they are using the violence that they have created to justify even more violence. They are harming everyone.”
At the end of his argument, Art turned toward the Department of Justice attorneys at the defense table and said, “In our opinion, these defendants should be ashamed of themselves.”
“In our opinion, this is a disgrace,” Art said. “And one of the great things about our Constitution is that if that’s what we think, we can say it.”
DOJ lawyer Sarmad Khojasteh countered by arguing the case is not about exercising free speech, but allowing law enforcement to do its job in the face of agitators who conflate constitutional rights with violent action.
“This case addresses to what extent does the freedom of speech protect people throwing rocks, bottles, trespassing, pinning down law enforcement, slashing tires, wielding weapons,” Khojasteh said.
After the ruling Thursday, Bowman was asked about his thoughts sitting across from Bovino in the deposition and hearing his curious responses, including denying that he tackled a person when he’d been captured on video doing exactly that.
Bowman said that he didn’t know what was going on in Bovino’s mind during those answers, but if he’d thought of himself as “a smooth liar,” then “in that deposition he was unmasked.”
